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be resolved in favor of employment. Breaux & Daigle, Inc. v.
United States, 900 F.2d 49, 52 (5th Cir. 1990).
Section 3121(d) also defines an “employee” for employment
tax purposes as (1) an individual who performs services for
remuneration as a agent-driver or commission-driver engaged in
distributing meat products, vegetable products, bakery products,
beverages (other than milk), or laundry or dry cleaning services
and (2) a traveling or city salesman, other than an agent-driver
or commission-driver, engaged on a full-time basis in the
solicitation on behalf of, and the transmission to, his principal
of orders from wholesalers, retailers, restaurants, or other
similar establishments for merchandise for resale. Sec.
3121(d)(3)(A) and (D). A worker can be a “statutory employee”
under section 3121(d)(3) only if he is not a common law employee
under section 3121(d)(2). We therefore first must decide whether
petitioner’s workers were common law employees, and if they were
not then we shall decide whether they were statutory employees.
Lickliss v. Commissioner, T.C. Memo. 1994-103.
A. Whether Petitioner’s Workers Were Common Law Employees
This Court considers the following factors to decide whether
a worker is a common law employee or an independent contractor:
(1) The degree of control exercised by the principal; (2) which
party invests in work facilities used by the individual; (3) the
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