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1401. Victory Motors also considered the $13,500 in commissions
as self-employment income and issued to petitioner Form 1099-
MISC, Miscellaneous Income. No Federal income taxes or self-
employment taxes were withheld by Victory Motors.
At trial, respondent conceded that petitioner was not self-
employed but rather was an employee of Victory Motors, a position
contrary to the determination in the notice of deficiency and
also contrary to how petitioner and Victory Motors viewed their
relationship. Respondent’s position at trial was that petitioner
was an employee of Victory Motors, and, as such, the payments
constituted wage or salary income. Respondent did not move to
assert an increased deficiency to account for FICA taxes on the
payments petitioner received and conceded that the limitations
period barred respondent from making an assessment for such
taxes.
Petitioner contends that the payments of $13,500 he received
did not constitute income and were merely advances he received
from Victory Motors, subject to adjustment at some point when he
and the management at Victory Motors would meet and finally
settle or close the arrangement. Thus, petitioner contends the
$13,500 he received in 2001 was merely an advance and was not
income. However, no evidence was offered to establish that
petitioner and Victory Motors were contemplating any meeting to
settle petitioner’s arrangement. At the time of trial, more than
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