Frank and Barbara Biehl - Page 27




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          in the taxpayer’s former trade or business of being an employee             
          of his former employer.12                                                   
               It is a well-settled axiom that the touchstone of the                  
          employer-employee relationship is the employer’s dominion and               
          control over, or right to control, the services performed by the            
          employee.  Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318                 
          (1992); Gen. Inv. Corp. v. United States, 823 F.2d 337, 341 (9th            
          Cir. 1987).  That touchstone is missing when the expense is                 
          incurred after the relationship has ended.  If the former                   
          employee is no longer under the dominion and control of the                 
          former employer, the expense cannot be properly characterized as            
          having been “paid or incurred by the employee in connection with            
          the performance of services as an employee of the employer.”  In            
          such a case, as in the case at hand, the expense has a                      
          “connection” to the employee’s performance of services only in              
          the attenuated or remote sense that the expense can be considered           
          to relate back to, or to have arisen from, the employment                   
          relationship.                                                               



               12Property or services provided to an employee of the                  
          employer are excluded from gross income as a working condition              
          fringe benefit under sec. 132(a)(3) to the extent that, if the              
          employee paid for such property or services, the payment would be           
          allowed as a deduction under sec. 162.  See sec. 132(d).  The               
          regulations under sec. 132 explicitly give “employee” the meaning           
          we find implicit in sec. 62(a)(2)(A):  an “employee” for purposes           
          of sec. 132(a)(3), concerning working condition fringe benefits,            
          is “Any individual who is currently employed by the employer.”              
          Sec. 1.132-1(b)(2)(i), Income Tax Regs.                                     





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