Joseph M. Grey Public Accountant, P.C. - Page 13




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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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