- 9 - behalf of, and the transmission to, his principal * * * of orders from wholesalers, retailers, contractors, or operators of hotels, restaurants, or other similar establishments for merchandise for resale or supplies for use in their business operations * * *. Sec. 3121(d)(3)(D). An individual can be a “statutory employee” under section 3121(d)(3) only if that individual is not a common law employee under section 3121(d)(2). Ewens & Miller, Inc. v. Commissioner, supra. Generally, as statutory employees under section 3121(d)(3)(D), “City or traveling salesmen who sell to retailers or to the others specified, operate off the premises of their principals, and are generally compensated on a commission basis”. Sec. 31.3121(d)-1(d)(3)(iv)(a), Employment Tax Regs. A common law employee generally reports business expenses on Schedule A, subject to limitations under section 67, but a statutory employee under section 3121(d)(3)(D) is not an employee for purposes of section 62 and may deduct business expenses on Schedule C. See sec. 3121(d); see also Prouty v. Commissioner, T.C. Memo. 2002-175 (illustrating that a statutory employee may reflect business income and expenses in full on Schedule C); Lickiss v. Commissioner, T.C. Memo. 1994-103 (holding that the taxpayer was a common law employee and that any related business expenses were to be reported on Schedule A, subject to the limitations under section 67); Rev. Rul. 90-93, 1990-2 C.B. 33 (holding that a statutory employee under section 3121(d)(3) for employment tax purposes is not a common law employee for purposesPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: May 25, 2011