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use in section 3121(d)(2), such that the usual common law rules
for determining existence of an employer-employee relationship
are to be taken into account. In support of this position,
petitioner quotes the following passage from Tex. Carbonate Co.
v. Phinney, 307 F.2d 289, 291-292 (5th Cir. 1962):
The statutory definition of “employees” as
including officers of a corporation will not be so
construed as to mean that an officer is an employee
per se. Only such officers as work for it in fact are
to be so included and, in determining whether an
officer is an employee within the meaning of the
statutes the usual employer-employee tests are to be
applied. * * *
Petitioner further emphasizes that common law focuses on whether
the alleged employer held the right to control the details of the
work performed by the individual and argues that petitioner had
neither the authority nor the ability to exert control over
Stark. There exist, however, at least two fatal defects in
petitioner’s arguments in this regard.
First, from the standpoint of statutory construction, the
premise underlying petitioner’s position finds no support either
in the structure of the text or in the Tex. Carbonate Co. v.
Phinney, supra, decision. Section 3121(d) is written in the
disjunctive, with each of the four paragraphs expressly separated
from the next by “or”. Accordingly, each paragraph affords a
separate and independent basis for deeming one engaged to perform
services an employee. Individuals described in paragraphs (1),
(3), and (4) of section 3121(d) are therefore frequently referred
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