Harold E. Nicholas - Page 12




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          petitioner would be an employee.  We recognize that Empire’s                
          supervision of the specifics of petitioner’s daily work was                 
          minimal.  This, however, results from the professional nature of            
          petitioner’s work.  As we noted in James v. Commissioner, 25 T.C.           
          1296, 1301 (1956):                                                          
               The methods by which professional men work are prescribed by           
               the techniques and standards of their professions.  No                 
               layman should dictate to a lawyer how to try a case or to a            
               doctor how to diagnose a disease.  Therefore, the control of           
               an employer over the manner in which professional employees            
               shall conduct the duties of their positions must necessarily           
               be more tenuous and general than the control over                      
               nonprofessional employees.  Yet, despite this absence of               
               direct control over the manner in which professional men               
               shall conduct their professional activities, it cannot be              
               doubted that many professional men are employees. * * *                
               We also recognize that petitioner’s daily work life under              
          his association with Empire may not have differed significantly             
          from that when he was working as a sole proprietor.  On a daily             
          basis, this may have been true.  But, it ignores the fact that              
          petitioner’s relationship with former customers was fundamentally           
          altered, albeit perhaps formally.  Moreover, by joining Empire,             
          petitioner chose the benefits of working for a corporation, and             
          he cannot, when that form seems disadvantageous, disavow the                
          corporate structure.  See Moline Props. v. Commissioner, 319 U.S.           
          436 (1943).                                                                 
               On balance, considering the record and weighing all of the             
          factors, we conclude that petitioner was a common law employee              
          and not an independent contractor.  Since petitioner was not an             






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