Oliver K. Robinson and Deborah L. Robinson, et al. - Page 21




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         subject to self-employment tax.13  The Robinsons contend that they           
         were officers and employees of Career and, as such, were not                 
         subject to self-employment tax.                                              
              Section 1401(a) imposes tax on a taxpayer’s self-employment             
         income.  The tax is imposed on the gross income derived by an                
         individual from any trade or business carried on by the                      
         individual, less deductions.  The term “trade or business” in                
         section 1402 has the same meaning as it does for purposes of                 
         section 162.  Sec. 1402(c).  The carrying on of a trade or                   
         business for purposes of self-employment tax generally does not              
         include the performance of services as an employee.  Sec.                    
         1402(c)(2).  Section 1402(d) references section 3121 (relating to            
         the Federal Insurance Contributions Act) for the definition of               
         the term “employee”, as follows:  (1) Any officer of a                       
         corporation; or (2) any individual who, under the usual common               
         law rules applicable in determining the employer-employee                    


               13  We note that the Robinsons have not shown that there was           
          a factual predicate for reporting discharge of indebtedness                 
          income; i.e., they have not shown the identity of the creditor,             
          the amount and terms of the indebtedness, or the cancellation               
          event.  The existence of a debtor-creditor relationship is a                
          necessary predicate to a finding of cancellation of indebtedness            
          income.  Millar v. Commissioner, 540 F.2d 184, 186 (3d Cir.                 
          1976).                                                                      
               On brief, the Robinsons argue that they received the income            
          as employees of Career and not self-employed individuals.  Even             
          though the Robinsons reported the income as being from discharge            
          of indebtedness, respondent does not argue that the Robinsons’              
          reporting position prohibits their now claiming the amounts to be           
          compensation.  Respondent contends that the income is                       
          compensation from self-employment.                                          




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