Gary Lee Colvin - Page 20




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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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