- 9 - that he is not treated as an employee with respect to those services for Federal tax purposes. At the outset, petitioner does appear to come within the rather narrow definition of a “direct seller”. Petitioner appears to partially meet the second test in that his remuneration was based, in part, on sales as opposed to hours worked. However, the union contract, which governed petitioner’s relationship with IBC, did not provide that he was not to be treated as an employee with respect to those services for Federal tax purposes. Accordingly, petitioner is not entitled under section 3508 to report income and deductions on a Schedule C. With respect to petitioner’s claim that he is not a common law employee and that he is a statutory employee, we first consider whether he is a common law employee. If petitioner falls within the definition of common law employee, he is precluded from relying on section 3121(d)(3)(A). See Ewens & Miller, Inc. v. Commissioner, 117 T.C. 263, 269 (2001). The question of whether an individual is a common law employee is one of fact. Profl. & Executive Leasing, Inc. v. Commissioner, 89 T.C. 225, 232 (1987), affd. 862 F.2d 751 (9th Cir. 1988). As a guide to deciding common law employee status, courts have used seven factors. In Weber v. Commissioner, 103 T.C. 378,Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: May 25, 2011