Ewens and Miller, Inc. - Page 17




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                    6. Permanency of the Relationship                                 
               A transitory work relationship may point toward independent            
          contractor status.  Herman v. Express Sixty-Minutes Delivery                
          Serv., Inc., 161 F.3d 299, 305 (5th Cir. 1998).  If, however, the           
          workers work in the course of the employer’s trade or business,             
          the fact that they do not work regularly is not necessarily                 
          significant.  Avis Rent A Car Sys. v. United States, 503 F.2d               
          423, 430 (2d Cir. 1974) (transients may be employees); Kelly v.             
          Commissioner, T.C. Memo. 1999-140 (working for a number of                  
          employers during a tax year does not necessitate treatment as an            
          independent contractor).  In considering the permanency of the              
          relationship, we must also consider petitioner’s right to                   
          discharge the worker, and the worker’s right to quit, at any                
          time.                                                                       
                         a. Cash Payroll Workers                                      
               The cash payroll workers began working for petitioner in               
          1986.  The relationship between petitioner and the cash payroll             
          workers was permanent as opposed to transitory.                             
                         b. Bakery Workers                                            
               At least 11 of the bakery workers worked for petitioner in             
          1991 and 1992.  The record is silent regarding whether any of the           
          other 37 bakery workers working for petitioner in 1992 worked for           
          petitioner prior to 1992.  On the basis of this record, we                  








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