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certain high priority calls) is incidental and related only to
the on-duty, rather than the off-duty, employment relationship.
Milian v. Commissioner, T.C. Memo. 1999-366; Kaiser v.
Commissioner, T.C. Memo. 1996-526, affd. without published
opinion 132 F.3d 1457 (5th Cir. 1997); March v. Commissioner,
T.C. Memo. 1981-339. Moreover, we reject petitioner’s contention
that the off-duty employers indirectly paid him on behalf of TPD
when he responded to certain high priority calls. We recognize
that petitioner was on-call during off-duty hours. There is no
evidence, however, that TPD had any agreement with the off-duty
employers or required them to continue paying petitioner on
behalf of TPD.
Second, the off-duty employers operated separately from TPD.
See March v. Commissioner, supra (stating that the source and
method of payment are also factors in establishing whether an
employee-employer relationship existed). Petitioner was paid
directly by each off-duty employer, and his earnings were not
reported to TPD. Each off-duty employer treated petitioner as an
independent contractor and issued Forms 1099-MISC, Miscellaneous
Income.
Third, petitioner’s off-duty services were performed for,
and were directly beneficial to, the off-duty employer. Milian
v. Commissioner, supra (stating that performance of services by
the employee for the employer is implicit in an employment
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Last modified: May 25, 2011