Veterinary Surgical Consultants, P.C. - Page 19




                                       - 19 -                                         
          Id. at 519-522.  In deciding that the individuals qualified as              
          employees under either rubric, the court did not repudiate the              
          statutory treatment of corporate executives.  Id. at 520, 522;              
          see also Joseph M. Grey Pub. Accountant, P.C. v. Commissioner,              
          supra at 129 n.5.                                                           
               Moreover, even if we were to assume arguendo that the cited            
          cases could offer a reasonable basis for treating an officer as a           
          nonemployee, petitioner has failed to establish reliance on the             
          claimed precedent as a factual matter.  To fall within the safe             
          harbors of Section 530(a)(2), the taxpayer must have relied on              
          the alleged authority during the periods in issue, at the time              
          the employment decisions were being made.  The statute does not             
          countenance ex post facto justification.  See 303 W. 42nd St.               
          Enters., Inc. v. IRS, 181 F.3d 272, 277, 279 (2d Cir. 1999)                 
          (reversing and remanding because it was “unclear from the record            
          whether * * * [the taxpayer] in fact relied on any specific                 
          industry practice in reaching its decision to treat its * * *               
          [workers] as non-employee tenants, let alone whether such                   
          reliance was reasonable”); Select Rehab, Inc. v. United States,             
          205 F. Supp. 2d 376, 380 (M.D. Pa. 2002) (“The taxpayer must show           
          that it relied upon those grounds [alleged as a reasonable                  
          basis], and that the reliance was reasonable.”); W. Va. Pers.               
          Servs., Inc. v. United States, 78 AFTR 2d 96-6600, at 96-6608,              
          96-2 USTC par. 50,554, at 85,919 (S.D. W. Va. 1996) (“The plain             






Page:  Previous  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  Next

Last modified: May 25, 2011