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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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