- 17 -
For the reasons previously discussed, Tex. Carbonate Co. v.
Phinney, supra, does not afford a reasonable basis for disregard
of the explicit rules of section 3121(d)(1) and sections
31.3121(d)-1(b) and 31.3306(i)-1(e), Employment Tax Regs.
Equally unavailing in this regard is Automated Typesetting, Inc.
v. United States, supra. The District Court in that case simply
evaluated the employment relationship of the involved individuals
both through a common law analysis and through application of the
provisions relating to corporate officers. Id. at 519-522. In
deciding that the individuals qualified as employees under either
rubric, the court did not repudiate the statutory treatment of
corporate executives. Id. at 520, 522; see also Joseph M. Grey
Pub. Accountant, P.C. v. Commissioner, supra at 129 n.5.
Moreover, even if we were to assume arguendo that the cited
cases could offer a reasonable basis for treating an officer as a
nonemployee, petitioner has failed to establish reliance on the
claimed precedent as a factual matter. To fall within the safe
harbors of Section 530(a)(2), the taxpayer must have relied on
the alleged authority during the periods in issue, at the time
the employment decisions were being made. The statute does not
countenance ex post facto justification. See 303 W. 42nd St.
Enters., Inc. v. IRS, 181 F.3d 272, 277, 279 (2d Cir. 1999)
(reversing and remanding because it was “unclear from the record
whether * * * [the taxpayer] in fact relied on any specific
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