Superior Proside, Inc. - Page 15




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               Furthermore, although section 3121(d)(1) may be inapplicable           
          to the extent that an officer performs services in some other               
          capacity, i.e., as an independent contractor, petitioner has                
          neither contended nor offered evidence that Murdock worked for or           
          was engaged by petitioner in a capacity other than president.               
          See Joseph M. Grey Pub. Accountant, P.C. v. Commissioner, 119               
          T.C. at 129-130; Rev. Rul. 82-83, 1982-1 C.B. 151, 152.  Hence,             
          we conclude that Murdock was an employee of petitioner for                  
          employment tax purposes, in accordance with section 3121(d)(1).             
               B.  Availability of Section 530 Relief                                 
               Section 530 affords relief from employment tax liability,              
          notwithstanding an adverse classification, where the following              
          three requirements are satisfied:  (1) The taxpayer has not                 
          treated the individual, or any individual holding a substantially           
          similar position, as an employee for any period; (2) the taxpayer           
          has consistently treated the individual as not being an employee            
          on all tax returns for periods after December 31, 1978; and                 
          (3) the taxpayer has a reasonable basis for not treating the                
          individual as an employee.  Sec. 530(a)(1), (3).  With respect to           
          the case at bar, respondent has conceded that petitioner meets              
          the first of the above requirements and does not argue that                 
          petitioner fails to meet the second.  Rather, the parties dispute           
          whether petitioner had a reasonable basis for not treating                  
          Murdock as an employee.                                                     






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