Peno Trucking, Incorporated - Page 19




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               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,                   







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