The opinion of the court was delivered by: BARD
This is an action for refund of social security taxes paid by the plaintiff. I make the following special
1. The plaintiff is a Pennsylvania corporation operating a restaurant at Merion, Pennsylvania.
2. The defendant is the duly appointed and acting Collector of Internal Revenue of the United States for the First Collection District of Pennsylvania.
4. The first of these orchestras was engaged by the plaintiff in March of 1937 by an oral contract with one Frank Roberts, a drummer, whereby he agreed to assemble an orchestra of four musicians, including himself, to play under his leadership.
5. Under the arrangement between Roberts and the plaintiff the orchestra was to play five nights a week for the weeklu sum of $106.25.
6. No definite term of engagement was fixed, and the plaintiff could reduce the number of performances per week or terminate the engagement at will.
7. Prior to the engagement Roberts had no orchestra and the musicians he assembled for this engagement were assembled by him for that purpose only.
8. In November of 1937 the engagement was terminated, the orchestra disbanded, and Roberts accepted employment as a "side man" in another orchestra.
9. In May of 1938 plaintiff entered into a similar arrangement with one DeWilliams, who had been a pianist in the orchestra assembled by Roberts, whereby DeWilliams agreed to assemble an orchestra of four musicians, including himself, under substantially similar terms.
10. The orchestra assembled by DeWilliams, of which he was the leader and Roberts was a side man, played at the establishment of the plaintiff until May of 1940.
11. In May of 1940 plaintiff entered into a similar arrangement with Roberts, by which he would assemble an orchestra to play under his ...