Frederick C. Kumpel - Page 10

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          Petitioner’s reliance on Smith’s and Mawson’s flexible schedules            
          is misplaced.  The hours were flexible because of the agreement             
          between petitioner and the secretaries and not by unilateral                
          action by the secretaries.  While Smith and Mawson were                     
          performing services for petitioner, they were under the direct              
          control of petitioner, who determined the manner in which they              
          would perform their jobs.  Petitioner controlled both Smith and             
          Mawson in the completion of their job functions in a manner                 
          consistent with employee status.                                            
               2.  Investment in Facilities                                           
               Respondent emphasizes that petitioner invested in the                  
          facilities of the law practice, claiming deductions over the                
          years in issue of over $49,000 for supplies and office expenses             
          used by Smith and Mawson.  Respondent also emphasizes that                  
          petitioner reimbursed Smith for supplies she purchased for the              
          office.                                                                     
               In this case, petitioner supplied the office space, a                  
          computer, and other equipment used by Smith and Mawson to perform           
          their functions.  Although petitioner testified that Smith                  
          sometimes worked from her home, her choice to work at home, using           
          her own computer, was her preference.  It appears that Smith’s              
          work at home was de minimis as well as voluntary.  Smith was not            
          required to make any investment.  See, e.g., Weber v.                       
          Commissioner, supra at 390.  These facts are indicative of an               
          employer-employee relationship.                                             






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