Mike J. Graham Trucking, Inc. - Page 11




                                       - 11 -                                         
          100 (3d Cir. 2002).  Furthermore, an employer cannot by the                 
          expedient of characterizing moneys paid in remuneration for                 
          services as distributions of net income, rather than as wages,              
          avoid FICA and FUTA liabilities.  Id. at 145-146.  Thus, as in              
          Veterinary Surgical Consultants, P.C. v. Commissioner, supra at             
          145-146, and Joseph M. Grey Pub. Accountant, P.C. v.                        
          Commissioner, 119 T.C. 121, 128 (2002), we reject any suggestion            
          that petitioner’s passing through of its net income to Graham and           
          other shareholders precludes the finding of an employer-employee            
          relationship between petitioner and Graham.  We likewise reject             
          as not germane to the question before us petitioner’s reliance on           
          section 1372, addressing fringe benefits under subtitle A, and              
          the reference to that statute in Durando v. United States, supra            
          at 551.  See Veterinary Surgical Consultants, P.C. v.                       
          Commissioner, supra at 147-148, 150.                                        
                    2.  Contentions Regarding Common Law Employment                   
               Petitioner contends that “employee” as used throughout                 
          section 3121(d) must be construed in a manner consistent with its           
          use in section 3121(d)(2), such that the usual common law rules             
          for determining existence of an employer-employee relationship              
          are to be taken into account.  In support of this position,                 
          petitioner quotes the following passage from Tex. Carbonate Co.             
          v. Phinney, 307 F.2d 289, 291-292 (5th Cir. 1962):                          
                    The statutory definition of “employees” as                        
               including officers of a corporation will not be so                     





Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  Next

Last modified: May 25, 2011