1936 BTA LEXIS 602 | B.T.A. | 1936
Lead Opinion
The main issue here is whether the compensation received by the petitioner, Frank W. Darling, from the Westchester County Park Commission is exempt from Federal taxation. Since Mrs. Darling had no income in 1932 she is not liable for any tax in that year, although a joint return for husband and wife was filed. Cole v. Commissioner, 81 Fed. (2d) 485, reversing 29 B. T. A. 602.
We do not think that petitioner can be classed as an employee of the state, but was rather an independent contractor. Metcalf & Eddy v. Mitchell, 269 U. S. 514. His compensation, his term of service, and certain of his rights and duties were fixed by contract with the park commission. This is not common in the employer-employee relationship, and points definitely toward the contractor status. Cf. Burnet v. Jones, 50 Fed. (2d) 14; Roberts v. Commissioner, 44 Fed. (2d) 168; A. Ten Eyck Brown, 19 B. T. A. 568; aff'd., 55 Fed. (2d) 1076; H. A. Underwood, 20 B. T. A. 1117; aff'd., 56 Fed. (2d) 67. The fact that the petitioner was to receive a percentage share in the proceeds of successful operation also indicates that he must be considered an independent contractor. Apparently, one of the objects of the contract between the petitioner and the park commission was to attain the independent contractor status in order that the park employees would be free from blew York State civil service regulations. The very nature of petitioner’s work as resident manager of an amusement park, we think, would preclude the detailed supervision by the employer which is necessary to the employer and employee relation. Commissioner v. Modjeski, 75 Fed. (2d) 468; Kreipke v. Commissioner, 32 Fed. (2d) 594; Burnet v. McDonough, 46 Fed. (2d) 944; Childers v. Commissioner, 80 Fed. (2d) 27. We hold the petitioner to be an independent contractor.
Furthermore, the operation of an amusement park is not a usual, traditional, or essential function of government. Helvering v. Powers, 293 U. S. 214; United States v. California, 297 U. S. 175; Flint v. Stone-Tracy Co., 220 U. S. 107; Brush v. Commissioner, 85 Fed. (2d) 32. We take judicial notice that it is a function not commonly performed by governments either contemporaneously or historically. It is obvious that such á governmental enter
Reviewed by the Board.
Decision will he entered v/nder Bule 50.