Veterinary Surgical Consultants, P.C. - Page 21




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               Petitioner also called Grey, the accountant who advised                
          petitioner and prepared petitioner’s tax returns.  Grey was                 
          permitted to testify in this case, despite petitioner’s failure             
          to list him as a witness in its trial memorandum, in the interest           
          of a complete record and because respondent had been given                  
          sufficient warning and time to prepare.                                     
               Grey explained that he had based his determination that                
          Sadanaga was not an employee on common law concepts pertaining to           
          the employment relationship, particularly the element of control.           
          As regards Section 530 and judicial precedent, Grey testified               
          that he was unaware of the Tex. Carbonate Co. v. Phinney, supra,            
          case until posttrial briefing, during the fall of 2001, in Joseph           
          M. Grey Pub. Accountant, P.C. v. Commissioner, 119 T.C. 121                 
          (2002).  Hence, given the testimony that neither petitioner’s               
          sole shareholder and officer nor the accountant was familiar with           
          the alleged judicial authority at the time petitioner decided to            
          treat Sadanaga as a nonemployee for 1997 and 1998, petitioner has           
          failed to establish that it relied on judicial precedent or, for            
          that matter, on any of the other sources specified in Section               
          530(a)(2)(A).  Accordingly, we conclude that subparagraph (A)               
          does not aid petitioner here.                                               
               The same result obtains with respect to subparagraphs (B)              
          and (C).  The parties have stipulated that respondent did not               
          audit petitioner for employment tax purposes prior to the                   






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