Edward Charles Jones - Page 11

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          year stands alone.  Pekar v. Commissioner, 113 T.C. 158, 166 (1999).        
               On his petition, petitioner referenced the years 1997 and              
          1998 as being at issue; however, the notice of deficiency makes             
          no determinations with respect to his 1997 tax year.  At trial,             
          petitioner argued that the Taxpayer Advocate office of the                  
          Internal Revenue Service had represented to him that his passive            
          activity issue would be combined for 1997 and 1998 and contended            
          that respondent should be bound by his own standards as reflected           
          by such representations.  In spite of petitioner’s apparent                 
          frustration, the fact remains that the notice of deficiency on              
          which this case is based addresses only petitioner’s 1998 tax               
          year.  The 1997 tax year is not before the Court, and, therefore,           
          this Court has no jurisdiction over that year.                              
               The issue for decision is whether petitioner was an employee           
          or independent contractor of Techmatics during 1998.6  Whether an           
          individual is an employee or independent contractor is a factual            
          question to which common law principles apply.  Nationwide Mut.             
          Ins. Co. v. Darden, 503 U.S. 318, 323 (1992); Weber v.                      

               6    Sec. 7491, under certain circumstances, places the                
          burden of proof on respondent with respect to a taxpayer’s                  
          liability for taxes in court proceedings arising in connection              
          with examinations commencing after July 22, 1998.  The                      
          examination of petitioner’s return commenced after July 22, 1998.           
          However, the parties did not address the applicability of sec.              
          7491 to this case.  Therefore, the Court decides this case on a             
          preponderance of the evidence and without regard to the burden of           
          proof.  See Kraus v. Commissioner, T.C. Memo. 2003-10.                      

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