Ewens and Miller, Inc. - Page 7




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          (5) employees not wishing to become independent contractors would           
          be discharged prior to January 1, 1992.                                     
               After January 1, 1992, there was no change in the activities           
          petitioner’s workers performed (i.e., in 1992, the workers did              
          much of the same work).  The reason petitioner wanted to convert            
          its employees to independent contractors was to protect                     
          petitioner from lawsuits6 and to have better control over the               
          activities of its workers.  Petitioner was advised by an attorney           
          to convert the employees to independent contractors to limit                
          petitioner’s liability.  Petitioner continued directly paying its           
          workers.                                                                    
               Several of petitioner’s checks issued to its workers, and              
          signed by Miller, in 1992 bear the notation “payroll”.                      
          Additionally, there was a debit slip dated July 3, 1992, for                
          petitioner’s bank account that noted that cash was withdrawn for            
          payroll.                                                                    
               For 1991, petitioner reported salaries and wages of $196,433           
          on its Federal corporate income tax return, and it issued 51                
          Forms W-2 to its employees reporting total wages of $196,432.60.            
          Petitioner also reported $81,143 of subcontractual labor, and it            
          issued 10 Forms 1099-MISC reporting total payments of $37,930.74.           


               6  In 1991, some of petitioner’s workers were stealing and             
          sabotaging its products.  There were walnut shells in the cookies           
          and nails in the brownies.  Consumers of petitioner’s products              
          had retained attorneys and were suing petitioner.                           





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