Aric Manley Allman - Page 11

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          means by which that result is accomplished.”  Sec. 31.3121(d)-              
          1(c)(2), Employment Tax Regs.; see also Gamal-Eldin v.                      
          Commissioner, T.C. Memo. 1988-150, affd. without published                  
          opinion 876 F.2d 896 (9th Cir. 1989).                                       
               Petitioner takes issue with respondent’s determination that            
          he is required to pay self-employment tax for the 2003 taxable              
          year.  The Commissioner’s determination is based solely on Mr.              
          McMickle’s reporting of income paid to petitioner on a Form 1099-           
          MISC as nonemployee compensation.  According to petitioner, he              
          was an employee of Mr. McMickle and not an independent                      
          contractor.  As support for his position, petitioner testified              
          with respect to his work for Mr. McMickle.                                  
               According to petitioner, Mr. McMickle instructed him what to           
          do when he reported to work and while on the job.  Petitioner               
          explained that Mr. McMickle worked through a foreman who, in                
          turn, supervised four individuals, including petitioner.                    
          Petitioner believed that Mr. McMickle would provide him with “a             
          1099, or W-2, at the end of the year, whatever they send you”.              
               We construe respondent to believe that petitioner is liable            
          for self-employment taxes because the amounts he earned from Mr.            
          McMickle were income derived from petitioner’s trade or business            
          as an independent construction worker.  We disagree.                        
               Petitioner understood himself to be a full-time, hourly                
          employee of Mr. McMickle during 2003.  Petitioner worked for Mr.            

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