Mike J. Graham Trucking, Inc. - Page 14




                                       - 14 -                                         
          Accountant, P.C. v. Commissioner, supra at 128-129, to accept               
          petitioner’s contentions in this regard would be the equivalent             
          of disregarding the corporate form in which Graham chose to                 
          conduct his business.  Caselaw does not permit a taxpayer to use            
          his or her dual role as a shareholder of and service provider to            
          a corporation as grounds for ignoring the legal ramifications of            
          the business construct so selected.  Moline Props., Inc. v.                 
          Commissioner, 319 U.S. 436, 438-439 (1943); Joseph M. Grey Pub.             
          Accountant, P.C. v. Commissioner, supra at 129.                             
                    3.  Application of Section 3121(d)(1)                             
               On the basis of the foregoing analysis, application of                 
          section 3121(d)(1) is not precluded or limited here by                      
          considerations pertaining to Graham’s status as an S corporation            
          shareholder or under the common law.  Section 3121(d)(1) and                
          sections 31.3121(d)-1(b) and 31.3306(i)-1(e), Employment Tax                
          Regs., specify that corporate officers are to be classified as              
          employees if they perform more than minor services and receive or           
          are entitled to receive remuneration.  The overwhelming weight of           
          the evidence here shows that Graham’s activities vis-a-vis                  
          petitioner met these criteria.  (Accordingly, considerations with           
          respect to burden of proof do not affect our analysis on this               
          point.)  Graham at all relevant times served as petitioner’s                
          president and worked approximately 40 hours per week for                    
          petitioner in all aspects of petitioner’s trucking operations.              






Page:  Previous  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  Next

Last modified: May 25, 2011