- 16 - The taxpayer has the burden of proving the existence of an employment relationship. Rule 142(a); Ellison v. Commissioner, 55 T.C. 142, 152 (1970). Similar to section 422(a)(2), section 1.421-7(h)(1) and (2), Income Tax Regs., provides that for purposes of determining whether section 421 applies to a statutory option,16 the taxpayer must be an employee of the corporation granting the option at all times from the date the option is granted until 3 months before the date of exercise. To determine whether the taxpayer is an employee, the rules contained in section 3401(c) and the regulations thereunder are applicable. Sec. 1.421-7(h)(1), Income Tax Regs. Section 3401(c) and the regulations thereunder define “employee” for purposes of withholding from wages. In relevant part, section 31.3401(c)-1(b), Employment Tax Regs., provides: (b) Generally the relationship of employer and employee exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is 16 The term “statutory option” means “a qualified stock option, as defined by section 422(b)”. Sec. 1.421-7(b)(1), Income Tax Regs. Sec. 422(b) defines an “incentive stock option”.Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: May 25, 2011