Dennis J. and Carol R. Kraus - Page 9




                                        - 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