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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,
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