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dealings with the NDREC and his customers as an employee of WFIC
tend to show that for purposes of this test, WFIC had the right
to direct petitioner as an employee. Petitioner’s use of WFIC’s
bank accounts to facilitate the real estate transactions also
demonstrates that WFIC was petitioner’s employer for real estate
matters. The use of WFIC’s bank accounts and the presence of
WFIC’s name on documents such as settlement statements put WFIC’s
customers on notice that petitioner was operating as an employee
of WFIC. This conclusion is supported by the fact that
petitioner’s customers wrote checks to WFIC or to Epic Real
Estate as a division of WFIC. All these facts surrounding
petitioner’s operation of WFIC lead us to conclude that
petitioner has met his burden of proving that WFIC was the true
earner of the real estate commissions in 1990 and 1991, and
respondent has not met his burden of showing that petitioner
earned the 1990 and 1991 real estate commissions.
In February 1992, petitioner changed his business name with
the NDREC from WFIC d/b/a Epic Real Estate to “James O. Jondahl
d/b/a Epic Real Estate”. He also changed the name on WFIC’s
trust account to Epic Real Estate. Petitioner completed one real
estate transaction in 1992. The documents related to that
transaction reference Epic Real Estate but do not reference WFIC.
The commission, $1,566, was paid out of the WFIC/Epic Real Estate
trust account to petitioner. Petitioner not only took formal
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