other contractors operating in plaintiff's field.
18. There was no continuity of employment between plaintiff and applicators: each project was a separate and distinct undertaking on the part of each.
19. The employee-employer relationship did not exist between plaintiff and the salesmen.
20. The employee-employer relationship did not exist between plaintiff and the applicators.
21. Facts found in the discussion which follows herein.
This action was brought to recover taxes paid on the earnings of certain workers who, plaintiff alleges, were independent contractors and not employees. Should the workers be independent contractors, it is clear that they are without the contemplation of the Acts under which these taxes were paid, and plaintiff would be entitled to a refund of these taxes.
The distinction between an independent contractor and an employee, for the purpose of these Acts, has not always been clear. However, in United States v. Silk, 331 U.S. 704, 67 S. Ct. 1463, 91 L. Ed. 1757, and Harrison v. Greyvan Lines, Inc., 331 U.S. 704, 67 S. Ct. 1463, 91 L. Ed. 1757, the United States Supreme Court removed much of the confusion which had existed in the law relating to this problem. Following these decisions came a Senate Report which, after adoption, further clarified the issue and, thereafter, the common law rules were used to determine whether an individual was an employee or an independent contractor for purposes of applying the Social Security Act, 42 U.S.C.A. § 301 et seq.
The common law rule provided that when the person for whom services are rendered has the right to control and direct the individual who renders the services, not only as to the result desired but also as to the details and means by which the desired result is accomplished, then an employee-employer relationship exists. It follows that where such control does not exist the employee-employer relationship does not exist and the statutes which outline the duties of employers with regard to the payment of taxes, such as these with which we are here concerned, do not apply to the person for whom the services are rendered.
In Radio City Music Hall Corp. v. United States, 2 Cir., 135 F.2d 715, 717, the Court said that 'The test lies in the degree to which the principal may intervene to control the details of the agent's performance * * *.' Accordingly, the facts of each case must be examined in the light of this statement. In the instant case we must conclude, after careful examination of the evidence and testimony, that neither the salesmen nor the applicators were subject to such a degree of control by plaintiff in the details of the performance of their work so as to bring them withn the employee category. The salesmen were free to conduct their operations as they saw fit subject only to plaintiff's final approval. A similar situation existed between plaintiff and the applicators. The applicators were skilled in the application of roofing and siding materials and the Court is compelled to conclude that plaintiff's right to control did not extend to the details and means by which the applicators performed their duties, but that his right to control extended only to the result.
Therefore, the Court finds that neither the salesmen nor the applicators were employees and that plaintiff should be entitled to a refund of the taxes erroneously paid.
Conclusions of Law
1. This Court has jurisdiction over the subject matter and the parties.
2. Neither the salesmen nor the applicators, upon whose earnings the plaintiff paid federal insurance contribution taxes and federal unemployment taxes, were employees within the meaning of the term 'employee' as defined in Sections 1426(d) and 1607(i) of Title 26 U.S.C.A.
3. The plaintiff, henry T. Zipley, is entitled to recover the taxes erroneously paid and collected.
4. Judgment will be entered in favor of the plaintiff and against the defendant.