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In enacting section 3121(b)(20), Congress stated that the
relationship of the small fishing boat owners with “pickup” crews
who share in the proceeds from the catch is more similar to a
joint venture than to an employment arrangement. Generally, a
partnership is synonymous with a joint venture. See secs.
761(a), 7701(a)(2). A partnership generally requires a community
of interest in profits and losses. See Commissioner v. Tower,
327 U.S. 280, 287-288 (1946). Historically, crew members who
work on the lay system have shared in the “profits” of the
voyage. The partnership/joint venture analogy suggests Congress
intended the term “share of the proceeds of the catch” to include
proceeds after subtraction of operating expenses.16
Even though petitioners have a seemingly plausible argument
that the “depends solely” provision of section 31.3121(b)(20)-
1(a)(2), Employment Tax Regs., is not satisfied if the share is
reduced by operating expenses, we interpret the “depends solely”
provision to mean that section 3121(b)(20) excludes from
“employment” services performed for any additional payment,
16An unsuccessful fishing trip is known in the fishing trade
as a “broker”. See The Dirigo First, 60 F. Supp. 675, 675-676
(D. Mass. 1945) (“If no fish is caught or for some other reason
there are no proceeds from a fish auction, the voyage is called
‘a broker’. * * * the members of the crew go unpaid, unless the
owner or master chooses to make a gratuitous distribution”);
O’Hara Vessels, Inc. v. Hassett, 60 F. Supp. 672 (D. Mass. 1942).
The broker situation suggests the lay system is similar to a
joint venture because the fishing boat workers risk the loss of
labor, time, and possibly other personal expenses.
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