Ewens and Miller, Inc. - Page 24




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          bakery workers, (2) any of the cash payroll workers,9 (3) any of            
          the route distributors, and (4) three outside sales workers.10              
               Petitioner did not demonstrate that it reasonably relied               
          upon judicial precedent, published rulings, technical advice, a             
          letter ruling, or a past audit.  Petitioner argues that it relied           
          on a longstanding practice in the industry in which it was                  
          engaged--“co-packing”.                                                      
               “Co-packing” is where a company does not produce its product           
          itself; it hires others to produce its goods for it.  Petitioner            
          presented no evidence, however, on how the practice of co-packing           
          related to the treatment of its workers as employees.                       
          Furthermore, petitioner did not offer any witnesses to testify              
          about an industry practice of co-packing and the treatment of               
          “co-packers” as independent contractors.  See, e.g., Gen. Inv.              
          Corp. v. United States, 823 F.2d at 341.                                    
               Additionally, petitioner did not demonstrate, in some other            
          manner, a reasonable basis for not treating the bakery workers,             
          cash payroll workers, route distributors, and outside sales                 
          workers as employees.  We conclude that petitioner had no                   
          reasonable basis for treating the bakery workers, cash payroll              



               9  Miller agreed with the revenue officer who testified at             
          trial that the cash payroll workers were not a corporation.                 
               10  We note that only 7 of these 38 workers earned less than           
          $600.  See sec. 6041 (information returns required for payments             
          of $600 or more); sec. 1.6041-1, Income Tax Regs.                           





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