Peno Trucking, Incorporated - Page 18




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          question which remains is whether petitioner had a reasonable               
          basis for treating the drivers as nonemployees.                             
               A taxpayer is treated as having a reasonable basis for not             
          treating an individual as an employee if the taxpayer reasonably            
          relied on any of the following:                                             
                    (A) judicial precedent, published rulings,                        
               technical advice with respect to the taxpayer, or a                    
               letter ruling to the taxpayer;                                         
                    (B) a past Internal Revenue Service audit of the                  
               taxpayer in which there was no assessment attributable                 
               to the treatment (for employment tax purposes) of the                  
               individuals holding positions substantially similar to                 
               the position held by this individual; or                               
                    (C) long standing recognized practice of a                        
               significant segment of the industry in which such                      
               individual was engaged.                                                
          Sec. 530(a)(2).22                                                           
               Petitioner’s sole contention is that it relied upon judicial           
          precedent in determining its drivers were independent                       
          contractors, basing its decision on the court of common pleas’              
          rulings and the administrative and appeals decisions finding that           
          two of petitioner’s drivers were independent contractors.                   




               22 A taxpayer who fails to come within any of the safe                 
          harbors is still entitled to relief if the taxpayer can                     
          demonstrate, in some other manner, a reasonable basis for not               
          treating the individual as an employee.  Veterinary Surgical                
          Consultants, P.C. v. Commissioner, 117 T.C. 141, 147 (2001),                
          affd. sub nom. Yeagle Drywall Co. v. Commissioner, 54 Fed. Appx.            
          100 (3d Cir. 2002).                                                         






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