Melinda D. Rivera - Page 12

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          petitioner's position with Big Train indicates that petitioner's            
          duties, performance goals, and sales territory were set by the              
          company's national sales manager.  Additionally, petitioner was             
          required to report the status of her accounts and work, as well             
          as her schedule, to the national sales manager.                             
               B.   Investment in Facilities                                          
               The record does not contain any information as to                      
          petitioner's working conditions while she was employed by                   
          Peerless.  Petitioner testified that while employed by Big Train,           
          she worked mainly from her home and faxed or mailed her work and            
          expenses to them.  Petitioner has not provided any evidence as to           
          any expenditures she may have made to establish or conform a                
          workspace in her home in order to perform the duties of her job.            
          In any event, maintenance of a home office alone would not be a             
          sufficient basis for a finding that petitioner was an independent           
          contractor rather than an employee.  Lewis v. Commissioner, T.C.            
          Memo. 1993-635.                                                             
               C.   Opportunity for Profit or Loss                                    
               Petitioner received a salary from Big Train as well as                 
          commissions on her sales.  Big Train also paid some of her travel           
               Petitioner received a biweekly base salary from Peerless and           
          commissions on her sales.  Peerless also reimbursed petitioner              
          for her mileage.                                                            

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Last modified: May 25, 2011