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A common law employee-employer relationship exists when:
the person for whom the services are performed has the
right to control and direct the individual who performs
the services, not only as to the result to be
accomplished by the work but also as to the details and
means by which that result is accomplished. That is,
an employee is subject to the will and control of the
employer not only as to what shall be done but how it
shall be done. In this connection, it is not necessary
that the employer actually direct or control the manner
in which services are performed; it is sufficient if he
has the right to do so. The right to discharge is also
an important factor indicating that the person
possessing that right is an employer. Other factors
characteristic of an employer, but not necessarily
present in every case, are the furnishing of tools and
the furnishing of a place to work, to the individual
who performs the services. In general, if an
individual is subject to the control or direction of
another merely as to the result to be accomplished by
the work and not as to the means and methods for
accomplishing the result, he is an independent
contractor. * * * [Sec. 31.3121(d)-1(c)(2), Employment
Tax Regs.]
Petitioner contends that he was a common law employee of
DBMA. We consider the following factors to decide whether a
worker is a common law employee or an independent contractor:
(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; and (7) the relationship the parties believed
they were creating. Weber v. Commissioner, 103 T.C. 378, 387
(1994), affd. per curiam 60 F.3d 1104 (4th Cir. 1995). All the
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Last modified: November 10, 2007