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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
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Last modified: November 10, 2007