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Jenkins v. Commissioner, T.C. Memo. 1988-292, affd. without
published opinion 880 F.2d 414 (6th Cir. 1989); Furmanski v.
Commissioner, T.C. Memo. 1974-47. Because we shifted the burden
under section 7491, respondent has the burden to prove that Mr.
Speltz was not a bona fide employee of the daycare during the
years at issue.
In determining whether a hired person is an employee under
the general common law of agency, we consider several non-
exclusive factors.9 See Nationwide Mut. Ins. Co. v. Darden,
supra; NLRB v. United Ins. Co., 390 U.S. 254, 258 (1968); Profl.
& Executive Leasing, Inc. v. Commissioner, 89 T.C. 225, 232
(1987), affd. 862 F.2d 751, 753 (9th Cir. 1988). Inevitably
cases turn on the particular facts of each case, and no one
factor is controlling. See Profl. & Executive Leasing, Inc. v.
Commissioner, supra.
The “fundamental” test of whether an employer-employee
relationship exists is whether the hiring party has the “right to
9Courts have looked to factors including the hiring party’s
right to control the employee, the skill required, the source of
the instrumentalities and tools, the location of the work, the
duration of the relationship between the parties, whether the
hiring party has the right to assign additional projects to the
hired party, the extent of the hired party’s discretion over when
and how long to work, the method of payment, the hired party’s
role in hiring and paying assistants, whether the work is part of
the regular business of the hiring party, whether the hiring
party is in business, provides employee benefits, and the tax
treatment of the hired party. See Community for Creative
Non-Violence v. Reid, 490 U.S. 730, 751-752 (1989).
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