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deductions exceeds 2 percent of the individual’s AGI. Sec. 67.
In this case, petitioner contends that her itemized deductions
for business expenses are not subject to the limitations imposed
by section 67 because, during the year in issue, with respect to
the amounts in issue, she was not an “employee” within the
meaning of section 62.
For purposes of employment taxes, an “employee” includes
“any individual who, under the usual common law rules applicable
in determining the employer-employee relationship, has the status
of an employee”. Sec. 3121(d)(2). Common law employees are
described as follows:
Generally such relationship exists when the person for
whom services are performed has the right to control
and direct the individual who performs the services,
not only as to the result to be accomplished by the
work but also as to the details and means by which that
result is accomplished * * *.
Sec. 31.3121(d)-1(c)(2), Employment Tax Regs. Although the
determination of employee status is to be made by common law
concepts, a realistic interpretation of the term “employee”
should be adopted, and doubtful questions should be resolved in
favor of employment. Ewens & Miller, Inc. v. Commissioner, 117
T.C. 263, 269 (2001) (citing Breaux & Daigle, Inc. v. United
States, 900 F.2d 49, 52 (5th Cir. 1990)).
Also for employment tax purposes, an “employee” is:
Any individual * * * who performs services for
remuneration * * * as a traveling or city salesman * *
* engaged upon a full-time basis in the solicitation on
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