Melinda D. Rivera - Page 9

                                        - 8 -                                         
                              (D) as a traveling or city salesman,                    
                         other than as an agent-driver or commission-                 
                         driver, engaged upon a full-time basis in the                
                         solicitation on the behalf of, and the                       
                         transmission to, his principal (except for                   
                         side-line sales activities on behalf of some                 
                         other person) of orders from wholesalers,                    
                         retailers, contractors, or operators of                      
                         hotels, restaurants, or other similar                        
                         establishments for merchandise for resale or                 
                         supplies for use in their business                           
               if the contract of service contemplates that substantially             
               all of such services are to be performed personally by such            
               individual; except that an individual shall not be included            
               in the term "employee" under the provisions of this                    
               paragraph if such individual has a substantial investment in           
               facilities used in connection with the performance of such             
               services (other than in facilities for transportation)                 
          * * *.                                                                      

               An individual is a statutory employee under section                    
          3121(d)(3) only if such individual is not a common law employee             
          under section 3121(d)(2).                                                   
               Whether an individual is a common law employee under section           
          3121(d)(2) is a question of fact.  Profl. & Executive Leasing,              
          Inc. v. Commissioner, 89 T.C. 225, 232 (1987), affd. 862 F.2d 751           
          (9th Cir. 1988); Simpson v. Commissioner, 64 T.C. 974, 984                  
          (1975).  Among the relevant factors in determining the substance            
          of an employment relationship are the following:  (1) The degree            
          of control exercised by the principal over the details of the               
          work, (2) the taxpayer's investment in facilities, (3) the                  
          taxpayer's opportunity for profit or loss, (4) permanency of the            
          relationship between the parties, (5) the principal's right of              

Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next

Last modified: May 25, 2011