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C. Employee Status Under Section 3121(d)(1)
Having disposed of petitioner’s principal arguments, we turn
next to the rather straightforward application of section
3121(d)(1). The parties have stipulated that Mr. Grey was an
officer of petitioner’s (president) and that he performed
numerous services for petitioner. As a practical matter, those
stipulations tend to establish Mr. Grey’s status as an employee
under section 3121(d)(1) and section 31.3121(d)-1(b), Employment
Tax Regs. However, it is conceivable that Mr. Grey was not
acting in his capacity as president when he performed such
services.6 For the sake of completeness, we now address that
possibility.
The parties did not stipulate whether Mr. Grey performed the
services in question as petitioner’s president or in some other
capacity (i.e., as an independent contractor). However, we think
it a fair inference that Mr. Grey performed such services as
petitioner’s president. We know that he was president and that
he performed numerous services, and there is no convincing
evidence, such as a service agreement, that petitioner engaged
5(...continued)
law analysis as well. Petitioner’s focus on the court’s
discussion of common law factors is therefore misplaced.
6 See Rev. Rul. 82-83, 1982-1 C.B. 151, 152 (“It is a
question of fact in all cases whether officers of a corporation
are performing services within the scope of their duties as
officers or whether they are performing services as independent
contractors.”).
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