The opinion of the court was delivered by: WATSON
Plaintiff brought this action to recover taxes which, he alleges, were paid erroneously on the earnings of various workers under the Federal Insurance Contributions Act, Title 26 U.S.C.A. § 1400 et seq., and the Federal Unemployment Tax Act, Title 26 U.S.C.A. § 1600 et seq. Plaintiff contends that the taxes were paid because he believed, at the time of payment, that various workmen were 'employees' within the definitions contained in the above-mentioned Acts.
The case was heard by the Court sitting without a jury.
1. Plaintiff is an individual doing business at Glenside, Pennsylvania, and was such at the time the taxes in question were paid.
2. During the periods from September 30, 1948, to June 30, 1952, plaintiff was engaged in the business of home repairs which, in the main, consisted of selling and applying various types of roofing and siding materials.
3. Sales of plaintiff's materials and services were procured by salesmen who were recruited generally through newspaper advertisements.
4. Plaintiff provided office space and other facilities for the salesmen including stationery, telephones and secretarial. service.
5. The compensation of the salesmen consisted wholly of commissions which were based upon a percentage of their sales. The salesmen were permitted to draw against anticipated commissions and the amount of the draw was deducted from their commissions.
6. There were no written contracts of employment between plaintiff and salesmen and plaintiff could discharge them at will.
7. Salesmen were supplied with price lists of labor and materials and, when necessary to meet competition, were allowed to vary these prices within limits fixed by plaintiff.
8. Plaintiff approved each agreement of sale before construction or repairs commenced.
9. Salesmen were allowed to arrange their own work schedules without interference from plaintiff.
10. Plaintiff was primarily concerned with the procurement of sales and he allowed the salesmen to exercise their discretion as to the manner in which sales might best be made.
11. The actual construction work was performed by applicators who were paid by plaintiff on a 'per square' basis. Each square consisted of ...