- 11 - did not establish a prima facie case that its treatment of Sadanaga was reasonable, the burden of proof remains on petitioner. II. Classification of Sadanaga for Employment Tax Purposes A. Status Under FICA and FUTA Provisions In contending that Sadanaga should not be classified as an employee under the FICA and FUTA provisions of the Internal Revenue Code, petitioner focuses on Sadanaga’s status as an S corporation shareholder and alleged lack of status as a common law employee. We briefly address these contentions seriatim. 1. Contentions Regarding S Corporation Shareholders Petitioner cites sections 1366, 1372, and 6037(c) and Durando v. United States, 70 F.3d 548 (9th Cir. 1995), presumably in support of an argument that S corporation shareholders should not be deemed employees. Sections 1366 and 6037(c) generally require that income items of S corporations be passed through to shareholders on a pro rata basis and reported by such shareholders in a manner consistent with treatment on the corporate return. These rules, however, pertain to calculation of income tax liability under subtitle A and have no bearing on computation of Federal employment taxes. Veterinary Surgical Consultants, P.C. v. Commissioner, 117 T.C. at 145. Furthermore, an employer cannot by the expedient of characterizing moneys paid in remuneration for services as distributions of net income,Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011