Edel v. Commissioner , 15 B.T.A. 768 ( 1929 )

ALBERT E. EDEL, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Edel v. Commissioner

Docket No. 28546.

United States Board of Tax Appeals

15 B.T.A. 768; 1929 BTA LEXIS 2795;

March 11, 1929, Promulgated

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Petitioner during the taxable years was an independent contractor and not an officer or employee of the State of New Jersey, or a subdivision thereof.

Homer D. Smith, Esq., for the petitioner.

Bruce A. Low, Esq., for the respondent.

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VAN FOSSAN

OPINION.

VAN FOSSAN: Petitioner is a toxicologist by profession, and during the taxable years 1922 and 1923, as to which respondent determined deficiencies in income taxes, was engaged principally in making tests for the presence of poisons and appearing as a witness in trials conducted by the county prosecutor of Essex County, New Jersey. The toxicological work was performed under oral appointments of the county health officer while the service as a witness was at the oral request of the county prosecutor. So far as the record shows for 1922 and 1923, the appointments were not for a fixed term or duration and the amount of work performed was dependent on the direction of the county health officer and the prosecutor. Compensation was reckoned on the basis of work performed as a toxicologist or appearances as an expert witness, and payment was from the public funds of the county.

Petitioner contends he was a county officer or employee and exempt from Federal taxation. The record fails to establish this contention. His position bore none of the indicia of office. The position was not of statutory creation; no oath of office was taken; he had no definite term; his compensation varied with the number of calls made for his services. Nor do we believe him to be an employee of the county within the meaning of the Act. Except for the designation of the subject to be worked on he was a free agent in his work, without supervision or control by any superior. He was paid for his expert services such sums as might be agreed upon in any case. His service, both as a toxicologist and as an expert witness, was that of an independent contractor. The finding of the respondent is affirmed.

Judgment will be entered for the respondent.