Aric Manley Allman - Page 12

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          McMickle “under the table”, which explains the lack of                      
          withholding for taxes and Social Security.  Petitioner testified            
          that Mr. McMickle owned the construction company and controlled             
          the details of when and how the work was to be performed at the             
          various project locations.  Mr. McMickle determined the hours to            
          be worked by the employees, including petitioner.  There is                 
          nothing in the record that indicates that petitioner was                    
          responsible for profits or losses with respect to the rough                 
          framing activity.  Moreover, the record does not indicate that              
          petitioner was responsible for his own work expenses or that he             
          was required to purchase his own tools for use on the job.                  
          Petitioner never signed a contract with Mr. McMickle or anybody             
          else with respect to the various rough framing projects that                
          indicated that he was an independent contractor.  Mr. McMickle              
          could terminate petitioner at any time.  We find petitioner’s               
          testimony credible.                                                         
               Again, we note that respondent failed to rebut petitioner’s            
          testimony because he did not call Mr. McMickle as a witness.                
          Based on the facts before us, and in light of the factors                   
          enumerated above, we find that petitioner was an employee during            
          2003.  Accordingly, petitioner is not subject to self-employment            
          tax.  Petitioner is sustained on this issue.                                
               Reviewed and adopted as the report of the Small Tax Case               

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