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employees but to operate Beech Trucking equipment. A contract
purporting to create an employer-employee relationship is not
controlling where application of the common law factors to the
facts and circumstances indicates the absence of such a
relationship. Profl. & Exec. Leasing, Inc. v. Commissioner,
supra at 233. Here, the employment agreements reflect at least
three factors that point to Beech Trucking as the common law
employer: (1) Beech Trucking provided the tools and
instrumentalities of the drivers’ work; (2) ATS apparently had no
right to assign additional projects to the drivers, the drivers
being effectively assigned to Beech Trucking; and (3) the
relationship between the drivers and Beech Trucking was
apparently of indefinite duration.
Petitioner had final authority to terminate the Beech
Trucking drivers. He testified that “If they [the Beech Trucking
drivers] were late on loads, * * * I would turn them back to
Arkansas Trucking Services and tell them we couldn’t use them.”
Although ATS issued the drivers’ weekly paychecks, paid
workers’ compensation, and maintained a section 401(k) plan for
the drivers, Beech Trucking reimbursed ATS weekly for its
expenditures, plus a service charge. As petitioner states on
brief, ATS “actually made the expenditures while Beech Trucking
actually would bear the cost.” We infer that ATS’s opportunity
for profit related primarily to its bookkeeping and payroll
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