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MILLARD'S INC. v. UNITED STATES

November 27, 1956

MILLARD'S Incorporated, Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: HARTSHORNE

This is an action for the recovery of Federal insurance contributions taxes for the taxable period June 30, 1948, through June 30, 1950, in an amount to be computed by the parties and incorporated in the judgment to be filed herein.

The taxes in question are taxes paid to the United States on the earnings of certain workers called 'applicators' under the Federal Insurance Contributions Act, 26 U.S.C.A. (I.R.C.1939) § 1400 et seq.

 Testimony relating to this claim was heard by the Court sitting without a jury on October 1, 1956.

 Findings of Fact

 1. The plaintiff is a corporation, organized under the laws of the State of New Jersey and during the period in issue did business in the State of New Jersey.

 2. The plaintiff corporation was engaged in the business of applying roofing and siding to the roofs and sidewalls of houses and buildings in need of repair.

 3. Contracts for the performance of this work were solicited by salesmen from owners of property. These contracts were in writing and provided a unit price for the materials and labor necessary to perform the repair and improvement which was described in general terms.

 4. The salesmen referred to were determined by the defendant administratively to have been independent contractors. The taxes with reference to their earnings are not in issue.

 5. The applicators were persons who performed the labor of affixing the roofing and siding materials to the roofs and sidewalls of the structures described in the contract with the customer.

 6. The applicators involved were men long experienced in the work involved.

 7. When a job was ready, the applicators would come to plaintiff's office and were handed a work sheet which contained the name and address of the customer where the work was to be performed and a general statement of the nature of the work to be done. Few measurements were on the worksheet, but the applicators were advised as to the approximate number of squares (100 square feet) of materials to be applied.

 8. No writing was executed between the applicators and the plaintiff concerning their arrangement. With the exception of the worksheet, the arrangement between them was entirely oral.

 9. The parties understood that payment was to be made by plaintiff upon a unit price for each square of material applied, and that compensation would be paid upon satisfactory completion of the job. In the meantime, the applicators could draw a partial payment each week for the work done on the job still to be finished. This payment was based on their own statement as to how many squares they had applied during the week. If the job called for 10 squares and only 8 were applied, the applicator would be compensated for 10 squares. No time was agreed upon or discussed within which the applicators would start or complete the work.

 10. Certain jobs requiring carpentry work, which could not be compensated on a per square basis were made the subject of negotiation between the applicators and the plaintiff and a price for such work was then agreed upon in ...


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