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Given that sections 31.3121(d)-1(b) and 31.3306(i)-1(e),
Employment Tax Regs., were promulgated after those years and that
the FUTA definition of “employee” then in effect appears to have
contemplated a corporate officer who could be an independent
contractor under common law, see, e.g., sec. 1607(i), I.R.C.
1939, the Court of Appeals’ statements concerning common law
rules “may no longer be relevant.” Joseph M. Grey Pub.
Accountant, P.C. v. Commissioner, supra at 128 n.4. The opinion
in Tex. Carbonate Co. v. Phinney, supra at 291, recognized that,
regardless of the test purportedly being applied, “such officers
as work for * * * [a corporation] in fact” are included as
employees. The court also addressed the impact of an alleged
absence of control in that case, as follows:
Even though an absence of control is shown, and this as
we have noted has not been done, the force of the
factor is diminished to near de minimis by the fact
that * * * [the service provider] himself was a member
of the Board of Directors, a Vice President, and the
executive of the Company in charge of its sales and the
development of its markets. * * * [Id. at 292.]
Hence, critical components of the analysis in Tex. Carbonate Co.
v. Phinney, supra, are consistent with the current regulatory
approach to officers and contrary to petitioner’s position.
Second, from a factual standpoint, even if the common law
control factor were pertinent to our evaluation, petitioner has
failed to establish a lack of control over Graham in the
performance of his services. As in Joseph M. Grey Pub.
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