                         T.C. Memo. 2007-249



                       UNITED STATES TAX COURT



               URIAH VINCENT JONES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18719-05.              Filed August 27, 2007.



     Uriah Vincent Jones, pro se.

     Ladd C. Brown, Jr., for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:    Respondent determined a deficiency of

$2,274 in petitioner’s Federal income tax for 2003.    After

concessions by petitioner, the issue for decision is whether

petitioner is liable for self-employment tax.    This turns on

whether petitioner was an employee or independent contractor of

DBMA Corporation (DBMA) during 2003.
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                          FINDINGS OF FACT

     Some facts are stipulated and are so found.     The stipulated

facts and the exhibits submitted therewith are incorporated

herein by this reference.   At the time he filed the petition,

petitioner resided in Palm Beach Gardens, Florida.

     From August through December 2003, petitioner, a marble and

tile installer, worked on a condominium renovation for DBMA.

Barry Shapiro (Mr. Shapiro), president of DBMA, hired petitioner

to work on the condominium renovation.

     Petitioner submitted a series of proposals to Mr. Shapiro

describing the work petitioner was to perform on the condominium

renovation.   Mr. Shapiro contracted petitioner to perform the

tile work on the condominium renovation.     In August 2003,

petitioner began work by honing the floors and showers of the

condominium and taking other preparatory steps in order to

complete his work.   From August through December 2003, petitioner

worked a total of approximately 16 days on the condominium

renovation.

     DBMA paid petitioner a fixed sum for his work on the

condominium renovation.   If petitioner needed any additional

assistants, petitioner was responsible for hiring, paying, and

supervising them.

     While working on the condominium renovation, petitioner

provided his own work tools.   In addition to work tools,
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petitioner also supplied grout, cork, cork glue, and

soundproofing materials.   Mr. Shapiro supplied the tile.   DBMA

did not reimburse petitioner for the supplies he purchased

because these amounts were incorporated into petitioner’s

proposal.

     Initially, petitioner set his own hours of work on the

condominium renovation.    A dispute arose between petitioner and

Mr. Shapiro regarding the hours petitioner worked.   After this

dispute, petitioner agreed to maintain a fixed work schedule of

10:30 a.m. to 4:30 p.m. when working on the condominium

renovation.

     DBMA paid petitioner $8,360 for his work on the condominium

renovation.   At no point did petitioner ever sign or submit a

Form W-4, Employee’s Withholding Allowance Certificate

(Form W-4).   After petitioner completed work on the condominium

renovation, Mr. Shapiro did not engage the services of petitioner

on other jobs.   In 2003, petitioner worked for three other

companies that treated him as an employee, and all three

companies issued him Forms W-2, Wage and Tax Statement

(Forms W-2), as opposed to Forms 1099-MISC, Miscellaneous Income

(Forms 1099-MISC).

     Petitioner timely filed a Form 1040EZ, Income Tax Return for

Single and Joint Filers With No Dependents, for 2003.    Petitioner

conceded that he did not report the income he received from DBMA
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on his 2003 tax return.   After filing his 2003 income tax return,

petitioner received a Form 1099-MISC, from DBMA.    Petitioner did

not amend his 2003 tax return after receiving the Form 1099-MISC.

     Respondent timely mailed a notice of deficiency to

petitioner with respect to taxable year 2003, and petitioner

timely petitioned the Court.

                               OPINION

     The burden of proof is on petitioner to show that

respondent’s determination set forth in the notice of deficiency

is incorrect.   Rule 142(a)(1);1 Welch v. Helvering, 290 U.S. 111,

115 (1933).   Petitioner has neither claimed nor shown that he

satisfied the requirements of section 7491(a) to shift the burden

of proof to respondent with regard to any factual issue.

Accordingly, petitioner bears the burden of proof.    Rule 142(a).

     The Federal Insurance Contributions Act (FICA), secs. 3101-

3125, 68A Stat. 415 (1954), taxes a portion of the wages paid to

an employee (FICA tax).   The portion of the wages taxed is

defined in section 3121(a).    Under FICA, the employer and the

employee each pay a like amount of tax.    See secs. 3101, 3111.

The employer withholds the employee’s half of the FICA tax and

remits it, along with the employer’s half, to the Department of



     1
        Unless otherwise indicated, all Rule references are to
the Tax Court Rules of Practice and Procedure, and all section
references are to the Internal Revenue Code in effect for the
year in issue.
                                 - 5 -

the Treasury.   See sec. 3102.   The FICA tax has two components,

the old age, survivors, and disability insurance portion (OASDI)

and the hospital insurance portion.      For the year in issue, the

OASDI rate was 6.2 percent for both the employer and employee, a

total of 12.4 percent.   The hospital insurance portion was 1.45

percent for both the employer and the employee, a total of 2.9

percent.   The combined rate of the FICA tax was 15.3 percent for

2003.   DBMA did not withhold any FICA tax because it treated

petitioner as an independent contractor.

     Independent contractors are not subject to the FICA tax;

however, they are subject to a tax under chapter 2 of the Code,

the Self-Employment Contributions Act of 1954 (SECA), secs. 1401-

1403.   See secs. 1401 and 1402.   The SECA tax is a different tax

from the FICA tax, though the SECA tax contains the same two

components as the FICA tax.   The SECA rate is equal to the sum of

the employer and employee tax rates under FICA.

     For the purposes of FICA, an employee is defined as:     (1)

any officer of a corporation; (2) any common law employee; (3)

any individual in a specified occupation group who is not a

common law employee; and (4) any individual who performs services

that are included under an agreement entered into pursuant to the

Social Security Act, 42 U.S.C. sec. 218 (2000).     Sec. 3121(d).
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     A common law employee-employer relationship exists when:

     the person for whom the services are performed has the
     right to control and direct the individual who performs
     the services, not only as to the result to be
     accomplished by the work but also as to the details and
     means by which that result is accomplished. That is,
     an employee is subject to the will and control of the
     employer not only as to what shall be done but how it
     shall be done. In this connection, it is not necessary
     that the employer actually direct or control the manner
     in which services are performed; it is sufficient if he
     has the right to do so. The right to discharge is also
     an important factor indicating that the person
     possessing that right is an employer. Other factors
     characteristic of an employer, but not necessarily
     present in every case, are the furnishing of tools and
     the furnishing of a place to work, to the individual
     who performs the services. In general, if an
     individual is subject to the control or direction of
     another merely as to the result to be accomplished by
     the work and not as to the means and methods for
     accomplishing the result, he is an independent
     contractor. * * * [Sec. 31.3121(d)-1(c)(2), Employment
     Tax Regs.]

     Petitioner contends that he was a common law employee of

DBMA.   We consider the following factors to decide whether a

worker is a common law employee or an independent contractor:

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

party invests in work facilities used by the individual; (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; and (7) the relationship the parties believed

they were creating.   Weber v. Commissioner, 103 T.C. 378, 387

(1994), affd. per curiam 60 F.3d 1104 (4th Cir. 1995).   All the
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facts and circumstances of each case are considered, and no

single factor is dispositive.     Id.

     1.   Degree of Control

     The degree of control necessary to find employee status

varies with the nature of the services provided by the worker.

Id. at 388.    To retain the requisite control over the details of

an individual’s work, the principal need not stand over the

individual and direct every move made by the individual; it is

sufficient if he has the right to do so.     Id.; see sec.

31.3401(c)-1(b), Employment Tax Regs.

     Similarly, the employer need not set the employee’s hours or

supervise every detail of the work environment to control the

employee.     Gen. Inv. Corp. v. United States, 823 F.2d 337, 342

(9th Cir. 1987).    The fact that workers set their own hours does

not necessarily make them independent contractors.     Id.

     As the project manager, Mr. Shapiro did have some control

over petitioner.    For instance, after a dispute regarding the

hours petitioner kept, Mr. Shapiro and petitioner agreed that

petitioner would maintain a fixed work schedule.    Despite this,

petitioner was free to complete by the means and methods of his

choice, the work he was contracted to do.    Petitioner advised Mr.

Shapiro that the floor in the laundry room needed to be resloped.

Additionally, petitioner completed work offsite at his home
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workshop after advising Mr. Shapiro as to the best means and

method to complete the project.

     Based on the record before us, petitioner’s degree of

control over his own work on the condominium renovation is

consistent with independent contractor status.

     2.    Investment in Facilities

     The fact that a worker provides his or her own tools

generally indicates independent contractor status.     Breaux &

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

     Petitioner provided his own tools.     Furthermore, other than

the tile, petitioner supplied most of the supplies he used such

as grout, soundproofing materials, cork, and cork glue.

Additionally, petitioner was not reimbursed for the materials

that he provided.    These amounts were included in the proposals

that petitioner provided.

     Based on the record before us, this factor is consistent

with independent contractor status.

     3.    Opportunity for Profit or Loss

     As noted supra, petitioner sent proposals to Mr. Shapiro

regarding the work to be done on the condominium renovation.

DBMA paid petitioner a fixed sum regardless of the time spent on

the job.    If petitioner underestimated the cost of the supplies

needed or the time it took to complete the job, petitioner bore

the risk of losing money, not Mr. Shapiro.    Furthermore, if
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assistants were needed, it was petitioner’s sole responsibility

to hire and pay them.   Additionally, petitioner bore the risk of

loss on any loss or damage to his work tools.

     Based on the record before us, petitioner’s opportunity for

profit or loss on his work on the condominium renovation is

consistent with independent contractor status.

     4.   Right To Discharge

     Petitioner was never fired by Mr. Shapiro, but Mr. Shapiro

chose not to engage petitioner on any future projects.   It

appears that as long as petitioner’s work was quality work that

met the job specifications, petitioner could not have been

dismissed from his duties on the condominium renovation.

Petitioner phoned Mr. Shapiro approximately 3 weeks after

petitioner completed work on the condominium renovation.    At that

time, only after petitioner had finished his duties on the

condominium renovation, Mr. Shapiro notified petitioner that he

did not wish to work with petitioner on any other projects.

     Based on the record before us, the fact that petitioner

could not be discharged as long as his work met the

specifications is consistent with independent contractor status.

     5.   Integral Part of Business

     As the project manager on the condominium renovation, Mr.

Shapiro’s responsibilities included making sure that the work was
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completed.   The condominium renovation required tile work.

Accordingly petitioner’s job was an integral part of DBMA’s work.

     Based on the record before us, the integral nature of

petitioner’s work could suggest employee status.   This, however,

is but one factor that must be weighed among the others.

     6.   Permanency of the Relationship

     A transitory work relationship may point toward independent

contractor status.   Herman v. Express Sixty-Minutes Delivery

Serv., Inc., 161 F.3d 299, 305 (5th Cir. 1998).    If, however, the

worker works in the course of the employer’s trade or business,

the fact that he does not work regularly is not necessarily

significant.   Avis Rent A Car Sys., Inc. v. United States, 503

F.2d 423, 430 (2d Cir. 1974) (transients may be employees); Kelly

v. Commissioner, T.C. Memo. 1999-140 (working for a number of

employers during a tax year does not necessitate treatment as an

independent contractor).   In considering the permanency of the

relationship, we must also consider the principal’s right to

discharge the worker and the worker’s right to quit at any time.

     DBMA contracted petitioner to work on the condominium

renovation and paid petitioner for the job he performed,

regardless of the amount of time petitioner spent on the work.

Petitioner worked for approximately 16 days, from August through

December 2003, on the condominium renovation and received 14

checks from DBMA for his work.   Although petitioner stated that
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DBMA promised him more work, whether or not the relationship

continued was within the discretion of Mr. Shapiro.   Once DBMA

completed the condominium renovation, the relationship between

petitioner and DBMA ceased.

     Before petitioner began the condominium renovation, he was

an employee of Koeckritz Enterprises, Inc. (Koeckritz).   Prior to

working for Koeckritz, in 2003 petitioner also worked for Celtic

Marble & Tile, Inc., and Selective HR Solutions V, Inc.   During

2003, petitioner received a total of three Forms W-2 from the

three employers.   This, however, does not require us to conclude

that petitioner worked for DBMA as an employee.

     Based on the record before us, petitioner’s lack of a

permanent relationship with DBMA is consistent with independent

contractor status.

     7.   Relationship the Parties Thought They Created

     Petitioner has worked on tile and marble installation for

dozens of companies and stated that he always has been treated as

an employee by those other companies.   Mr. Shapiro stated that

DBMA never had any employees and always has treated the

individuals who worked for DBMA as independent contractors and

issued them Forms 1099-MISC.   Although the parties thought they

were creating different relationships, we note that petitioner

did not submit a Form W-4 to DBMA as he submitted to his three
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employers.   The record does not indicate that petitioner

requested or inquired about a Form W-4 from DBMA.

     Based on the record before us, the facts are consistent with

independent contractor status.

     8.   Conclusion

     In the matter before us, although one factor might indicate

an employer-employee relationship, the vast majority suggest that

petitioner was an independent contractor of DBMA.     Having weighed

the evidence and considered the totality of the circumstances, we

conclude that petitioner was an independent contractor of DBMA.

As a result, he is responsible for self-employment tax for 2003.

     In reaching our holding herein, we have considered all

arguments made by the parties, and to the extent not mentioned

above, we find them to be irrelevant or without merit.

     To reflect the foregoing,


                                         Decision will be entered

                                    for respondent.
