Lisa Beth Levine - Page 15

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          B.   Employee or Independent Contractor                                     
               Petitioner’s entitlement to the deduction at issue hinges              
          upon the proper classification of her work relationship with the            
          State Department.                                                           
               Petitioner asserts she performed services under the personal           
          service contracts as an independent contractor.2  Respondent                
          asserts that petitioner was a common law employee of the State              
          Department.                                                                 
               The term “employee” is not defined in the Internal Revenue             
          Code.  Consequently, whether an individual is an employee for               
          purposes of section 401(c) is a factual question the answer to              
          which depends upon the application of common law concepts.  See             
          Clackamas Gastroenterology Associates, P.C. v. Wells, 538 U.S.              
          440, 444-445 (2003); Nationwide Mut. Ins. Co. v. Darden, 503 U.S.           
          318, 322-323 (1992); Weber v. Commissioner, 60 F.3d 1104,                   
          1110-1111 (4th Cir. 1995), affg. 103 T.C. 378 (1994); Air                   
          Terminal Cab, Inc. v. United States, 478 F.2d 575, 578 (8th Cir.            
          1973); Profl. & Executive Leasing, Inc. v. Commissioner, 89 T.C.            
          225, 232 (1987), affd. 862 F.2d 751 (9th Cir. 1988); Burnetta v.            
          Commissioner, 68 T.C. 387, 397 (1977); Simpson v. Commissioner,             


               2Petitioner asserts that she cannot be an employee of the              
          State Department because the personal service contracts specified           
          that she was not an appointed Federal employee as defined in 5              
          U.S.C. sec. 2105.  We need not address this argument, because we            
          find that petitioner was an independent contractor and not a                
          common law employee of the State Department.                                





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