                  T.C. Summary Opinion 2009-79



                      UNITED STATES TAX COURT



                 MORRIS E. GEORGE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 16522-07S.            Filed May 19, 2009.



     Morris E. George, pro se.

     Kathleen K. Raup, for respondent.



     GOLDBERG, Special Trial Judge:   This case was heard pursuant

to the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.   Pursuant to section

7463(b), the decision to be entered is not reviewable by any

other court, and this opinion shall not be treated as precedent

for any other case.   Unless otherwise indicated, subsequent

section references are to the Internal Revenue Code in effect for
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the year in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

     The issue for decision is whether petitioner is liable for

self-employment tax on $20,794 he received from Staffing Plus,

Inc., in 2003.1

                             Background

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.      At the time petitioner

filed his petition, he resided in Pennsylvania.

     During 2003 petitioner attended Winchester University while

working as a self-employed social worker counseling children with

behavior problems.    He graduated in 2006 with a degree in

sociology.    During 2003 petitioner also worked at three part-time

jobs.    The sole income in dispute is $20,974 he received from

Staffing Plus, Inc. (Staffing Plus).      Staffing Plus contracted

with school districts to provide social workers and under this

arrangement assigned petitioner to various schools to provide

counseling.    Petitioner did not receive vacation time or sick

leave from either Staffing Plus or the school districts.


     1
      The notice of deficiency included a sec. 6651(a)(1)
addition to tax for failure to file (late filing of) the 2003
Federal income tax return. Petitioner did not dispute the
addition in his petition or at trial. Therefore, petitioner is
deemed to have conceded the issue. See Rule 34(b)(4); Swain v.
Commissioner, 118 T.C. 358, 364-365 (2002).
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       Staffing Plus reported the $20,974 on Form 1099-MISC,

Miscellaneous Income.    On June 14, 2006, petitioner filed his

2003 Federal income tax return reporting wages of $3,644 from his

three part-time jobs but omitting the $20,974 he received from

Staffing Plus.    In a letter dated July 6, 2006, the Internal

Revenue Service notified petitioner that he had failed to report

the $20,974 in income.    On July 14, 2006, petitioner filed a

second Form 1040, U.S. Individual Income Tax Return, for 2003

reporting the $20,974 from Staffing Plus as “Other income” on

line 21 of the Form 1040, but he did not compute self-employment

tax.

       Respondent issued a notice of deficiency dated May 24, 2007,

determining an increase in Federal income tax of $2,964 based on

petitioner’s failure to report self-employment tax on the $20,974

and other related computational adjustments and a $712.50

addition to tax under section 6651(a)(1) for petitioner’s failure

to timely file his 2003 tax return.

                             Discussion

       In general, the Commissioner’s determination set forth in a

notice of deficiency is presumed correct, and the taxpayer bears

the burden of showing that the determination is in error.      Rule

142(a)(1); Welch v. Helvering, 290 U.S. 111, 115 (1933).       Under

section 7491(a), the burden may shift to the Commissioner

regarding factual matters if the taxpayer produces credible
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evidence and meets the other requirements of the section.

Petitioner did not argue for a burden shift, and he did not

fulfill the requirements of section 7491(a); therefore, the

burden remains with him.   With respect to the addition to tax

under section 6651(a)(1), section 7491(c) places the burden of

production on the Commissioner.

     Section 1401 imposes a tax on self-employment income for old

age, survivors, disability insurance, and hospital insurance.

Sec. 1401(a) and (b); sec. 1.1401-1(a), Income Tax Regs.

Petitioner’s liability for self-employment tax therefore turns on

whether he had self-employment income.

     Services performed as an independent contractor give rise to

self-employment income.    See sec. 1402(c)(2) and (3); Jackson v.

Commissioner, 108 T.C. 130, 133-134 (1997).   Initially, we read

the petition as raising the issue of whether petitioner is

subject to self-employment tax.   Petitioner implies that he is an

employee and not an independent contractor.   However, the

following reasons leave no doubt that petitioner was an

independent contractor during 2003 when he received the $20,974.

     First, petitioner acknowledged to respondent in a discussion

before trial that the $20,794 from Staffing Plus was properly

categorized as “Other income” unlike the compensation received

from the three part-time jobs which he reported as wages.

Second, petitioner conceded in the stipulation of facts and on
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record that he was an independent contractor.     Third, Staffing

Plus reported the $20,974 on a Form 1099-MISC and not on a Form

W-2, Wage and Tax Statement.

       Petitioner’s sole argument at trial was that he was unable

to pay the self-employment tax because he had to pay college

expenses, medical bills, and other personal expenses.        The

statute simply does not provide an exception for inability to

pay.    The statute imposes self-employment tax on taxpayers with

net earnings from self-employment of $400 or more.        Sec.

1402(b)(2).    Accordingly, for the foregoing reasons, we sustain

respondent’s determination that petitioner is subject to self-

employment tax.

       To reflect our disposition of the issue,


                                            Decision will be entered

                                        for respondent.
