- 7 -
if he is an independent contractor, then he may qualify as a
“statutory employee”. Lickiss v. Commissioner, T.C. Memo. 1994-
103.
Whether an employer-employee relationship3 exists is a
question of fact. See Air Terminal Cab, Inc. v. United States,
478 F.2d 575, 578 (8th Cir. 1973); Professional & Executive
Leasing, Inc. v. Commissioner, 89 T.C. 225, 232 (1987), affd. 862
F.2d 751 (9th Cir. 1988). If an employer-employee relationship
exists, its characterization by the parties as some other
relationship is of no consequence. See sec. 31.3121(d)-1(a)(3),
Employment Tax Regs.
3 Sec. 31.3401(c)-1(b), Employment Tax Regs., defines an
employer-employee relationship as follows:
(b) 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. The right to discharge is also an
important factor indicating that the person possessing
that right is an employer. Other factors
characteristic of an employer, but not necessarily
present in every case, are the furnishing of tools and
the furnishing of a place to work to the individual who
performs the services. 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.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011