James E. Anderson and Cheryl J. Latos - Page 31

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          operating expenses.  We do not believe that Congress, in enacting           
          section 3121(b)(20) to help fishing boat owners avoid financial             
          hardship and employment tax record-keeping requirements, intended           
          to limit the beneficial effects of section 3121(b)(20) by                   
          conferring self-employment status only on fishing boat crew                 
          members who receive a share of proceeds with no subtraction of              
          operating expenses.  To hold otherwise would classify as                    
          employees a majority of crew members, who, under the lay system,            
          usually receive a share of proceeds after subtraction of                    
          operating expenses.                                                         
               Because we are a court with national jurisdiction over                 
          litigation involving the interpretation of the Federal tax                  
          statutes, see Lardas v. Commissioner, 99 T.C. 490 (1992),                   
          adopting petitioners’ interpretation of section 3121(b)(20) would           
          throw the small boat fishing industry into turmoil and create               
          financial hardship for the owners.                                          
               Assuming as we do that most, if not all, small fishing boat            
          owners have not filed Forms 940 and 941 to report and pay FUTA              
          and FICA taxes for fishing boat workers who received proceeds               
          from sales of catches after subtraction of operating expenses,              
          the periods of limitation for assessments of those taxes would              
          not have expired.  Secs. 6501(a), 6503(a)(1), 6213.  Our adoption           
          of petitioners’ interpretation of section 3121(b)(20) could be              
          applied retroactively to assess employment taxes for previous tax           






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