Dennis J. and Carol R. Kraus - Page 11

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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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