- 13 -
enjoyed a fair degree of permanency. Additionally, there was no
evidence that these individuals enjoyed the opportunity for
profit or loss beyond the work performed for, and hourly wage
paid by, petitioner. Finally, while Carmel testified that some
of the workers provided their own tools, including hammers and in
some cases Skil-saws, many of the materials needed for the work,
including the concrete, were provided by petitioner. These
factors all suggest to the Court that the individuals were in
fact employees of petitioner and not independent contractors.
In contrast, the only evidence before the Court to support a
finding that the workers were independent contractors is
petitioner’s intent to create such a relationship. The contract
Carmel and Damigos signed to form petitioner included a provision
for the preparation of independent contractor agreements. While
evidence of the parties’ understanding of the relationship is one
factor we consider, it is not enough to overcome the weight of
the other factors which clearly evidence an employer-employee
relationship. See, e.g., Kumpel v. Commissioner, T.C. Memo.
2003-265 (“Where, as here, common law factors compel a finding
that an employer-employee relationship exists, the parties’
intentions to the contrary will not be given effect.”).
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: May 25, 2011