Gary Lee Colvin - Page 19




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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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