Friday, November 5, 2010

For purposes of employment taxes, the term “employee” includes “any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee”. Sec. 3121(d)(2). Under common law rules, the most important consideration in determining an employer-employee relationship is generally whether the person for whom the services are performed has the right to direct and control the method and manner in which the work is to be done. See Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323 (1992); Marvel v. United States, 719 F.2d 1507, 1514 [52 AFTR 2d 83-6217] (10th Cir. 1983); Leavell v. Commissioner, 104 T.C. 140, 149-150 (1995). The Internal Revenue Service has identified these 20 factors for determining the existence of an employment relationship in various tax law contexts: (1) The putative employer's right to require compliance with instructions; (2) training by the putative employer; (3) integration of the worker's services into business operations; (4) a requirement that the worker's services be rendered personally; (5) the putative employer's hiring, supervising, and paying assistants; (6) a continuing relationship; (7) set hours of work; (8) a requirement that the worker devote substantially full time for the putative employer rather than being free to work when and for whom he or she chooses; (9) doing work on the putative employer's premises; (10) requiring the worker to perform services in the order or sequence set by the putative employer; (11) requiring the worker to submit oral or written reports; (12) paying by the hour, week, or month, rather than by the job or on a straight commission; (13) paying business and travel expenses; (14) furnishing tools and materials; (15) a lack of significant investment by the worker; (16) an absence of ability by the worker to realize a profit or suffer a loss; (17) working for no more than one firm at a time; (18) the worker's not making his or her services available to the general public on a regular and consistent basis; (19) a right to discharge the worker; and (20) a right by the worker to terminate the relationship without incurring liability. Rev. Rul. 87-41, 1987-1 C.B. 296, 298-299. The Court of Appeals for the Tenth Circuit, to which any appeal of this case would lie, has endorsed E. Inv. Corp. v. United States, 49 applying these 20 factors. F.3d 651, 653-654 (10th Cir. 1995). As the Court of Appeals has observed, however, not every factor applies in every situation, and no one factor in isolation is dispositive; rather “it is the total situation that controls.” Id. at 653 (quoting Bartels v. Birmingham, 332 U.S. 126, 130 [35 AFTR 1340] (1947)).

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