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of control necessary to find employee status is generally lower
when applied to professional services than when applied to
nonprofessional services. Weber v. Commissioner, 60 F.3d at
1110-1111.
The absence of the need to control should not be confused
with the absence of the right to control. Air Terminal Cab, Inc.
v. United States, supra at 580. The right to control is
determinative, and it is not necessary that any control actually
be exercised. Thus, courts must examine not only the control
exercised by the principal, but also the degree to which the
principal may intervene to impose control. Radio City Music Hall
Corp. v. United States, 135 F.2d 715, 717 (2d Cir. 1943);
deTorres v. Commissioner, T.C. Memo. 1993-161.
Section 31.3121(d)-1(c)(2), Employment Tax Regs., describes
the right to control an employee as follows:
the person for whom services are performed has the
right to control and direct the individual who performs
the services, not only as to the result to be
accomplished by the work but also as to the details and
means by which that result is accomplished. That is,
an employee is subject to the will and control of the
employer not only as to what shall be done but how it
shall be done. * * *
While the degree of control exercised over the details of the
work is important, the crucial test lies in the right to control
(1) the manner in which the service is to be performed; (2) the
means to be used in its accomplishment; and (3) the result to be
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