The case at bar is to be distinguished from the case of Levin v. Manning, supra. In that case construction contractors submitted bids for work which, when accepted, became the contract price. The contractors hired and paid for their own helpers, and the taxpayer had no control over the selection, dismissal or compensation of those helpers the contractors hired. No transportation was furnished by the taxpayer, there were no set times for the contractors to be on the job, the contractors furnished their own tools and were allowed to and did work for others than the taxpayer. With the exception of paint, however, plaintiffs furnished the materials to be used in performing the work.
In the case at bar the workers were not hired as possessed of a certain skill in their craft. They came to the plaintiff inexperienced, untrained, and unskilled. Working under the guidance and direction of Goodman they acquired a certain facility in their work. Moreover, the workers followed no independent trade, business or profession, nor offered their services to the public. Their work was exclusively for the plaintiff over an extended period of time.
Hammerstrom v. United States, D.C.S.D.Fla., decided February 14, 1955, is similar to the factual situation at bar. Workers did flooring and acoustical ceiling work for the plaintiff taxpayer. When a job was ready, the company issued a work ticket to the mechanic assigned to the job, who would then see what materials and tools were necessary. He would take these from the company warehouse, load them onto his truck and go to the job site. The company had the authority to control the men and could withdraw them from the job and assign them to another. From this evidence the court determined that they were employees and not independent contractors. It recognized the power of control inherent in the continuity of the method of giving out the work tickets, and the right to withhold further tickets from the worker.
In the instant case the workers, while liable for results, could still be withdrawn from a job at any time. Moreover, they would consult with the president of the plaintiff corporation, Morris Goodman, when a problem arose from a particular job, or if the work was complicated. They acquired their skills only after training by Goodman and their fellow workers. Remuneration was on an hourly basis as determined by a time clock. Goodman assigned the workers to each job and could dismiss any or all of them at any time.
All of these factors indicate control not only of results but of the job itself.
None of the cases cited by the plaintiff is deemed by the court to be pertinent. In two of the more recent cases cited by the plaintiff Silver v. United States, D.C.N.D.N.Y., 131 F.Supp. 209, and Metropolitan Roofing & Modernizing Co. v. United States, D.C.Mass., 125 F.Supp. 670, a relatively complete amount of independence was exercised by the workers as to the details of their work.
The facts here in issue reveal no such freedom or independence. Cf. New Deal Cab Co. v. Fahs, 5 Cir., 174 F.2d 318.
Conclusions of Law
1. This court has jurisdiction of the parties and of this action. See 28 U.S.C.A. § 1340.
2. The persons in question were employees and not independent contractors within the meaning of § 1426(d) and § 1607(i) of Title 26.
3. The taxpayer is not entitled to recover the taxes paid by reason of the employment of the insulators and carpenters.
4. The costs of this action should be taxed by the clerk against the plaintiff.
Let an order in conformity with these findings and conclusions be submitted.
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