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necessary business expenses, and petitioner failed to
substantiate the expenses.
1. Statutory Employee
Petitioner contends that he was a statutory employee under
section 3121(d)(3)(A), as he was a commission-driver who
delivered bakery products. Section 3121(d) defines “employee”
for employment tax purposes as follows:
SEC. 3121(d). Employee.--For purposes of this
chapter, the term “employee” means--
(1) any officer of a corporation; or
(2) any individual who, under the usual
common law rules applicable in determining the
employer-employee relationship, has the status of
an employee; or
(3) any individual (other than an individual
who is an employee under paragraph (1) or (2)) who
performs services for remuneration for any
person--
(A) as an agent-driver or commission-
driver engaged in distributing meat products,
vegetable products, bakery products,
beverages (other than milk), or laundry or
dry-cleaning services, for his principal;
[Emphasis added.]
A taxpayer cannot be a “statutory employee” under section
3121(d)(3)(A) unless he is not a common-law employee under
section 3121(d)(2). We therefore must decide whether petitioner
was a common-law employee or independent contractor, and
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