Nu-look Design, Inc. - Page 14




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          Hence, critical components of the analysis in Tex. Carbonate Co.            
          v. Phinney, supra, are consistent with the current regulatory               
          approach to officers and contrary to petitioner’s position.                 
               Second, from a factual standpoint, even if the common law              
          control factor were pertinent to our evaluation, petitioner has             
          failed to establish a lack of control over Stark in the                     
          performance of his services.  As in Joseph M. Grey Pub.                     
          Accountant, P.C. v. Commissioner, supra at 128-129, to accept               
          petitioner’s contentions in this regard would be the equivalent             
          of disregarding the corporate form in which Stark chose to                  
          conduct his business.  Caselaw does not permit a taxpayer to use            
          his or her dual role as a shareholder of and service provider to            
          a corporation as grounds for ignoring the legal ramifications of            
          the business construct so selected.  Moline Props., Inc. v.                 
          Commissioner, 319 U.S. 436, 438-439 (1943); Joseph M. Grey Pub.             
          Accountant, P.C. v. Commissioner, supra at 129.                             
                    3.  Application of Section 3121(d)(1)                             
               On the basis of the foregoing analysis, application of                 
          section 3121(d)(1) is not precluded or limited here by                      
          considerations pertaining to Stark’s status as an S corporation             
          shareholder or under the common law.  Section 3121(d)(1) and                
          sections 31.3121(d)-1(b) and 31.3306(i)-1(e), Employment Tax                
          Regs., specify that corporate officers are to be classified as              
          employees if they perform more than minor services and receive or           






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