Peno Trucking, Incorporated - Page 12




                                       - 12 -                                         
          principal’s regular business; (6) the permanency of the                     
          relationship; and (7) the relationship the parties believed they            
          were creating, Ewens & Miller, Inc. v. Commissioner, 117 T.C.               
          263, 270 (2001); Weber v. Commissioner, 103 T.C. 378, 387 (1994),           
          affd. 60 F.3d 1104 (4th Cir. 1995); Potter v. Commissioner, T.C.            
          Memo. 1994-356.  No single factor is dispositive.  Ewens &                  
          Miller, Inc. v. Commissioner, supra at 270.  If an                          
          employer-employee relationship exists, characterization by the              
          parties as some other relationship is immaterial.  Sec.                     
          31.3121(d)-1(a)(3), Employment Tax Regs.                                    
               A.   Degree of Control                                                 
               The “degree of control” test requires the Court to examine             
          not only the control exercised by an alleged employer, but also             
          the degree to which the alleged employer may intervene to impose            
          control.  Weber v. Commissioner, supra at 387-388.                          
               The agreement stated that “Peno Trucking Inc. shall not                
          direct in any manner the means or method by which Operator shall            
          perform his occupation” and “Operators shall, at all times                  
          applicable hereto, work at the direction and control of” persons            
          or corporations petitioner contracts with to transport goods.               
          The stipulated facts and testimony clearly show otherwise.                  
               Pursuant to the leases with Ohio Transport, petitioner was             
          responsible for hiring drivers, overseeing all work performed by            
          the drivers, confirming their work was performed in accordance              







Page:  Previous  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  Next 

Last modified: November 10, 2007