Images in Motion of El Paso, Inc. - Page 24

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               In addition, respondent’s litigating position in his answer            
          generally denies petitioner’s allegations.  Because the answer              
          does not contain any significant analysis, we rely upon the facts           
          as developed by the examining agent as the reasoning behind                 
          respondent’s contentions.                                                   
                    b.  Was Respondent’s Litigating Position                          
                         Reasonable?                                                  
               Whether petitioner properly classified its instructors as              
          employees is a question of fact.  See Weber v. Commissioner, 103            
          T.C. at 386; Packard v. Commissioner, 63 T.C. 621, 629 (1975).              
          We generally accord significant weight to the amount of control a           
          taxpayer exercises over its instructors since control is the                
          “crucial test” in determining the nature of a working                       
          relationship.  Gen. Inv. Corp. v. United States, 823 F.2d 337,              
          341 (9th Cir. 1987).  In determining the nature of a working                
          relationship, the threshold level of control for the creation of            
          an employer-employee relationship varies depending on the nature            
          of the services the worker provided.  Weber v. Commissioner,                
          supra at 387-388.                                                           
               Respondent conceded the ultimate issue:  whether petitioner            
          properly classified its instructors as independent contractors.             
          This concession is not necessarily determinative that                       
          respondent’s prior position on that issue was unreasonable.                 
          Portillo v. Commissioner, 988 F.2d 27, 28 (5th Cir. 1993), revg.            
          T.C. Memo. 1992-99.  However, it is a factor that we may                    





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