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if the contract of service contemplates that
substantially all of such services are to be performed
personally by such individual; except that an
individual shall not be included in the term “employee”
under the provisions of this paragraph if such
individual has a substantial investment in facilities
used in connection with the performance of such
services (other than in facilities for transportation),
or if the services are in the nature of a single
transaction not part of a continuing relationship with
the person for whom the services are performed * * *
As an individual qualifies as a statutory employee only if
the individual is not a common law employee, the Court will
initially determine whether petitioner was a common law employee
of TIG.
B. Common Law Employee
Whether an individual is an independent contractor or common
law employee is a question of fact. Weber v. Commissioner, 103
T.C. 378, 386 (1994), affd. 60 F.3d 1104 (4th Cir. 1995). In the
Fifth Circuit, to which this case would normally be appealable,
doubtful questions should be resolved in favor of employment.
Breaux & Daigle, Inc. v. United States, 900 F.2d 49, 52 (5th Cir.
1990). Generally, petitioner has the burden of proving error in
respondent’s notice of deficiency determination that he was a
common law employee. See Rule 142(a); Profl. & Executive
Leasing, Inc. v. Commissioner, 89 T.C. 225, 231 (1987), affd. 862
F.2d 751 (9th Cir. 1988). However, respondent conceded on brief
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