- 36 -                                         
          Inc. v. Commissioner, 89 T.C. 225, 233 (1987), affd. 862 F.2d 751           
          (9th Cir. 1988).  Petitioner does not cite, and we have not                 
          found, any authority which requires the Court to ignore a                   
          contract that designates a person as the employer of certain                
          individuals where the totality of the facts and circumstances               
          surrounding such person, such individuals, and one or more third            
          persons who use the services of one or more of such individuals             
          is not inconsistent with such a contract.  In Transport Labor I,            
          petitioner failed to show that the totality of the facts and                
          circumstances surrounding TLC, each driver-employee, and each               
          trucking company client was inconsistent with the exclusive lease           
          agreement under which each such trucking company client used the            
          services of one or more of such driver-employees.                           
               As an illustration, the exclusive lease agreement provided             
          in pertinent part that TLC “shall in its absolute discretion,               
          hire * * * Lessor’s [TLC’s] employees”.  Transp. Labor                      
          Contract/Leasing, Inc. & Subs. v. Commissioner, 123 T.C. at 160.            
          The Court in Transport Labor I found that TLC retained the sole             
          and absolute authority to hire each driver-employee.  Id. at 164.           
          The record in the instant case established:  (1) Before TLC hired           
          a truck driver as a driver-employee, such truck driver had to               
          pass TLC’s screening and approval process, which was designed to            
          determine a truck driver’s fitness to serve as a driver-employee            
          of TLC; (2) TLC hired approximately 25 percent of its driver-               
Page:  Previous   26   27   28   29   30   31   32   33   34   35   36   37   38   39   40   41   42   43   44   45   NextLast modified: May 25, 2011