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the work, (2) furnishing of the tools and the work place, (3)
withholding of taxes, workers’ compensation, and unemployment
insurance funds, (4) right to discharge, and (5) permanency of
the relationship. See Professional & Executive Leasing, Inc. v.
Commissioner, 862 F.2d at 753 (citing United States v. Silk, 331
U.S. 704, 714-716 (1947); Simpson v. Commissioner, supra at
984-985). Although each factor is important, the test that is
usually considered fundamental is set out in the regulations.
Section 31.3401(c)-1(b), Employment Tax Regs., which generally
sets forth rules as to an employer’s obligation to withhold
Federal income taxes on the payment of wages, provides:
Generally the relationship of employer and employee
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. * * * 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 not an employee.
See also secs. 31.3121(d)-1(c)(1) and 31.3306(i)-1(b), Employment
Tax Regs., providing language virtually identical to sec.
31.3401(c)-1(b), Employment Tax Regs., in the case of the Federal
Insurance Contributions Act and the Federal Unemployment Tax Act,
respectively.
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