                       T.C. Memo. 2010-39



                      UNITED STATES TAX COURT



             THOMAS & CAROL ROSATO, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 20353-08.               Filed February 25, 2010.



     Alan J. Garfunkel, for petitioners.

     Shawna A. Early, for respondent.



                        MEMORANDUM OPINION


     COHEN, Judge:   Respondent determined a deficiency of $56,471

and an accuracy-related penalty of $11,294 under section 6662(a)

in relation to petitioners’ 2006 Federal income tax.    After a

concession by petitioners, the issues for decision are (1)

whether Thomas Rosato (petitioner) was an independent contractor,

statutory employee, or common law employee and (2) whether
                               - 2 -

petitioners are subject to the section 6662(a) penalty.     Unless

otherwise indicated, all section references are to the Internal

Revenue Code in effect for the year in issue, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

                            Background

     This case was submitted fully stipulated under Rule 122, and

the stipulated facts are incorporated as our findings by this

reference.   Petitioners resided in New York at the time the

petition was filed.

     Beginning in 1975 petitioner worked as a salesperson for

O.C. Tanner (Tanner), a company headquartered in Salt Lake City,

Utah, that provides products and services that assist companies

with developing programs for recognizing and rewarding their

employees.   Petitioner entered into an employment agreement with

Tanner dated April 21, 1975, that detailed petitioner’s sales

territory in the New York City area.     Tanner also provided

petitioner with a list of clients that he was not allowed to

solicit, and   petitioner was not permitted to work as a

salesperson for Tanner’s competitors or other employers while he

was acting as a salesperson for Tanner.     This noncompetition

obligation was limited to the time petitioner was acting as a

salesperson for Tanner.
                               - 3 -

     The 1975 employment agreement identified petitioner as an

“employee” of Tanner.   Terms of the employment agreement included:

          The Employee shall devote his full working time
     and his best efforts to the service of the Company in
     selling and promoting the Company’s products in
     accordance with Company policies and under Company
     direction; and, during the term of this agreement, he
     shall not engage in outside business activities. He
     shall have no authority to bind or obligate the Company
     in any way without prior written authorization from an
     official of the Company in Salt Lake City.

          *      *      *      *       *     *      *

          Any expense incurred by the Employee in excess of
     his expense allowance shall be paid by him; and the
     Employee shall not obligate the Company in any way for
     any of his expenses without prior written authorization
     by an officer of the Company in Salt Lake City, Utah.

           *      *      *      *       *     *      *

     The Employee is not authorized to and shall not handle
     any money or other forms of payment by customers unless
     specifically directed to do so by an official of the
     Company in Salt Lake City, Utah in special instances.

     The employment agreement was supplemented with several

addenda regarding compensation and expense allowances between

1976 and 1983.   In August 1984, Tanner advised its salespeople by

letter that the company was adopting the principles of the Golden

Rule within the employer-employee relationship, eliminating

signed or unsigned written agreements and that

          As a first step * * * all contracts, whether
     signed or unsigned, are no longer necessary.

          The company intends to honor the terms of these
     agreements as they relate to your compensation, your
                               - 4 -

     territory, and other general policy matters regarding
     your employment relationship with the company.

          In the future, instead of stating policies in
     written contracts, the company will utilize letters,
     bulletins, staff memos, etc. to define company policies
     and explain company changes.

     A letter dated November 26, 1984, from Tanner and addressed

to petitioner, instructed him that by signing and returning a

copy of this letter he acknowledged that his prior written

agreement with the company was terminated and that he supported

Tanner’s new policies.   Petitioner signed and dated the letter

December 2, 1984.   Tanner did not alter the relationship with

petitioner or salespersons holding similar situations and

intended to continue treating them as employees.

     In a letter dated January 23, 2002, Tanner notified

petitioner of “the conditions of your employment at O.C. Tanner”

because of several concerns regarding petitioner’s actions at

work.   These conditions included that petitioner attend monthly

counseling sessions (some of which Tanner scheduled for

petitioner), conduct weekly meetings, and provide corresponding

written reports to Tanner.   During 2006 petitioner continued to

work as a salesperson for Tanner in New York, New York.    Tanner

required petitioner to attend company sales meetings and training

sessions and expected petitioner to have a presence in the New

York office.   However, Tanner did not set petitioner’s work hours

or instruct him when to work, he could take days off as he chose,
                               - 5 -

and he could perform some of his sales work from home.    According

to Tanner, in 2006

          Mr. Rosato was expected to devote his working
     hours to the advancement of O.C. Tanner’s interests.
     We also expected him to work solely for O.C. Tanner and
     not to engage in side businesses that competed with
     O.C. Tanner. Mr. Rosato was free to engage in other
     business activities (e.g., leasing real estate) so long
     as it was done on his own time. If Mr. Rosato had left
     O.C. Tanner, he would not be prohibited from working
     for a competitor, although we would have insisted he
     maintain OCT’s confidences and trade secrets.

Tanner’s understanding of the nature of its relationship

with petitioner for the period of 1975 through 2006 was that

at all times he was an at-will employee.

     In addition to working as a salesperson for Tanner during

2006, petitioner managed Tanner’s regional office in New York,

New York.   In this capacity, petitioner supervised salespersons,

secretaries, and other administrative personnel in the New York

regional office whom Tanner hired.

     With respect to the New York office and its employees,

Tanner and petitioner followed a cost-sharing arrangement based

on a formula set forth by Tanner.    Petitioner paid for a portion

of his office, half of the cost of his personal secretary, and

half of the cost of his own administrative assistant.    Petitioner

also paid commissions to other New York-based Tanner salespersons

from the commissions that he received from Tanner.      Petitioner

had input regarding the hiring of these salespersons.
                                - 6 -

     Petitioner was permitted to participate in Tanner’s

Retirement Plan for Sales Representatives and in Tanner’s profit-

sharing plan.    During 2006 petitioner was included in Tanner’s

medical insurance plan, section 401(k) plan, group term life

insurance plan, and unemployment insurance plan.    Petitioner made

contributions toward the cost of the medical insurance plan, to

the section 401(k) plan, and to the group term life insurance

plan.

     Tanner outlined expense reporting requirements in the

Monthly Regional Expense Report Instructions dated January 2006.

Tanner’s expense report instructions identified expenses that

were considered reimbursable and nonreimbursable.    Accordingly,

petitioner submitted monthly expense reports to Tanner for

reimbursement of operating expenses such as phone, utilities,

postage, customer entertainment, office supplies, and meals.

Petitioner did not receive reimbursements from Tanner for all of

his business expenses related to sales efforts on behalf of

Tanner.

     Petitioner received a Form W-2, Wage and Tax Statement, from

Tanner for 2006 that reported his income as “Wages, tips, other

compensation”.    The Form W-2 also reported that Tanner withheld

Federal and State income taxes and Social Security and Medicare

taxes and that Tanner had established a section 401(k) plan
                               - 7 -

account for petitioner.   Tanner did not report that petitioner

was a statutory employee on the Form W-2.

     Petitioners jointly filed a Form 1040, U.S. Individual

Income Tax Return, for 2006 and left blank line 7, “Wages,

salaries, tips, etc.”   On an attached Schedule C, Profit or Loss

From Business, petitioner’s wife reported profit from a “Real

Estate Sales” business.   On another attached Schedule C,

petitioner reported his principal business or profession as

“Outside Sales” and reported gross receipts or sales of $468,378,

the wage amount shown on the Form W-2 that Tanner issued.

Petitioner checked the box on line 1 of his outside sales

Schedule C, misrepresenting that his Form W-2 identified him as a

statutory employee.   Petitioner did not claim expenses for the

business use of a home on the Schedule C.

     In the notice of deficiency, the IRS determined that

petitioner was a common law employee and therefore was not

permitted to report income and expenses on Schedule C.   The

explanation in the notice stated:

          Only statutory employee income can be offset by
     expenses reported on Schedule C, Profit or Loss From
     Business, or Schedule C-EZ. Since your employer did
     not indicate on Form W-2, Wage and Tax Statement, that
     you were a statutory employee, we cannot allow the
     expenses used to offset that income on Schedule C or
     Schedule C-EZ.

     On the basis of this determination, the IRS reported

petitioners’ tax required to be shown on the 2006 return as
                                - 8 -

$126,216--$56,471 more than petitioners had reported.    The IRS

further determined that petitioners are liable for the accuracy-

related penalty under section 6662(a).

                            Discussion

     An individual performing services as an employee may deduct

expenses incurred in the performance of services as an employee

as miscellaneous itemized deductions on Schedule A, Itemized

Deductions, to the extent the expenses exceed 2 percent of the

taxpayer’s adjusted gross income.    Secs. 62(a)(2), 63(a), (d),

67(a) and (b), 162(a).   Itemized deductions may be limited under

section 68 and may have alternative minimum tax implications

under section 56(b)(1)(A)(i).

     An individual who performs services as an independent

contractor is entitled to deduct expenses incurred in the

performance of services on Schedule C and is not subject to

limitations imposed on miscellaneous itemized deductions.      A

statutory employee under section 3121(d)(3)(D) is not an employee

for purposes of section 62 and may deduct business expenses on

Schedule C.   See Rosemann v. Commissioner, T.C. Memo. 2009-185;

Rev. Rul. 90-93, 1990-2 C.B. 33.

     Petitioners argue that in 2006 petitioner was an independent

contractor or statutory employee and is entitled to deduct

business expenses on Schedule C.    Respondent contends that

petitioner was a common law employee in 2006 and that
                               - 9 -

unreimbursed employee expenses are thus properly reportable on

Schedule A, subject to the 2 percent of adjusted gross income

limitation.

     An individual qualifies as a statutory employee under

section 3121(d)(3) only if the individual is not a common law

employee pursuant to section 3121(d)(2).   See Ewens & Miller,

Inc. v. Commissioner, 117 T.C. 263, 269 (2001); Rosemann v.

Commissioner, supra.   Section 3121(d) defines “employee”, in

pertinent part, as follows:

          (2) any individual who, under the usual common law
     rules applicable in determining the employer-employee
     relationship, has the status of employee; or

          (3) any individual (other than an individual who
     is an employee under paragraph (1) or (2)) who performs
     services for remuneration for any person--

           *      *      *      *      *      *      *

               (D) as a traveling or city salesman, other
          than as an agent-driver or commission-driver,
          engaged upon a full-time basis in the solicitation
          on behalf of, and the transmission to, his
          principal (except for side-line sales activities
          on behalf of some other person) of orders from
          wholesalers, retailers, contractors, or operators
          of hotels, restaurants, or other similar
          establishments for merchandise for resale or
          supplies for use in their business operations;

     if the contract of service contemplates that
     substantially all of such services are to be performed
     personally by such individual; except that an
     individual shall not be included in the term “employee”
     under the provisions of this paragraph if such
     individual has a substantial investment in facilities
     used in connection with the performance of such
     services (other than in facilities for transportation),
     or if the services are in the nature of a single
                              - 10 -

     transaction not part of a continuing relationship with
     the person for whom the services are performed; * * *

Because an individual qualifies as a statutory employee only if

the individual is not a common law employee, we will first decide

whether petitioner was a common law employee of Tanner.

     Although the income tax treatment of a taxpayer’s trade or

business expense deductions under section 62(a) depends on

whether the taxpayer is “[performing] * * * services * * * as an

employee”, subtitle A of the Internal Revenue Code does not

define “employee”.   Under these circumstances, we apply common

law rules to determine whether the taxpayer is an employee.

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-325 (1992);

Weber v. Commissioner, 103 T.C. 378, 386 (1994), affd. 60 F.3d

1104 (4th Cir. 1995).

     Whether an individual is an employee must be determined on

the basis of the specific facts and circumstances involved.

Profl. & Executive Leasing, Inc. v. Commissioner, 89 T.C. 225,

232 (1987), affd. 862 F.2d 751 (9th Cir. 1988); Simpson v.

Commissioner, 64 T.C. 974, 984 (1975).   Relevant factors include:

(1) The degree of control exercised by the principal; (2) which

party invests in the work facilities used by the worker; (3) the

opportunity of the individual 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
                              - 11 -

were creating; and (8) the provision of employee benefits.   See

Avis Rent A Car Sys., Inc. v. United States, 503 F.2d 423, 429

(2d Cir. 1974); Ewens & Miller, Inc. v. Commissioner, supra at

270; Weber v. Commissioner, supra at 387.   We consider all of the

facts and circumstances of each case, and no single factor is

determinative.   Ewens & Miller, Inc. v. Commissioner, supra at

270; Weber v. Commissioner, supra at 387.

     Although not the exclusive inquiry, the degree of control

exercised by the principal over the worker is the crucial test in

determining the nature of a working relationship.   See Clackamas

Gastroenterology Associates, P.C. v. Wells, 538 U.S. 440, 448

(2003); Leavell v. Commissioner, 104 T.C. 140, 149-150 (1995).

To retain the requisite degree of control over a worker, the

principal need not direct the worker’s every move; it is

sufficient if the right to do so exists.    Weber v. Commissioner,

supra at 387; see sec. 31.3401(c)-1(b), Employment Tax Regs.

     Relying on Hathaway v. Commissioner, T.C. Memo. 1996-389,

petitioners assert that “Tanner’s lack of control and lack of the

right to control the manner and means by which petitioner

solicited sales strongly supports a finding that petitioner was

* * * not an employee of Tanner”.   Unlike petitioner, the

traveling salesperson in Hathaway was not required to attend

sales meetings or maintain an office presence and was permitted

to sell nonconflicting lines of merchandise from other companies.
                             - 12 -

Additionally, Tanner’s January 2002 letter to petitioner that

outlined “conditions of [petitioner’s] employment” shows that

petitioner had superiors at Tanner who oversaw and supervised his

performance.

     The fact that a worker provides his or her own tools, or

owns a vehicle that is used for work, is indicative of

independent contractor status.   Ewens & Miller, Inc. v.

Commissioner, supra at 271 (citing Breaux & Daigle, Inc. v.

United States, 900 F.2d 49, 53 (5th Cir. 1990)).   Additionally,

maintenance of a home office is consistent with independent

contractor status, although alone it does not constitute

sufficient basis for a finding of independent contractor status.

See Colvin v. Commissioner, T.C. Memo. 2007-157, affd. 285 Fed.

Appx. 157 (5th Cir. 2008).

     Petitioner and Tanner followed a cost-sharing arrangement

with respect to the New York office.   The record does not reflect

the detailed terms of this arrangement.   Further, although

petitioner incurred additional expenses related to Tanner sales

activities and hired a personal secretary and administrative

assistant, it was his decision to incur these additional costs,

and Tanner shared some of these expenses.   Cf. Hathaway v.

Commissioner, supra (salesperson not reimbursed for office space

expenses and only provided minimal supplies from company such as

order forms, sample swatches, and preaddressed envelopes).
                                - 13 -

Additionally, petitioner claimed that he worked from home on

occasion, but he has not presented any evidence that he made

expenditures to establish a home office qualifying under section

280A.     See Cole v. Commissioner, T.C. Memo. 2006-44; Lewis v.

Commissioner, T.C. Memo. 1993-635.

        The opportunity for profit or loss indicates nonemployee

status.     Simpson v. Commissioner, supra at 988.   Earning an

hourly wage or fixed salary indicates that an employer-employee

relationship exists.     See Kumpel v. Commissioner, T.C. Memo.

2003-265.     Petitioner was not paid a fixed wage; and because he

shared expenses with Tanner, he risked a net loss if his profits

did not exceed his expenses.

        Where the principal retains the right to discharge a worker,

it is indicative of an employer-employee relationship.     See

Colvin v. Commissioner, supra.     Tanner retained the right to

discharge petitioner at will.

        Petitioner’s sales efforts were an integral part of Tanner’s

regular business of providing products and services relating to

assisting companies with developing programs for recognizing and

rewarding their employees.     Where work is part of the principal’s

regular business, it is indicative of employee status.     See

Simpson v. Commissioner, supra at 989; Rosemann v. Commissioner,

T.C. Memo. 2009-185.
                               - 14 -

     Permanency of a working relationship is indicative of common

law employee status.   See Rosemann v. Commissioner, supra.       The

lengthy working relationship between Tanner and petitioner weighs

in favor of petitioner’s being a common law employee.

     The record shows that Tanner considered petitioner a common

law employee.   Petitioner and Tanner did not have a written

employment contract in place in 2006.     However, after Tanner

adopted the Golden Rule principle, the parties continued to honor

the terms and conditions of the original employment contract, and

in 2002 Tanner further mandated conditions that petitioner had to

follow to maintain his position.   The withholding of taxes is

consistent with a finding that an individual is a common law

employee.   See Packard v. Commissioner, 63 T.C. 621, 632 (1975).

Tanner provided petitioner a Form W-2 for 2006 and withheld

Federal and State income taxes and Social Security and Medicare

taxes from petitioner’s pay.

     Benefits such as health insurance, life insurance, and

retirement plans are typically provided to employees.      Weber v.

Commissioner, 103 T.C. at 393-394.      Petitioner participated in

Tanner’s medical insurance plan, section 401(k) plan, group term

life insurance plan, and unemployment insurance plan.     Tanner

also reimbursed petitioner for business expenses according to

outlined terms.
                              - 15 -

     Considering the record and weighing the factors, we conclude

that petitioner was a common law employee of Tanner in 2006.

Thus petitioner is precluded from being a statutory employee

pursuant to section 3121(d)(3).   See Ewens & Miller, Inc. v.

Commissioner, 117 T.C. at 269; Rosemann v. Commissioner, supra.

     Respondent determined that petitioners are liable for an

accuracy-related penalty under section 6662(a) for 2006.    Section

6662(a) and (b)(1) and (2) imposes a 20-percent accuracy-related

penalty on any underpayment of Federal income tax attributable to

a taxpayer’s negligence or disregard of rules or regulations, or

a substantial understatement of income tax.   Section

6662(d)(1)(A) defines “substantial understatement of income tax”

as an amount exceeding the greater of 10 percent of the tax

required to be shown on the return or $5,000.   A taxpayer is

negligent when he or she fails “‘to do what a reasonable and

ordinarily prudent person would do under the circumstances.’”

Korshin v. Commissioner, 91 F.3d 670, 672 (4th Cir. 1996)

(quoting Schrum v. Commissioner, 33 F.3d 426, 437 (4th Cir.

1994), affg. in part and vacating in part T.C. Memo. 1993-124),

affg. T.C. Memo. 1995-46.

     Under section 7491(c), the Commissioner bears the burden of

production with regard to penalties and must come forward with

sufficient evidence indicating that it is proper to impose

penalties.   Higbee v. Commissioner, 116 T.C. 438, 446 (2001).
                              - 16 -

However, once the Commissioner has met the burden of production,

the burden of proof remains with the taxpayer, including the

burden of proving that the penalties are inappropriate because of

reasonable cause or substantial authority.    Id. at 446-447.

     Respondent determined that petitioners have an underpayment

of tax that is attributable to a substantial understatement of

income tax in 2006.   Respondent contends that the amount of tax

required to be shown on petitioners’ 2006 tax return is $126,216

and the understatement of income tax is $56,741, which is greater

than $5,000 and than 10 percent of the amount of tax required to

be shown and thus is substantial.   Furthermore, respondent

asserts that when they received a Form W-2 from Tanner that

reported petitioner’s 2006 earnings as salary or wages and did

not classify petitioner as a statutory employee, petitioners were

put on notice that these earnings were not eligible for reporting

on Schedule C. Respondent’s burden of production has been met.

     Petitioners argue that they are not liable for the section

6662(a) penalty because Hathaway v. Commissioner, T.C. Memo.

1996-389, “constitutes substantial authority on which * * *

[petitioners] relied”.   Because the authority upon which

petitioners rely is materially distinguishable from the instant

case, it is not substantial authority for their erroneous

position.   See Antonides v. Commissioner, 91 T.C. 686, 703

(1988), affd. 893 F.2d 656 (4th Cir. 1990).
                                  - 17 -

     The accuracy-related penalty under section 6662(a) will not

be imposed with respect to any portion of the underpayment as to

which the taxpayer acted with reasonable cause and in good faith.

Sec. 6664(c)(1).    The decision as to whether a taxpayer acted

with reasonable cause and in good faith is made by taking into

account all of the pertinent facts and circumstances.         Sec.

1.6664-4(b)(1), Income Tax Regs.      The most important factor is

the extent of the taxpayer’s effort to assess his or her proper

tax liability.     Id.   This factor includes, in some circumstances,

the taxpayer’s reasonable and good faith reliance on the advice

of a tax professional.      Id.

     Petitioners’ substantial understatement of income tax

resulted from claiming deductions on Schedule C that were

properly reportable on Schedule A.         Petitioners have failed to

show that this position was taken with reasonable cause and in

good faith within the meaning of section 6664(c)(1).         Petitioners

do not argue that they reasonably relied on the advice of a

professional, such as an accountant, to support their claim that

they had reasonable cause for, and acted in good faith with

respect to, any portion of the underpayment of tax for 2006.         See

sec. 1.6664-4(b)(1), Income Tax Regs.         Furthermore, on their 2006

tax return, petitioners misrepresented petitioner’s employee

status as reported on the Form W-2 from Tanner.         Petitioners have
                              - 18 -

failed to establish that they are not liable for the accuracy-

related penalty under section 6662(a).

     We have considered all arguments made by the parties.   To

the extent not mentioned or addressed, they are irrelevant or

without merit.   To reflect the foregoing,


                                         Decision will be entered

                                    for respondent.
