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It does not purport to override or interpret the definition of
“employee” in section 3121(d) and related regulations. Hence,
Section 530(c)(2) does not render it rational for petitioner to
have ignored the statutory mandate regarding corporate officers
and to have taken a position that was not otherwise supported by
authority. Petitioner also does not claim in actuality to have
relied on Section 530(c)(2) in deciding not to treat Sadanaga as
an employee in 1997 or 1998. We conclude and have found as a
fact that petitioner did not have a reasonable basis for failing
to characterize Sadanaga as an employee. Consequently, relief
from employment tax liability is not available to petitioner
under Section 530.
Lastly, in connection with Section 530, petitioner raises a
due process argument. This issue has never been properly pled by
petitioner. Rather, petitioner mentioned due process in its
motion for leave to file an amended petition, did not allege a
due process violation in the amended petition itself, and argued
the matter only on brief. Generally, issues not properly raised
prior to briefing will not be considered when to do so would
prevent the opposing party from presenting evidence that might
have been offered if the issue had been timely raised. DiLeo v.
Commissioner, 96 T.C. 858, 891 (1991), affd. 959 F.2d 16 (2d Cir.
1992); Shelby U.S. Distribs., Inc. v. Commissioner, 71 T.C. 874,
885 (1979). Here, however, even if we were to treat the due
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