Mike J. Graham Trucking, Inc. - Page 5




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          incorporation in 1991, petitioner has not reported paying Graham            
          a salary or wages for work he performed on behalf of petitioner.            
               Petitioner did not file a Form 941, Employer’s Quarterly               
          Federal Tax Return, for any quarter in 1995, 1996, or 1997 or a             
          Form 940, Employer’s Annual Federal Unemployment (FUTA) Tax                 
          Return, for 1995, 1996, or 1997.  Throughout this period,                   
          petitioner did not treat any individual as an employee.                     
          The Grahams’ Tax Reporting                                                  
               For each of the years 1995, 1996, and 1997, Graham and                 
          Mrs. Graham filed a joint Form 1040, U.S. Individual Income Tax             
          Return.  On these returns, Graham and Mrs. Graham reported as               
          ordinary income from “Rental real estate, royalties,                        
          partnerships, S corporations, trusts, etc.” $10,696.21,                     
          $27,234.33, and $19,035.05 for 1995, 1996, and 1997,                        
          respectively.  Attached Schedules E, Supplemental Income and                
          Loss, characterize the foregoing amounts as nonpassive income               
          from Schedules K-1.                                                         
          The Notice of Determination                                                 
               Prior to the audit underlying the instant case covering                
          1995, 1996, and 1997, respondent neither audited petitioner for             
          employment tax purposes nor challenged petitioner’s treatment of            
          Graham as other than an employee.  Thereafter, on February 23,              
          2000, respondent sent to petitioner the notice of determination             
          at issue in this proceeding.  The notice was based on a                     






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