Superior Proside, Inc. - Page 13




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          contemplated a corporate officer who could be an independent                
          contractor under common law, see, e.g., sec. 1607(i), I.R.C.                
          1939, the Court of Appeals’ statements concerning common law                
          rules “may no longer be relevant.”  Joseph M. Grey Pub.                     
          Accountant, P.C. v. Commissioner, supra at 128 n.4.  The opinion            
          in Tex. Carbonate Co. v. Phinney, supra at 291, recognized that,            
          regardless of the test purportedly being applied, “such officers            
          as work for * * * [a corporation] in fact” are included as                  
          employees.  The court also addressed the impact of an alleged               
          absence of control in that case, as follows:                                
               Even though an absence of control is shown, and this as                
               we have noted has not been done, the force of the                      
               factor is diminished to near de minimis by the fact                    
               that * * * [the service provider] himself was a member                 
               of the Board of Directors, a Vice President, and the                   
               executive of the Company in charge of its sales and the                
               development of its markets. * * * [Id. at 292.]                        
          Hence, critical components of the analysis in Tex. Carbonate Co.            
          v. Phinney, supra, are consistent with the current regulatory               
          approach to officers and contrary to petitioner’s position.                 
               Second, from a factual standpoint, even if the common law              
          control factor were pertinent to our evaluation, petitioner has             
          failed to establish a lack of control over Murdock in the                   
          performance of his services.  As in Joseph M. Grey Pub.                     
          Accountant, P.C. v. Commissioner, supra at 128-129, to accept               
          petitioner’s contentions in this regard would be the equivalent             
          of disregarding the corporate form in which Murdock chose to                






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