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the Commissioner, by applying the common-law definition of who is
an employer of whom. Looking to employment tax cases for
analogies, the Commissioner asserts that Pavich is an employee of
the person for whom he performs the services, and who has the
right to control and direct him--not only as to the result he is
to reach, but also as to the details and means by which he
reaches it. See sec. 31.3121(d)-1(c)(2), Employment Tax Regs.
We are not so sure that the Commissioner is looking in the
right place to find the meaning of “employee”. Section 912(2)
actually uses the term “civilian officers or employees of the
Government of the United States.” These terms aren’t defined by
tax law, but their use is quite common in federal personnel law,
most of which is found in title 5 of the U.S. Code. It is title
5 that has general definitions of these terms (which are, to be
sure, limited to “this title” (i.e., title 5)). Section 2104 of
title 5 defines an “officer” as a justice or judge of the United
States and an individual who is--
(1) required by law to be appointed in the civil
service by one of the following acting in an
official capacity--
(A) the President;
(B) a court of the United States;
(C) the head of an Executive agency; or
(D) the Secretary of a military department.
Section 2105 of that title defines as an “employee” anyone
who is an “officer,” plus an individual who is--
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Last modified: May 25, 2011