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regular business of the hiring party; whether the
hiring party is in business; the provision of employee
benefits; and the tax treatment of the hired party.
Nationwide Mut. Ins. Co. v. Darden, supra at 323-324.
A primary consideration in determining which of two persons
is the employer of an individual is “which of the two [persons]
has the right to control the activities of the individual”.
Leavell v. Commissioner, 104 T.C. 140, 150 (1995); see Schweiger
v. Farm Bureau Ins. Co., 207 F.3d 480, 484 (8th Cir. 2000); Beech
Trucking Co. v. Commissioner, supra at 441; Weber v. Commis-
sioner, 103 T.C. 378, 387 (1994), affd. per curiam 60 F.3d 1104
(4th Cir. 1995); Profl. & Executive Leasing Inc. v. Commissioner,
89 T.C. 225, 232-233 (1987), affd. 862 F.2d 751 (9th Cir. 1988);
sec. 31.3121(d)-1(c)(2), Employment Tax Regs.
Before considering the factors under the common-law employ-
ment test, we shall address the testimony of Gary Ankerfelt (Mr.
Ankerfelt) on which petitioner relies to support its position
that TLC was not the employer of each driver-employee. From
TLC’s inception until 2000, Mr. Ankerfelt was TLC’s president and
chief executive officer. According to petitioner, Mr.
Ankerfelt’s testimony establishes that the provisions of each
exclusive lease agreement which gave TLC the sole and absolute
authority to hire, fire, and control the work and conduct of each
driver-employee do not mean what they say. In this regard, Mr.
Ankerfelt testified: (1) TLC exercised only an advisory role in
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