- 21 -
to characterize Stark as an employee. Consequently, relief from
employment tax liability is not available to petitioner under
Section 530.
Lastly, in connection with Section 530, petitioner raises a
due process argument. This issue has never been properly pled by
petitioner. Rather, petitioner mentioned due process in its
motion for leave to file an amended petition, did not allege a
due process violation in the amended petition itself, and argued
the matter only on brief. Generally, issues not properly raised
prior to briefing will not be considered when to do so would
prevent the opposing party from presenting evidence that might
have been offered if the issue had been timely raised. DiLeo v.
Commissioner, 96 T.C. 858, 891 (1991), affd. 959 F.2d 16 (2d Cir.
1992); Shelby U.S. Distribs., Inc. v. Commissioner, 71 T.C. 874,
885 (1979). Here, however, even if we were to treat the due
process issue as appropriately before us, petitioner’s position
is without merit.
Section 530(e)(1) provides that the Internal Revenue Service
“shall, before or at the commencement of any audit inquiry
relating to the employment status of one or more individuals who
perform services for the taxpayer, provide the taxpayer with a
written notice of the provisions of this section.” Small
Business Job Protection Act of 1996 sec. 1122(a), 110 Stat. 1766.
On brief, petitioner alleges that it learned of the existence of
Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 NextLast modified: May 25, 2011