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that he bears the burden of proof on the statutory employee issue
because it constitutes a new matter under Rule 142.16
In determining whether a worker is a common law employee or
an independent contractor, the Court generally considers:
(1) The degree of control exercised by the principal; (2) which
party invests in work facilities used by the individual; (3) the
opportunity of the individual for profit or loss; (4) whether the
principal can discharge the individual; (5) whether the work is
part of the principal’s regular business; (6) the permanency of
the relationship; (7) the relationship the parties believed they
were creating; and (8) the provision of employee benefits. See
Ewens & Miller, Inc. v. Commissioner, supra at 270; Weber v.
Commissioner, supra at 387; Profl. & Executive Leasing, Inc. v.
Commissioner, supra at 232; Simpson v. Commissioner, 64 T.C. 974,
984-985 (1975); Cole v. Commissioner, T.C. Memo. 2006-44. All of
the facts and circumstances of each case are considered, and no
single factor is dispositive. Ewens & Miller, Inc. v.
Commissioner, supra at 270.
1. Degree of Control
The right of the principal to exercise control over the
agent, whether or not the principal does so, is the “crucial
16Respondent conceded that he bears the burden of proof
pursuant to Rule 142 because “The issue of Petitioner’s status as
a statutory employee of TIG is a new matter since the Notice of
Deficiency frames the issue of Petitioner’s Schedule C expenses
from the perspective of substantiation.”
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Last modified: November 10, 2007