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in three-party employment situations. Vizcaino v. U.S. Dist.
Ct., 173 F.3d 713, 723 (9th Cir. 1999); Profl. & Exec. Leasing,
Inc. v. Commissioner, supra at 232 (applying the common law
factors to determine that the taxpayer, who leased management and
professional personnel to commercial businesses and professional
practices, was not the common law employer of the personnel for
purposes of the “exclusive benefit” rule of section 401(a)(2)
(citing Bartels v. Birmingham, 332 U.S. 126, 132 (1947))).
The analysis of common law employment status is
“extraordinarily fact intensive”. Alford v. United States, supra
at 337. In the instant case, the evidentiary basis for analyzing
the relevant common law factors is relatively sparse, owing
largely to petitioner’s failure to introduce in evidence or
otherwise establish the precise terms of any lease agreement,
employment agreement, or contract between Beech Trucking and ATS.
Nor does the record contain the drivers’ employment contracts.
Moreover, the record does not always clearly distinguish the
roles of Beech Trucking and ATS with respect to the drivers’
activities. We infer that their roles were to some degree
blurred, especially taking into consideration that Harvey, who
owned ATS, also owned 26 percent of Beech Trucking, and that
petitioner, who was president and 55-percent owner of Beech
Trucking, was an employee of ATS.
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