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An individual is a statutory employee under section 3121(d)(3)(A)
only if such individual is not a common-law employee under
section 3121(d)(2).
There is no dispute that petitioner was engaged in the
distribution and delivery of bakery products as described in
section 3121(d)(3)(A). Petitioner, however, did not have a
substantial investment in the facilities used in connection with
the performance of his services. Moreover, the first part of
section 3121(d)(3) states clearly that section 3121(d)(3) applies
only to an individual "other than an individual who is an
employee under paragraph (1) or (2)". Therefore, it is
necessary, for purposes of this case, to view petitioner's
situation under section 3121(d)(1) and (2), and, if his situation
falls within either of these categories, petitioner cannot
qualify as a statutory employee under section 3121(d)(3). An
individual is a statutory employee under section 3121(d)(3)(A)
only if such individual is not a common-law employee under either
section 3121(d)(1) or (2). Lickiss v. Commissioner, T.C. Memo.
1994-103.
Whether an individual is a common-law employee under section
3121(d)(2) is a question of fact. Profl. & Executive Leasing,
Inc. v. Commissioner, 89 T.C. 225, 232 (1987), affd. 862 F.2d 751
(9th Cir. 1988); Simpson v. Commissioner, 64 T.C. 974, 984
(1975). Among the relevant factors in determining the substance
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