Peter F. & Maureen L. Speltz - Page 18

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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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