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Concerning the existence of a reasonable basis for purposes
of Section 530(a)(1), Section 530(a)(2) sets forth three
statutory safe havens. Reliance upon any of the circumstances
enumerated in subparagraph (A), (B), or (C) of Section 530(a)(2)
is deemed sufficient to establish the requisite reasonable basis.
Subparagraph (A) lists judicial precedent, published
rulings, technical advice with respect to the taxpayer, or a
letter ruling to the taxpayer. The second amended petition
alleges:
For reasonable basis for Petitioner’s reliance on
the non-employee status of Thomas L. Murdock in
reference to his services performed on behalf of
Petitioner during 1995, 1996, and 1997, Petitioner
asserts judicial precedent in Texas Carbonate Company
v. R.L. Phinney, 307 F.2d 289 (5th Cir.), cert denied,
371 U.S. (1962); wherein that Court’s opinion stated
that an officer of a corporation is not an employee per
se, and that an employer and employee (master and
servant) relationship must exist between a corporation
and an officer of the corporation, for which an officer
performs services.
On brief, petitioner reiterates reliance on Tex. Carbonate Co. v.
Phinney, 307 F.2d 289 (5th Cir. 1962), and cites as well to
Automated Typesetting, Inc. v. United States, 527 F. Supp. 515
(E.D. Wis. 1981), in support of the premise that petitioner
reasonably looked to common law control concepts in classifying
Murdock.
For the reasons previously discussed, Tex. Carbonate Co. v.
Phinney, supra, does not afford a reasonable basis for disregard
of the explicit rules of section 3121(d)(1) and sections
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