- 19 - For a taxpayer to have a reasonable basis for not treating an individual as an employee under the judicial precedent safe harbor, the judicial precedent relied upon must have evaluated the employment relationship through a Federal common law analysis. See sec. 3121(d); Nu-Look Design, Inc. v. Commissioner, T.C. Memo. 2003-52, affd. 356 F.3d 290 (3d Cir. 2004); secs. 31.3121(d)-1(c), 31.3306(i)-1, Employment Tax Regs. To come within the safe harbor, “the taxpayer must have relied on the alleged authority during the periods in issue, at the time the employment decisions were being made. The statute does not countenance ex post facto justification.” Nu-Look Design, Inc. v. Commissioner, supra. The record does not indicate that the BWC, the OIC, or the court of common pleas evaluated the employment relationships of petitioner’s former drivers, Chatfield and Jamison, through a common law analysis. Only the BWC’s vacated order in the Jamison case indicated the grounds for its decision: “The signed agreement by and between Peno Trucking Inc. and the Injured Worker dated 3/3/97.” Moreover, nothing in the record indicates the rulings concerning Jamison and Chatfield were relied upon at the time petitioner’s employment decisions were made. Petitioner failed to establish that it relied upon judicial precedent or otherwise provided a reasonable basis to disregard section 3121(d)(2) and sections 31.3121(d)-1(c) and 31.3306(i)-1,Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 NextLast modified: November 10, 2007