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LEVIN v. MANNING

November 26, 1952

Maurice LEVIN, Lillian Levin and Frances Levin, copartners trading as Crestview, Plaintiffs,
v.
John E. MANNING, Collector of Internal Revenue, Defendant. Maurice LEVIN, Lillian Levin, Martin Levin and Ruth L. Sagner, copartners trading as Brookdale Homes, Plaintiffs, v. John E. MANNING, Collector of Internal Revenue, Defendant. BROOKDALE HOMES, Inc., a corporation of New Jersey, in dissolution, and Maurice Levin, Lillian Levin and Martin Levin, as Trustees in dissolution thereof, Plaintiffs, v. John E. MANNING, Collector of Internal Revenue, Defendant



The opinion of the court was delivered by: MEANEY

These actions were instituted for the recovery of social security taxes in the amount of $ 15,231.98. Said taxes were assessed and collected for the period commencing January 1, 1937, and ending December 31, 1943. The Collector based his action on the Federal Insurance Contributions Act, 26 U.S.C.A. § 1400 et seq. and the Federal Unemployment Tax Act, 26 U.S.C.A. § 1600 et seq. Plaintiff-taxpayers allege that the assessments which formed the basis for the collections were erroneously made.

By consent of the parties the actions were consolidated and trial was held by the Court sitting without a jury.

 1. Plaintiff-taxpayers have been engaged in the business of constructing houses for public sale, and were so engaged during the taxable years in question.

 2. For the performance of rough work, cleaning up, unloading materials and the like, plaintiffs employed ordinary laborers by the hour, day or week.

 3. Social security taxes were paid by plaintiffs on these persons, and this action is not in issue here.

 4. With regard to the actual construction work, that is, framing, roofing, plumbing, plastering and the like, various men possessed of a certain degree of skill in these callings were given the opportunity to submit bids.

 5. These bids, when accepted, became the contract price. Said price would either be for an individual unit or for a group of units.

 6. The contract price was paid to the individual contractor or to the partnership, as the case might be.

 7. Where an individual contractor employed others, he paid their salaries from the lump sum payment he had received.

 8. The contract price did not vary with the length of time taken to complete the work.

 9. With the exception of paint, plaintiffs furnished the materials to be used in performing the work.

 10. The tools and equipment used by the alleged contractors were their own.

 11. There were no set times for the contractors to be on the job, nor was there any transportation ...


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