Orion Contracting Trust, Kevin Peter Carmel, General Manager - Page 10

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          preponderance of the evidence, that those determinations are                
          erroneous.  See Rule 142(a); Welch v. Helvering, 290 U.S. 111,              
          115 (1933).  This rule also applies to the Commissioner’s                   
          determination that a taxpayer’s workers are employees for the               
          purpose of employment taxes.  Allen v. Commissioner, T.C. Memo.             
          2005-118.  While petitioner bears the burden of proof, we decide            
          this case by the preponderance of the evidence.  See Blodgett v.            
          Commissioner, 394 F.3d 1030, 1035 (8th Cir. 2005), affg. T.C.               
          Memo. 2003-212.                                                             
               Whether an employer-employee relationship exists in a                  
          particular situation is a factual question.  Weber v.                       
          Commissioner, 103 T.C. 378, 386 (1994), affd. per curiam 60 F.3d            
          1104 (4th Cir. 1995).  For the purposes of employment taxes, the            
          term “employee” includes “any individual who, under the usual               
          common law rules applicable in determining the employer-employee            
          relationship, has the status of an employee”.  Secs. 3121(d)(2),            
          3306(i); Ewens & Miller, Inc. v. Commissioner, 117 T.C. 263, 269            
          (2001).  Section 31.3121(d)-1(c)(2), Employment Tax Regs.,                  
          defines the common law employer-employee relationship as follows:           
                    Generally such relationship 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                





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