                  T.C. Summary Opinion 2010-89



                     UNITED STATES TAX COURT



            LEROY AND ELAINE G. DAVIS, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 4256-04S.              Filed July 7, 2010.



     Leroy Davis, pro se.

     Emile L. Hebert, III, for respondent.



     CARLUZZO, Special Trial Judge:   This case was heard

pursuant to the provisions of section 7463 of the Internal

Revenue Code in effect when the petition was filed.1   Pursuant to

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



     1
      Subsequent section references are to the Internal Revenue
Code of 1986, as amended, in effect for the relevant period.
Rule references are to the Tax Court Rules of Practice and
Procedure.
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any other court, and this opinion shall not be treated as

precedent for any other case.

     In two separate notices of deficiency, both dated December

8, 2003, respondent determined deficiencies, additions to tax,

and penalties with respect to petitioners’ Federal income taxes

for 1997 through 2000, inclusive.

     Most of the adjustments, including the imposition of the

additions to tax and penalties, made in the notices of deficiency

have been resolved by the parties.      The parties now dispute only

whether certain trade or business expenses deducted on Schedules

C, Profit or Loss From Business, included with petitioners’ 1997,

1998, 1999, and 2000 Federal income tax returns should be treated

instead as unreimbursed employee business expenses.     The

resolution of the dispute depends upon whether services provided

as a city councilman (Leroy Davis) or services provided as a

member of a city’s school board (Elaine G. Davis) were so

provided as employees of the city.

                            Background

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

Petitioners are, and have been at all times relevant, married to

each other.   At the time the petition was filed, they resided in

Louisiana.

     In 1990 Mr. Davis was appointed to serve as a councilman for

the city of Baker, Louisiana (City).     He was subsequently
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reelected to the position and served as a City councilman at all

times relevant to this proceeding.       As a City councilman, Mr.

Davis incurred and paid certain expenses that respondent concedes

are deductible as trade or business expenses.       For each year,

those expenses exceeded the compensation that he received from

City as one of its councilmen.

     During 1999 and 2000 Mrs. Davis served on City’s school

board.   As a member of the school board, she incurred and paid

certain expenses that respondent concedes are deductible as trade

or business expenses.   For each year, those expenses exceeded the

compensation she received from City as a member of its school

board.

     Neither petitioner was compensated on a fee basis by City;

each received a salary fixed by law.       City treated each

petitioner as an employee for purposes of employment taxes and

Federal tax withholdings.    For each year, the compensation City

paid to each petitioner was reported and shown as “wages” on a

Form W-2, Wage and Tax Statement.    As a City councilman, Mr.

Davis participated in a retirement system offered to City

employees, but City councilmen elected after a certain date are

no longer eligible to participate in that retirement system.

     Petitioners’ joint Federal income tax return for each year

in issue was timely filed.   Each of those returns includes a

Schedule A, Itemized Deductions, and each return, as applicable
                              - 4 -

for that year, includes a Schedule C on which the income and

deductions related to their respective public offices are shown.

     The adjustments made in the notices of deficiency that

remain in dispute reflect respondent’s determination that for

each year, as a City councilman and a member of City’s school

board each petitioner was a City employee.

                           Discussion

     Generally, the proper treatment of an individual’s business

expense deductions for Federal income tax purposes depends upon

the individual’s worker classification as either an employee or a

nonemployee.

     The manner in which each petitioner treated compensation

received from City for each year shows that they consider

themselves to have earned that compensation as nonemployees or,

for purposes of our discussion, independent contractors.

     Income and deductions attributable to the trade or business

of an individual who performs services as an independent

contractor are shown on a Schedule C.   The resultant net profit

or loss shown on the Schedule C is taken into account in the

computation of adjusted gross income.   Sec. 62(a)(1).

     According to respondent, as applicable for each year, each

petitioner was a City employee, not an independent contractor.

According to respondent, the income received and expenses
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incurred by either petitioner as a City councilman or a school

board member must be treated accordingly.

     Generally, income earned as an employee is treated and

reportable as “wages” on the employee’s Federal income tax

return.   Ignoring exceptions not relevant here, employee business

expenses, to the extent not reimbursed by an employer and subject

to certain limitations, must be deducted on a Schedule A as

miscellaneous itemized deductions.     Secs. 62(a)(2), 63(a), (d),

67(a) and (b), 162(a).

     If petitioners are treated as employees rather than

independent contractors, certain consequences, no doubt viewed as

negative by petitioners, follow:   (1) Petitioners’ trade or

business expense deductions would be limited by section 67(a);

(2) their otherwise allowable itemized deductions might be

reduced/limited as provided in section 68 (taking into account

their adjusted gross income); and (3) they might be subject to an

alternative minimum tax liability because miscellaneous itemized

deductions are not taken into account in the determination of a

taxpayer’s alternative minimum taxable income.    See sec.

56(b)(1)(A)(i); Johnson v. Commissioner, T.C. Memo. 1993-530.2



     2
      On the other hand, it should be noted that treating each
petitioner as an independent contractor rather than an employee
could, under circumstances not present here, result in “negative”
consequences as well--the imposition of the tax on the “net
earnings from self-employment” each received from City. See
secs. 1401 and 1402.
                                - 6 -

     Under the circumstances of this case, the worker

classification of each petitioner is informed by the same

controlling principles.    It is unnecessary to consider each

petitioner separately.    Instead, the following discussion will

apply to both with respect to the public office held by each.

     Generally, for Federal tax purposes, questions involving

worker classification are resolved with reference to common law

principles of agency.    See Nationwide Mut. Ins. Co. v. Darden,

503 U.S. 318, 322-325 (1992); Weber v. Commissioner, 103 T.C.

378, 386 (1994), affd. 60 F.3d 1104 (4th Cir. 1995); Profl. &

Executive Leasing, Inc. v. Commissioner, 89 T.C. 225, 232 (1987),

affd. 862 F.2d 751 (9th Cir. 1988).     Determining a worker’s

classification generally takes into account factors such as:     (1)

The degree of control exercised by the principal over the detail

of the work; (2) which party invests in the work facilities used

by the worker; (3) the opportunity of the hired worker for profit

or loss; (4) whether the principal can discharge the individual;

(5) whether the work is part of the principal’s regular business;

(6) the permanency of the relationship; (7) the relationship the

parties believed they were creating; and (8) the provision of

employee benefits that the principal typically provides to

employees.   See NLRB v. United Ins. Co. of Am., 390 U.S. 254, 258

(1968); United States v. Silk, 331 U.S. 704 (1947); Avis Rent A

Car Sys., Inc. v. United States, 503 F.2d 423, 429 (2d Cir.
                               - 7 -

1974); Ewens & Miller, Inc. v. Commissioner, 117 T.C. 263, 270

(2001); Weber v. Commissioner, supra at 387; Rosato v.

Commissioner, T.C. Memo. 2010-39.

     All things considered, we find that for Federal income tax

purposes, attempting to establish the worker classification of a

public official by the application of the above-referenced

factors is somewhat like forcing round pegs into square holes.

Instead, we note that for employment tax purposes, the definition

of “employee” includes a public official.    See sec. 3401(c).

Furthermore, for income tax purposes, only a public official who

is compensated on a fee basis may deduct business expenses as an

“independent contractor”, that is, on a Schedule C rather than a

Schedule A.   See sec. 62(a)(2)(C).    Lastly, for purposes of civil

tort liability, each petitioner would be treated as an employee

of City.   See La. Rev. Stat. Ann. sec. 42:1441.3 (2006).

     In determining the worker classification of each petitioner,

we are more influenced by the statutory provisions referenced in

the preceding paragraph than we are by the application of the

above-listed common law factors to their respective public

offices.   These statutory provisions, when considered together,

strongly suggest that consistent with their treatment for

employment tax purposes, petitioners, as public officials, should

be treated as employees of City for Federal income tax purposes

as well.   Petitioners’ evidence and arguments that focus
                               - 8 -

exclusively on the application of the common law factors do not

persuade us to rule in a manner inconsistent with this

suggestion.   We find that for purposes relevant here, each

petitioner is treated as an employee of City.

     Because neither petitioner was compensated on a fee basis by

City, the business expenses they incurred in their respective

public offices must be deducted accordingly; that is, on a

Schedule A as unreimbursed employee business expenses.     See secs.

62(a)(1), 63(d), 67(a).   Respondent’s determination that provides

for that treatment is therefore sustained.

     On the basis of the foregoing,


                                       Decision will be entered

                               under Rule 155.
