Regina Felton, PC - Page 9

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          Regs., supra.  Petitioner contends that it did not satisfy the              
          ownership test because all of its stock was held by a                       
          nonemployee, Ms. Felton.  That said, petitioner has done nothing            
          to convince us that Ms. Felton is anything other than an                    
          employee.                                                                   
               Section 448(d)(2) does not adequately define the term                  
          “employee”,7 but as a general rule, when Congress has used the              
          term without defining it, we have concluded that Congress                   
          intended to describe the conventional relationship as understood            
          by common law.  See, e.g., Nationwide Mut. Ins. Co. v. Darden,              
          503 U.S. 318, 322-323 (1992).  Likewise, both the Court and the             
          Commissioner have adopted common-law rules to distinguish                   
          employees from independent contractors.  See Weber v.                       
          Commissioner, 103 T.C. 378, 387 (1994), affd. 60 F.3d 1104 (4th             
          Cir. 1995); Rev. Rul. 87-41, 1987-1 C.B. 296; see also Nationwide           
          Mut. Ins. Co. v. Darden, supra at 324.  The primary feature in              
          this analysis is control over the manner and means by which an              
          employee performs his or her services.  See Rev. Rul. 87-41,                
          supra; see also Clackamas Gastroenterology Associates, P.C. v.              
          Wells, 538 U.S. 440, 448 (2003) (describing the element of                  
          control as the “principal guidepost”); Ron Lykins, Inc. v.                  
          Commissioner, T.C. Memo. 2006-35.                                           

               7  Sec. 1.448-1T(e)(5)(ii), Temporary Income Tax Regs.,                
          supra, does contain a definition of employee, but it does not               
          appear to be helpful in these circumstances.                                





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