Beech Trucking Company, Inc., Arthur Beech, Tax Matters Person - Page 25




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          function, and that it had little exposure to losses associated              
          with the Beech Trucking drivers’ work activities.  By contrast,             
          it appears that Beech Trucking bore the risks associated with               
          operating the trucking business on which it relied to generate              
          revenues with which to make weekly payroll reimbursements to ATS.           
               Beech Trucking had an investment in work facilities:  it               
          operated two terminals and owned all the trucks that the drivers            
          operated.  Clearly, the drivers’ work was part of the regular               
          business of Beech Trucking.  The record is silent as to whether             
          ATS had any separate work facilities and is unclear as to the               
          extent of any business ATS might have had apart from the services           
          it provided Beech Trucking.                                                 
               In sum, on the basis of all the evidence in the record, we             
          conclude that Beech Trucking was the drivers’ common law                    
          employer, with respect to which ATS performed principally a                 
          driver procurement and payroll service.  Cf. Profl. & Exec.                 
          Leasing, Inc. v. Commissioner, 89 T.C. at 234.                              
               Accordingly, we conclude that the section 274(n) limitation            
          applies to Beech Trucking as the common law employer of its                 
          drivers and as the party that (as petitioner states on brief)               
          actually bore the expense of the expenditures for which the per             
          diem payments were made.  See sec. 1.274-2(f)(2)(iv), Income Tax            










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