Specialty Transport & Delivery Services, Inc. - Page 12




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          100 (3d Cir. 2002).  Furthermore, an employer cannot by the                 
          expedient of characterizing moneys paid in remuneration for                 
          services as distributions of net income, rather than as wages,              
          avoid FICA and FUTA liabilities.  Id. at 145-146.  Thus, as in              
          Veterinary Surgical Consultants, P.C. v. Commissioner, supra at             
          145-146, and Joseph M. Grey Pub. Accountant, P.C. v.                        
          Commissioner, 119 T.C. 121, 128 (2002), we reject any suggestion            
          that petitioner’s passing through of its net income to Ludlow               
          precludes the finding of an employer-employee relationship                  
          between petitioner and Ludlow.  We likewise reject as not germane           
          to the question before us petitioner’s reliance on section 1372,            
          addressing fringe benefits under subtitle A, and the reference to           
          that statute in Durando v. United States, supra at 551.  See                
          Veterinary Surgical Consultants, P.C. v. Commissioner, supra at             
          147-148, 150.                                                               
                    2.  Contentions Regarding Common Law Employment                   
               Petitioner contends that “employee” as used throughout                 
          section 3121(d) must be construed in a manner consistent with its           
          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                     





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