Ewens and Miller, Inc. - Page 11




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          characterization by the parties as some other relationship is of            
          no consequence.  Sec. 31.3121(d)-1(a)(3), Employment Tax Regs.              
               For the purposes of employment taxes, the term “employee”              
          includes “any individual who, under the usual common law rules              
          applicable in determining the employer-employee relationship, has           
          the status of an employee”.  Sec. 3121(d)(2); accord sec.                   
          3306(i).  Although the determination of employee status is to be            
          made by common law concepts, a realistic interpretation of the              
          term “employee” should be adopted, and doubtful questions should            


               7(...continued)                                                        
                                                                                     
                    Generally such relationship exists when the person                
               for whom services are performed has the right to                       
               control and direct the individual who performs the                     
               services, not only as to the result to be accomplished                 
               by the work but also as to the details and means by                    
               which that result is accomplished.  That is, an                        
               employee is subject to the will and control of the                     
               employer not only as to what shall be done but how it                  
               shall be done.  In this connection, it is not necessary                
               that the employer actually direct or control the manner                
               in which the services are performed; it is sufficient                  
               if he has the right to do so.  The right to discharge                  
               is also an important factor indicating that the person                 
               possessing that right is an employer.  Other factors                   
               characteristic of an employer, but not necessarily                     
               present in every case, are the furnishing of tools and                 
               the furnishing of a place to work, to the individual                   
               who performs the services.  In general, if an                          
               individual is subject to the control or direction of                   
               another merely as to the result to be accomplished by                  
               the work and not as to the means and methods for                       
               accomplishing the result, he is an independent                         
               contractor.  * * *                                                     
          See also sec. 31.3401(c)-1(b), Employment Tax Regs. (using                  
          virtually identical language).                                              





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