- 18 -
itemized deductions.15 See Prouty v. Commissioner, T.C. Memo.
2002-175 (citing Rev. Rul. 90-93, 1990-2 C.B. 33). An individual
qualifies as a statutory employee pursuant to section 3121(d)(3)
only if such individual is not a common law employee pursuant to
section 3121(d)(2). Ewens & Miller, Inc. v. Commissioner, 117
T.C. 263, 269 (2001). Section 3121(d) defines employee, in
pertinent part, as follows:
(1) any officer of a corporation; or
(2) any individual who, under the usual common law
rules applicable in determining the employer-employee
relationship, has the status of an employee; or
(3) any individual (other than an individual who
is an employee under paragraph (1) or (2)) who performs
services for remuneration for any person--
* * * * * * *
(D) as a traveling or city salesman,
other than as an agent-driver or commission-
driver, engaged upon a full-time basis in the
solicitation on behalf of, and the
transmission to, his principal (except for
side-line sales activities on behalf of some
other person) of orders from wholesalers,
retailers, contractors, or operators of
hotels, restaurants, or other similar
establishments for merchandise for resale or
supplies for use in their business
operations;
15Generally, an employee may deduct unreimbursed employment
expenses on Schedule A subject to an overall 2-percent of
adjusted gross income limitation. See secs. 62(a), 67(a). A
statutory employee is not an employee for purposes of sec. 62.
See sec. 3121(d); Prouty v. Commissioner, T.C. Memo. 2002-175.
As the Court concludes, infra, that petitioner is not a statutory
employee, petitioner’s expenses are subject to this overall
2-percent of adjusted gross income limitation.
Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
Last modified: November 10, 2007