Samuel A. Cole - Page 7

                                        - 7 -                                         
          affd. 862 F.2d 751 (9th Cir. 1988); Simpson v. Commissioner, 64             
          T.C. 974, 984 (1975).  Section 3121(d) provides:                            
                    SEC. 3121(d).  Employee.–-For purposes of this                    
               chapter, the term "employee" means--                                   
                         (1) any officer of a corporation; or                         
                         (2) any individual who, under the usual                      
                    common law rules applicable in determining the                    
                    employer-employee relationship, has the status of                 
                    an employee; or                                                   
                         (3) any individual (other than an individual                 
                    who is an employee under paragraph (1) or (2)) who                
                    performs services for remuneration for any                        
                    person--                                                          
                     *      *      *      *      *      *      *                      
                              (D) as a traveling or city salesman,                    
                         other than as an agent-driver or commission-                 
                         driver, engaged upon a full-time basis in the                
                         solicitation on behalf of, and the                           
                         transmission to, his principal (except for                   
                         side-line sales activities on behalf of some                 
                         other person) of orders from wholesalers,                    
                         retailers, contractors, or operators of                      
                         hotels, restaurants, or other similar                        
                         establishments for merchandise for resale or                 
                         supplies for use in their business                           
                         operations;                                                  
                    if the contract of service contemplates that                      
                    substantially all of such services are to be                      
                    performed personally by such individual; except                   
                    that an individual shall not be included in the                   
                    term "employee" under the provisions of this                      
                    paragraph if such individual has a substantial                    
                    investment in facilities used in connection with                  
                    the performance of such services (other than in                   
                    facilities for transportation) * * *                              
               Petitioner argues that he is a statutory employee under the            
          definition in section 3121.  He summarized in his testimony that            






Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next

Last modified: May 25, 2011