                          T.C. Memo. 2010-157



                        UNITED STATES TAX COURT



                  DANIEL FEASTER, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2296-09.                 Filed July 22, 2010.



     Daniel Feaster, pro se.

     David M. McCallum, for respondent.



                MEMORANDUM FINDINGS OF FACT AND OPINION


     COHEN, Judge:     Respondent determined a deficiency of $1,387

in petitioner’s 2006 Federal income tax.    The issue for decision

is whether petitioner was an independent contractor or a common

law employee.    Unless otherwise indicated, all section references

are to the Internal Revenue Code in effect for the year in issue.
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                            FINDINGS OF FACT

     Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference.

Petitioner resided in South Carolina at the time that he filed

his petition.

     From 2002 to 2009, petitioner was an accountant performing

field auditing services for Wm. Langer & Associates, Inc., of the

Carolinas (Langer), a company engaged in the business of

insurance premium audits and inspections.       On December 18, 2002,

he provided to Langer a completed Form W-4, Employee’s

Withholding Allowance Certificate.       On December 20, 2002, he

signed an acknowledgment statement that was part of a Langer

employee job description.    The job description set forth

requirements for, among other things:       Time limits on the

performance of services for Langer’s customers; submission of

completed work to Langer’s office “a minimum of three times

weekly”; quality specifications; control by Langer over customer

charges; communication with the Langer office; progress reports;

submission of weekly itineraries; closing out cases; pay, based

on billable hours, to be increased or decreased based on the

employee’s “overall job performance”; reimbursement of expenses

and an explanation that employees would receive separate checks
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for taxable pay and non-taxable reimbursements; and employee

benefits.    The “Description of Job” concluded with the following

statement:

          Employees are sent cases to be completed and these
     cases are to be completed and returned to the office
     within the time restraints, with the quality and time
     charges as shown in the above paragraphs. Federal,
     State, County and City taxes will be deducted from the
     employee pay as determined by the state in which they
     are domiciled.

Immediately beneath the concluding job description, the

acknowledgment statement petitioner executed stated:   “I have

fully read and understand the expectations of this Company in

regard to my job description and agree to follow these guidelines

as established by Langer & Associates, Inc.”.

     During 2006, Langer paid petitioner $29,615 in wages and

withheld $1,915 for Federal income tax, $1,836.13 for Social

Security tax, and $429.42 for Medicare tax.   Langer reimbursed

petitioner $6,764 for expenses.

     On his 2006 Form 1040, U.S. Individual Income Tax Return,

petitioner reported $30,155 of gross receipts and $19,739.01 of

net profits on Schedule C, Profit or Loss From Business.   The

gross receipts included the wages received from Langer.

Petitioner deducted car and truck expenses, office expenses,

travel and meals expenses, and expenses for business use of his

home in arriving at net profit.   He reported $76.30 in self-

employment tax and attached an explanatory statement as follows:
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     To The Reviewer of My Tax Return:

          I claim that only part of my self-employment
     income is subject to the Self-Employment tax. the
     basis of my claim is as follows:

          Some of my self-employment income satisfies the
     first paragraph, of the Internal Revenue Service 2006
     Instructions for Schedule SE, Self-Employment Tax
     document, under the section “Income and Losses Not
     Included in Net Earnings From Self-Employment”, which
     reads; “Salaries, fees, etc., subject to social
     security or Medicare tax that you received for
     performing services...”.

          One of my clients deducted fully-matched social
     security and Medicare tax, from the payments for my
     services. The W-2 form attached to my form 1040 in
     this return, attests to this claim. My Schedule SE
     computes the self employment tax on all other self
     employment income.

     In the notice of deficiency, the expenses claimed on

Schedule C were disallowed, with the following explanation:

     SCHEDULE C OR SCHEDULE C-EZ EXPENSES USED TO REDUCE INCOME

          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 can not allow the
     expenses used to offset that income on Schedule C or
     Schedule C-EZ.

          If this is incorrect, please send us a statement
     from your employer(s) verifying that you are a
     statutory employee.

          If you are not a statutory employee, you must
     include the income as wages on your tax return.
     Allowable related expenses on Form 2106, Employee
     Business Expenses, can be claimed as an itemized
     deduction on Schedule A.
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                                OPINION

      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.    Petitioner does not claim that

he is a statutory employee, and, in any event, our determination

of status would be the same under rules applicable to statutory

employees.    See, e.g., Rosato v. Commissioner, T.C. Memo. 2010-

39.

      Petitioner argues that in 2006 he was entitled to deduct

business expenses on Schedule C because he was an independent

contractor.   Respondent contends that petitioner was a common law
                               - 6 -

employee in 2006.   Neither party has identified any dispute as to

the expenses petitioner claimed, and petitioner has not

presented any evidence of deductions to which he is entitled that

respondent has not allowed.

     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.   Weber v. Commissioner, 60 F.3d at 1110; Profl. & Exec.

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 were

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

v. Commissioner, 60 F.3d at 1110, 1114; Ewens & Miller, Inc. v.

Commissioner, 117 T.C. 263, 270 (2001).    We consider all of the

facts and circumstances of each case, and no single factor is
                               - 7 -

determinative.   Weber v. Commissioner, 60 F.3d at 1110; Ewens &

Miller, Inc. v. Commissioner, supra at 270.

     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,

60 F.3d at 1110; see sec. 31.3401(c)-1(b), Employment Tax Regs.

     Petitioner signed his job description, acknowledging his

agreement to follow guidelines established by Langer with respect

to time limits for cases to be completed, frequency of

submissions of completed work to the office, quality of work,

charges to the customer, communication with Langer, status or

progress reports, submission of itineraries, and closing cases.

Petitioner testified that he was not very good about complying

with his obligations under the agreement to communicate with

Langer.   Nonetheless, we conclude that Langer exercised, or had

the right to exercise, control over petitioner in the performance

of his services for Langer.

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

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

     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 testified that he had to provide his own Internet

service and that he worked out of his home, incurring office

expenses.   He acknowledged that he was offered hotel, meal, and

vehicle mileage reimbursement and that he was reimbursed for some

trip expenses during 2006.   He was paid on an hourly basis, and

his pay was subject to increase or decrease depending on Langer’s

assessment of his performance.    There is no indication that he

had an opportunity for profit or risk of loss from his

activities.   On balance, none of these factors supports a

conclusion that petitioner was an independent contractor.
                                 - 9 -

     Where the principal retains the right to discharge a worker,

it is indicative of an employer-employee relationship.    See

Colvin v. Commissioner, supra.    Petitioner testified that the

relationship could have been terminated at any time.

     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.

Petitioner’s auditing services were, so far as the record

reflects, the type of services that Langer’s business provided.

     Permanency of a working relationship is indicative of common

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

Petitioner worked for Langer 3 years before and 3 years after the

year in issue.   The lengthy working relationship between

petitioner and Langer weighs in favor of petitioner’s being a

common law employee.

     Langer obviously considered petitioner a common law

employee.   The written agreement is unambiguous in describing the

relationship as that of employer/employee, and Langer provided

petitioner a Form W-2, Wage and Tax Statement, for 2006 and

withheld Federal and State income taxes and Social Security and

Medicare taxes from petitioner’s pay.    See Packard v.

Commissioner, 63 T.C. 621, 632 (1975).   Petitioner testified that

he did not object to withholding from his compensation and agreed

to Langer’s payroll practices after he was advised that Langer’s
                             - 10 -

accountant had advised employee treatment.   He acknowledged that

“They never changed the employer-employee records for me”, even

though he asserted that other auditors were treated as

independent contractors before and after he was hired.

Unfortunately for petitioner, the most persuasive evidence in

this record is the documentation, including the job description

that he signed and the tax reporting by Langer.    That evidence

leads to the conclusion that petitioner was an employee.

     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 admits that those

benefits were available to employees who worked extra hours, but

he denies that he ever received any of those benefits.   The

availability of the benefits suggests employee status, but

whether or not they were actually paid is not determinative here.

     Considering the record and weighing the factors, we conclude

that petitioner was a common law employee of Langer in 2006 and

he was not entitled to claim deductible expenses on Schedule C.

     To reflect the foregoing,


                                        Decision will be entered

                                 for respondent.
