                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-3215
                                   ___________

Van Roekel Farms, Inc.,               *
                                      *
                  Appellant,          *
                                      * Appeal from the United States
    v.                                * Tax Court.
                                      *
Commissioner of Internal Revenue,     *      [UNPUBLISHED]
                                      *
                  Appellee.           *
                                 ___________

                             Submitted: June 21, 2001

                                  Filed: June 25, 2001
                                   ___________

Before MORRIS SHEPPARD ARNOLD, RICHARD S. ARNOLD, and FAGG,
      Circuit Judges.
                         ___________

PER CURIAM.

       Van Roekel Farms, Inc. (Taxpayer) appeals the tax court's ruling upholding the
Commissioner of Internal Revenue's decision that Taxpayer's Employee Stock
Ownership Plan did not qualify under 26 U.S.C. § 401(a), and thus, the Taxpayer's
related Employee Stock Ownership Trust was not exempt from income tax. Contrary
to Taxpayer's argument that it paid "management fees" to its founder, Eugene Van
Roekel, as an employee and not as an independent contractor, the tax court's order
notes Taxpayer's concession that Van Roekel was an independent contractor and the
scant record before this court does not indicate that Taxpayer ever sought to prove
otherwise. Indeed, the treatment of the management fees on the Taxpayer's and Van
Roekel's tax returns show Van Roekel was an independent contractor. Having
considered the record and the parties' briefs, we conclude the Taxpayer's argument is
foreclosed by circuit precedent. See Howard E. Clendenen Inc. v. Commissioner, 207
F.3d 1071 at 1072-73, 1075 (8th Cir. 2000). We affirm on the basis of the tax court's
opinion. See 8th Cir. R. 47B.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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