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exercise control over Mr. Grey in the performance of his
services. In that regard, we note that Mr. Grey chose to do
business in corporate form through petitioner. His assertion
before this Court (on behalf of petitioner) that petitioner
logically cannot exercise control over him in the performance of
his services (presumably owing to his dual role as service
provider to, and sole shareholder of, petitioner) amounts to a
request that we disregard the corporate form in deciding the
issue before us. That we shall not do. See Moline Props. Inc.
v. Commissioner, 319 U.S. 436 (1943).5
4(...continued)
Moreover, the FUTA definition of “employee” in effect for such
years, while stating the general rule that such term includes
corporate officers, appears to have contemplated that a corporate
officer could be an independent contractor under the common law,
in which case the officer would not be treated as an employee for
FUTA purposes. See, e.g., sec. 1607(i), I.R.C. 1939. In light
of the regulatory and statutory developments that occurred after
the years at issue in Tex. Carbonate Co. v. Phinney, 307 F.2d at
291-292, the Court of Appeals’ conclusion therein that “the usual
employer-employee tests are to be applied” in determining the
status of a corporate officer for employment tax purposes may no
longer be relevant. See C.D. Ulrich, Ltd. v. United States, 692
F. Supp. 1053, 1055 (D. Minn. 1988) (“Under both the weight of
the case law and under the treasury regulations, a corporate
officer is to be treated as an employee if he renders more than
minor services.”).
5 Petitioner also cites Automated Typesetting, Inc. v.
United States, 527 F. Supp. 515 (E.D. Wis. 1981) in support of
its position that common law factors should control in
determining whether a corporate officer is an employee for
employment tax purposes. The court in Automated Typesetting,
Inc., however, did not eschew the statutory mandate regarding
classification of corporate officers; rather, it simply found
that the individuals in question were employees under a common
(continued...)
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