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Petitioner further emphasizes that common law focuses on whether
the alleged employer held the right to control the details of the
work performed by the individual and argues that petitioner did
not exercise control over Murdock during any part of 1995, 1996,
or 1997. There exist, however, at least two fatal defects in
petitioner’s arguments in this regard.
First, from the standpoint of statutory construction, the
premise underlying petitioner’s position finds no support either
in the structure of the text or in the Tex. Carbonate Co. v.
Phinney, supra, decision. Section 3121(d) is written in the
disjunctive, with each of the four paragraphs expressly separated
from the next by “or”. Accordingly, each paragraph affords a
separate and independent basis for deeming one engaged to perform
services an employee. Individuals described in paragraphs (1),
(3), and (4) of section 3121(d) are therefore frequently referred
to as “statutory” employees, subject to FICA and FUTA regardless
of their status under common law. See Joseph M. Grey Pub.
Accountant, P.C. v. Commissioner, supra at 126.
Moreover, Tex. Carbonate Co. v. Phinney, supra, is not
authority to the contrary. Significant regulatory and statutory
developments have occurred since the years in issue in that case.
Given that sections 31.3121(d)-1(b) and 31.3306(i)-1(e),
Employment Tax Regs., were promulgated after those years and that
the FUTA definition of “employee” then in effect appears to have
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