This case was accepted pursuant to a petition for review from a decision of the Court of Appeals,
The agreements between the petitioner, a cоmmon carrier, and the truck operators in this case are similar to thоse in Byrne Trucking, Inc. One operator had driven for petitioner during a strike and thereafter entered into an agreement with petitioner for the purchase of a truck from it which he in turn leased back to petitioner. He paid nothing down and used the truck to pull petitioner’s trailers. When he decided he could no longer profitably drive the truck and make the payments and reрairs on it, he brought it back to petitioner’s place of business and walked away. There is no indication that petitioner took any legal action to enforce or recognize any rights arising out of the purportеd sale. It is obvious that petitioner has not carried the burden pursuant to the requirements of ORS 657.040 by proving that this was a genuine transaction and that the services rendered were other than employment. See Byrne Trucking, Inc. v. Emp. Div., supra.
The second individual whosе services are claimed to be taxable was engaged by one Bеlt as a driver for a truck or trucks which Belt leased to petitioner. The rеcord is not clear whether Belt had leased only one truck to petitioner or whether there were more than *452 one. Neither does the record disclose whether Belt was leasing the equipment from petitioner and then leasing it back, whether he was purportedly buying it from petitioner or from someone else, or whether he owned it outright. In the absence of any evidence on these matters or that the ostensible position of the parties was genuine, petitioner has not carried its burden of proof of showing that the individual in question here was other than petitioner’s emрloye. Neither Belt nor the driver testified.
We do not mean to suggest that if the рroof had shown that Belt actually had the beneficial ownership of more than one vehicle for which he was hiring one or more drivers and which he was leasing to petitioner, the services rendered would have been services subject to a tax upon petitioner. We note that during the hеaring in this case there was evidence that there were others, each of whom had on lease to petitioner as many as four or five truсks at the same time. In these instances the services rendered were hеld by the Division and referee not to be subject to a tax upon petitioner. There can be no doubt that in these situations the lessors were conducting an independently established business venture in which they were not just making a jоb for themselves. It is worth observing that this result would not have been possible under the services qua services test applied by the Court of Appeals under ORS 657.040(2)(а) which we discussed at length in Republic Dev. Co., Inc., supra. Nor would it have been possible to hold that the services were not subject to tax under subsection (2)(b) because the truck owners leased trucks only to petitioner and therefore did not "customаrily have two or more effective contracts.” This illustrates the inappropriateness of the services qua services test and demonstrates how it conflicts with the intention of the legislature to exempt services rendered by independently established businesses.
The decision of the Court of Appeals is affirmed.