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With that guidance, we consider whether petitioner is a
common law employee. Generally, petitioner was engaged in
driving IBC’s truck and representing IBC in the sale and delivery
of its products to customers in a specific geographical area.
Petitioner was responsible for the relationship with the
customer. Petitioner characterizes that relationship as “city
salesman, working from a truck” and not mere “deliveryman”.
We first consider the degree of IBC’s control over
petitioner (right to control). That factor is an important one
in discerning petitioner’s relationship to IBC. See Weber v.
Commissioner, supra at 387. The degree of control necessary to
find employee status varies with the nature of the services
provided by the worker. Id. at 388. “To retain the requisite
control over the details of an individual’s work, the principal
need not stand over the individual; it is sufficient if he has
the right to do so. * * * see sec. 31.3401(c)-1(b), Employment
Tax Regs.” Ewens & Miller, Inc. v. Commissioner, supra at 270.
Respondent contends that under the terms of the union
agreement between IBC and Local 952, IBC controls petitioner, by
controlling his sales territory, hours of work, credit terms that
he can extend to customers, and general course of conduct. In
addition, respondent points out that IBC requires petitioner to
wear an IBC uniform and provides him with a delivery truck in
good working order, gasoline, and maintenance. In addition, IBC
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Last modified: May 25, 2011