Images in Motion of El Paso, Inc. - Page 19

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          The workers described in the notice of determination were                   
          properly classified as employees for the tax periods at issue;              
          (2) petitioner was not entitled to relief under section 530 of              
          the Revenue Act of 1978 with respect to such individuals; and (3)           
          petitioner owed $33,170.68 of additional Federal employment                 
          taxes.                                                                      
               As stated above, respondent contends that his position is              
          substantially justified.  Respondent’s position is substantially            
          justified if it has a reasonable basis in both fact and law.                
          Maggie Mgmt. Co. v. Commissioner, supra at 443; DeVenney v.                 
          Commissioner, 85 T.C. 927, 930 (1985); sec. 301.7430-5(c),                  
          Proced. & Admin. Regs.  We apply the reasonable person standard             
          to determine reasonableness.  See Pierce v. Underwood, 487 U.S.             
          552, 565 (1988) (stating that the Commissioner’s position is                
          substantially justified if it is supported “to a degree that                
          could satisfy a reasonable person”).  The reasonableness of the             
          Commissioner’s position is based on the available facts used to             
          form his position and legal precedents related to the case.                 
          Maggie Mgmt. Co. v. Commissioner, supra at 443.  We shall review            
          the reasonableness of respondent’s factual and legal positions              
          together since employment status is generally a factual question.           
          See Weber v. Commissioner, 103 T.C. 378, 386 (1994), affd. per              
          curiam 60 F.3d 1104 (4th Cir. 1995).                                        
               A significant factor we use in deciding whether the                    
          Commissioner’s position is substantially justified is whether the           




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