                        T.C. Memo. 2003-179



                      UNITED STATES TAX COURT



                DAMON C. CICCIARI, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9897-01.                Filed June 18, 2003.


     Damon C. Cicciari, pro se.

     Lorianne Masano, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     FOLEY, Judge:   By notice of deficiency dated May 11, 2001,

respondent determined an $891 deficiency relating to petitioner’s

1998 Federal income taxes.   The sole issue for decision is
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whether petitioner is liable, pursuant to section 1401,1 for

self-employment tax.

                          FINDINGS OF FACT

     In 1998, petitioner was a full-time police officer for the

Tallahassee Police Department (TPD).    During off-duty hours,

petitioner provided security services to Sprint United Management

Company, Moon Management, Inc., Tallahassee Mall Partners, Ltd.,

and Florida Institute of CPAs (off-duty employers).    Each off-

duty employer decided when to hire petitioner, paid him to patrol

its premises to prevent disturbances and criminal activity, and

set his work schedule.

     TPD required petitioner to obtain its permission prior to

accepting off-duty assignments.    In addition, TPD determined

petitioner’s off-duty minimum pay rate, required him to wear his

uniform when working off-duty security assignments, prohibited

him from performing activities that were outside the scope of his

law enforcement functions, and required him to monitor his police

radio.   TPD required petitioner to respond to criminal activity

at his off-duty site as if he were on-duty.    When responding to

such incidents, petitioner was required to take direction from

police supervisors.    On occasion, TPD required petitioner to

leave his off-duty assignment to respond to certain high priority


     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue.
                               - 3 -

calls.   If petitioner returned within a short time, the off-duty

employer would pay petitioner for his entire scheduled shift.      In

the event that he could not return, he would immediately notify

the off-duty employer.   Each such employer paid petitioner

directly and issued a Form 1099-MISC, Miscellaneous Income.    TPD

did not consider petitioner on-duty while working off-duty

assignments and did not pay him overtime.       On his timely filed

1998 Federal income tax return, petitioner reported $39,487 in

wages (i.e., $32,089 from TPD and $7,398 from off-duty

assignments).   On May 11, 2001, respondent reclassified the

$7,398 as self-employment income and determined an $891

deficiency.

     On August 8, 2001, petitioner, while residing in Tampa,

Florida, filed his petition with the Court.

                              OPINION

     Petitioner’s only contention is that he was an employee of

TPD while working off-duty assignments.   Section 1401 imposes a

tax upon a taxpayer’s self-employment income.    Self-employment

income consists of gross income derived by an individual from any

trade or business carried on by such individual.    Sec. 1402(a).

The self-employment tax, however, does not apply to compensation

paid to an employee.   Sec. 1402(c)(2).

     Section 3121(d)(2) defines an employee as “any individual

who, under the usual common law rules applicable in determining
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the employer-employee relationship, has the status of an

employee”.    That definition is made applicable for self-

employment tax purposes by section 1402(d).    Whether an

individual is an employee or an independent contractor is a

question of fact determined by application of common law

principles.    Hosp. Res. Pers., Inc. v. United States, 68 F.3d

421, 424 (11th Cir. 1995) (stating that common law rules serve as

the basis for classifying workers as employees or independent

contractors); Weber v. Commissioner, 103 T.C. 378 (1994), affd.

60 F.3d 1104 (4th Cir. 1995); sec. 31.3401(c)-1(b), (d),

Employment Tax Regs.    The Court may consider various factors in

determining the relationship between the parties.    See Clackamas

Gastroenterology Associates, P.C. v. Wells, 536 U.S. __, 123 S.

Ct. 1673 (April 22, 2003); Weber v. Commissioner, supra at 387.

No one factor, however, is controlling.    Weber v. Commissioner,

supra.   After considering these factors, we conclude that

petitioner was not an employee of TPD but performed his off-duty

security services as an independent contractor.

     First, petitioner was not an employee of TPD while working

off-duty assignments because TPD did not control petitioner’s

off-duty employment activities.    TPD’s control over petitioner’s

conduct relating to off-duty security services (e.g., requiring

officers to obtain approval prior to accepting off-duty jobs,

imposing a minimum pay rate, and requiring officers to respond to
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certain high priority calls) is incidental and related only to

the on-duty, rather than the off-duty, employment relationship.

Milian v. Commissioner, T.C. Memo. 1999-366; Kaiser v.

Commissioner, T.C. Memo. 1996-526, affd. without published

opinion 132 F.3d 1457 (5th Cir. 1997); March v. Commissioner,

T.C. Memo. 1981-339.   Moreover, we reject petitioner’s contention

that the off-duty employers indirectly paid him on behalf of TPD

when he responded to certain high priority calls.    We recognize

that petitioner was on-call during off-duty hours.   There is no

evidence, however, that TPD had any agreement with the off-duty

employers or required them to continue paying petitioner on

behalf of TPD.

     Second, the off-duty employers operated separately from TPD.

See March v. Commissioner, supra (stating that the source and

method of payment are also factors in establishing whether an

employee-employer relationship existed).   Petitioner was paid

directly by each off-duty employer, and his earnings were not

reported to TPD.   Each off-duty employer treated petitioner as an

independent contractor and issued Forms 1099-MISC, Miscellaneous

Income.

     Third, petitioner’s off-duty services were performed for,

and were directly beneficial to, the off-duty employer.    Milian

v. Commissioner, supra (stating that performance of services by

the employee for the employer is implicit in an employment
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relationship); March v. Commissioner, supra.        Any benefit TPD

received by an increased police presence at petitioner’s off-duty

assignments was incidental and similar in nature to the benefit

to a police department when officers increase the police presence

in a community by driving their police cruisers home.        Milian v.

Commissioner, supra; March v. Commissioner, supra.

     Finally, the off-duty employers had the ability to select

and the power to discharge at will.       Milian v. Commissioner,

supra; March v. Commissioner, supra.

     Although there may be some facts that point to an employee-

employer relationship (e.g., minimum pay rates and the

requirement that officers respond to certain high priority calls)

between petitioner and TPD, when taken as a whole the facts

establish that petitioner was self-employed.       Accordingly, we

hold that the earnings in dispute are earnings from

self-employment, subject to the tax imposed by section 1401.

     Contentions we have not addressed are irrelevant, moot, or

meritless.

     To reflect the foregoing,



                                              Decision will be entered

                                         for respondent.
