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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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