Mike J. Graham Trucking, Inc. - Page 12




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               construed as to mean that an officer is an employee                    
               per se.  Only such officers as work for it in fact are                 
               to be so included and, in determining whether an                       
               officer is an employee within the meaning of the                       
               statutes the usual employer-employee tests are to be                   
               applied. * * *                                                         
          Petitioner further emphasizes that common law focuses on whether            
          the alleged employer held the right to control the details of the           
          work performed by the individual and argues that petitioner did             
          not exercise control over Graham during any part of 1995, 1996,             
          or 1997.  There exist, however, at least two fatal defects in               
          petitioner’s arguments in this regard.                                      
               First, from the standpoint of statutory construction, the              
          premise underlying petitioner’s position finds no support either            
          in the structure of the text or in the Tex. Carbonate Co. v.                
          Phinney, supra, decision.  Section 3121(d) is written in the                
          disjunctive, with each of the four paragraphs expressly separated           
          from the next by “or”.  Accordingly, each paragraph affords a               
          separate and independent basis for deeming one engaged to perform           
          services an employee.  Individuals described in paragraphs (1),             
          (3), and (4) of section 3121(d) are therefore frequently referred           
          to as “statutory” employees, subject to FICA and FUTA regardless            
          of their status under common law.  See Joseph M. Grey Pub.                  
          Accountant, P.C. v. Commissioner, supra at 126.                             
               Moreover, Tex. Carbonate Co. v. Phinney, supra, is not                 
          authority to the contrary.  Significant regulatory and statutory            
          developments have occurred since the years in issue in that case.           





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