
    424 F. 2d 593
    BILLY G. POWERS, T/A POWERS ROOFING COMPANY v. THE UNITED STATES
    [No. 38-67.
    Decided April 17, 1970]
    
      
      Joseph J. Lyman, attorney of record, for plaintiff.
    
      Mark Segal, with whom was Assistant Attorney General J ohrmie M. Walters, for defendant.
    Before Cowen, Chief Judge, Lakamoee, Burpee, Davis, ColliNs, Skelton and Nichols, Judges.
    
   P®R Curiam :

This case was referred to Chief Trial Commissioner Marion T. Bennett with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 134(h). The commissioner has done so in an opinion and report filed on October 1, 1969. Defendant filed, then subsequently was allowed to withdraw, a notice of intention to except to the commissioner’s report. On March 11,1970, plaintiff filed a motion requesting that the court adopt the commissioner’s opinion, findings and recommended conclusion of law. Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby grants plaintiff’s motion and adopts the same as the basis for its judgment in this case without oral argument. Therefore, plaintiff is entitled to recover and judgment is entered for plaintiff with the amount of recovery to be determined pursuant to Rule 131 (c) (2).

OPINION OP COMMISSIONER

Bennett, Chief Commissioner: This is a suit to recover Federal Unemployment Tax Act (Futa) taxes of $1,579.90, together with statutory interest thereon, paid by plaintiff taxpayer for the year 1965. It is stipulated that the single issue presented is whether during the period involved, applicators performing services for plaintiff were “employees” of plaintiff within the meaning of the Federal Unemployment Tax Act, Internal Revenue Code of 1954, 26 U.S.C. § 3306 (i), and pertinent regulations.

Plaintiff’s business is that of repairing building exteriors needing roofing and siding. His commission salesmen obtain contracts for such work in Arkansas City, Kansas, and in a wide area out of that city. The workers who install roofing and siding are known in the trade as applicators. They are called by plaintiff or come to him on their own initiative in connection with work opportunities presented following storms and other circumstances. They are presented with a work order or worksheet describing the work to be done. They can take the work or leave it. If they don’t like the job or the price they can reject it or negotiate with plaintiff.

In addition to the work order, plaintiff presented to applicators a document variously called Rules and Regulations for Sub-Contractors or Specifications for Sub-Contractors. The information thereon was prepared by plaintiff and delineated the job relationship with plaintiff, the prime contractor. In summary, the applicators were required by these documents to do their work in a workmanlike manner and as quickly as possible, although it was left to them when they would start and what hours they would work. Plaintiff furnished the materials for the job but applicators furnished their own equipment (worth several hundred dollars) under the agreement; they were paid only after inspection showed the completed job to be satisfactory, and they forfeited the job if neglected or left so that it had to be finished by 'another.

In 1964 or 1965, applicators were expected to obtain a release from plaintiff before hiring out to one of plaintiff’s competitors for “side work” done in a storm or catastrophe area. Applicators were free to work for other contractors before or after working for plaintiff and this did not prejudice them for future jobs with plaintiff. Plaintiff had no preferred call on an applicator’s time except for the performance of an accepted work order nor did plaintiff guarantee applicators. any work. Applicators paid their own expenses of travel, food and lodging, but they could draw advances on sums due them for work already partially completed. Applicators working for plaintiff performed in plaintiff’s name on plaintiff’s contracts.

A percentage was withheld from the sum due applicators to cover insurance, if they did not provide their own, and to cover the contingency of leaks in completed work. The unused portion of the percentage was refundable. Verbal instructions sometimes supplemented the work order and the rules and specifications. The percentage arrangement was verbal.

Applicators were paid on the basis of a specified price per 100 square feet of material applied. Different rates applied to different types of materials. Extra pay was given for extra work such as removing an old roof.

The applicators sometimes employed helpers who were paid out of the lump sum due the applicator from plaintiff. The pay of helpers was fixed by the applicator. However, by request of an applicator plaintiff would pay the helpers by check, deducting the amount from the sum due the applicator. Plaintiff did not withhold or pay any taxes for helpers. Helpers were supervised by the applicators who hired them. Plaintiff supervised the work of applicators, if at all, in only a cursory manner. He relied upon their skill and experience and the satisfaction of the property owner with their work. The larger jobs were sometimes inspected during their progress. On one occasion where plaintiff observed that an applicator had disappeared from the job and his helper was working for a competitor of plaintiff in violation of the aforesaid rules, plaintiff terminated the subcontract.

Applicators would occasionally contract independently with the property owners for comparatively minor repair work, such as carpentry, not contemplated in the prime contract between plaintiff and the owner. Plaintiff had no objection to this. However, if the applicator learned of a roofing or siding job he was expected to turn the information in to the plaintiff’s office so that a salesman could attempt to get the contract. In turn, the applicator was normally offered the subcontract if the salesman was successful.

Plaintiff did not pay Unemployment Act taxes on these applicators, considering them to be independent subcontractors. He did so for the year 1965 only after being required to do so. This is plaintiff’s second round with the Internal Revenue Service. On March 27, 1958, the United States District Court for the District of Kansas, in the unreported case of Billy G. Powers, t/a Powers Roofing & Siding Co. v. United States, Civil No. W-1365, determined that applicators performing services for plaintiff in his business were not employees for federal tax purposes. Defendant now contends that the facts in 1965 are stronger for the Government’s position and that the applicators are employees within the terms of the law. A trial was held. Plaintiff and several applicators were heard, together with other witnesses. This case turns squarely on its facts and the weight of the credible evidence firmly establishes that the Government is wrong and that plaintiff is entitled to recover.

As previously noted, the sole issue for determination in this case is whether the applicators are “employees” as defined in applicable statutes and decisional law. The statutes define both what an employee is and what he is not. An employee is “any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee' * * * .” 26 U.S.C. § 8121(d) (2).

The term “employee” does not include

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(2) any individual (except an offer of a corporation) who is not an employee unders such common law rules. [26 U.S.C 3306(i).]

Both, sections direct attention outside of .themselves into the broader scope of “employee” as defined under the common law. Guidance to relevant criteria is found in the applicable Treasury regulation, which provides in pertinent part:

(b) Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for accomplishing the result, he is an independent contractor. An individual performing services as an independent contractor is not as to such services an employee * * *.
(c) 'Whether the relationship of employer and employee exists will in doubtful cases be determined upon an examination of the particular facts of each case.
(d) If the relationship of employer and employee exists, the designation or description of the relationship by the parties as anything other than that of employer and employee is immaterial. Thus, if such relationship exists, it is of no consequence that the employee is designated as a partner, coadventurer, agent, independent contractor or the like. [Treas. Beg. § 31.3306(i)-l(b)-(d) (1956).]

The latter statute and interpreting regulation represent congressional disapproval of the so-called “economic reality” test as a primary tool to determine the presence or absence of an employer-employee relationship. The test sprang from language used by the Supreme Court in United States v. Silk, 331 U.S. 704, 713 (1947), and Bartels v. Birmingham, 332 U.S. 126, 130 (1947), which was employed to support the proposition that, in addition to common law criteria, the definition of “employee” should be tailored to 'best accomplish the purposes of social security legislation. Enochs v. Williams Packing & Navigation Co., 370 U.S. 1, 3 (1962); see, Illinois Tri-Seal Products, Inc. v. United States, 173 Ct. Cl. 499, 512-19, 353 F. 2d 216, 224-29 (1965), providing a concise account of the development of the concept and its legislative rejection. Legislative rejection of the guideline based on “economic reality” left viable the “test” of realistically applying common law criteria concerning employer-employee relationships to the particularized and unique factual situations of the individual cases. Illinois Tri-Seal Products, Inc. v. United States, supra, 173 Ct. Cl. at 518, 353 F. 2d at 228; Enochs v. Williams Packing & Navigation Co., supra at 3.

Common law factors are not established in a hierarchical order with any one haying predominant importance. Bather, “* * * degrees of control, opportunities for profit and loss, investment in facilities, permanency of relation and skill required in the claimed independent operation are important for decision. No one is controlling nor is the list complete.” United States v. Silk, supra at 716. “It is the total situation that controls.” Bartels v. Birmingham, supra at 130.

As would be expected within this framework of broad guidelines, the finder of fact must accept the primary responsibility for applying relevant criteria on the basis of the total factual situation. Hoosier Home Improvement Co. v. United States, 350 F. 2d 640 (7th Cir. 1965) ; Ben v. United States, 241 F. 2d 127, 128 (2d Cir. 1957), aff'g per curiam 139 F. Supp. 883 (N.D.N.Y. 1956). While a combination of factors usually is determinative, a single factor — control exercised by an alleged “employer” over the individual whose “employee” status is in question — most often overrides other criteria for determining the presence or absence of an employer-employee relationship. This court has observed that “the generally accepted and fundamental test is whether there exists, on the part of the employer, control or a right to control the activities of the alleged employee not only as to the result to be accomplished, but also as to the manner and method of attaining the result.” Edwards v. United States, 144 Ct. Cl. 158, 162, 168 F. Supp. 955, 957 (1958). Cf. Illinois Tri-Seal Products, Inc. v. United States, supra, 173 Ct. Cl. at 510, 353 F. 2d at 223; Security Roofing & Constr. Co. v. United States, 163 F. Supp. 794 (D. Mass. 1958); Radio Oity Music Hall Corp. v. United States, 135 F. 2d 715, 717 (2d Cir. 1943). Such control may be exhibited in a number of ways depending upon the specific factual circumstances of the particular case. Detailed written instructions as to the manner of performance on a particular job, of course, would be strong evidence of the presence of control. The defendant here places great weight on the document variously entitled Bules and Regulations for Sub-Contractors or Specifications for SubContractors, considering it to 'be the single “most important [evidentiary] factor” present in the case. Such reliance is misplaced as the document in question did not provide specific instructions for particular applicator assignments, but, rather, defined in a manner more general than specific, the overall job relationship which would be agreed to by the plaintiff and an applicator.

The occasional presence of a representative of the plaintiff at the jobsite where an applicator is working, by itself is of no particular significance. “Some * * * supervision is inherent in any joint undertaking, and does not make the contributing contractors employees.” Radio City Music Hall Corp. v. United States, supra at 718.

On the other hand, the absence of supervision may be unimportant if the skill level required by the task is so low that supervision is unnecessary. Security Roofing & Constr. Co. v. United States, supra at 796. The latter caveat does not apply to the case at hand as the plaintiff relied upon expertise of the applicators whose skills were beyond those of unskilled workers performing repetitive tasks which would require no supervision. In the case at hand, the occasional presence at the worksite of a representative of the plaintiff was not, in practice or intent, to supervise and direct the applicators in the details of their performance. Rather, when a job was of more than 1 or 2 days’ duration, a company representative might inspect the jobsite in an effort to see if the work was progressing according to the work order and if sufficient materials were on hand for the job. If any doubt should arise as to the applicators conforming to the work order and contract, the homeowner would be contacted to insure that he was satisfied. There does not exist credible evidence supporting the contention that the plaintiff retained the right to supervise and direct the details of the applicators’ performance even though an occasion may not have arisen in which the plaintiff was required to exercise such supervisory power. In addition, when applicators performed jobs at some distance from Arkansas City, Kansas, there might be no supervision of any kind. In those locations, work orders would be given to an applicator by one of plaintiff’s salesmen who obtained contracts from customers. Subsequent communication between the plaintiff and the applicators regarding materials, payment, and other matters incidental to the wort, was by mail.

Plaintiff’s reliance on Hoosier Home Improvement Co. v. United States, supra, is inapposite. In that case the court specifically refused to challenge jury findings since the evidence was such that reasonable men could differ as to the conclusion which should flow from the particular facts. In addition, the controlling facts differed significantly from those at hand: Some applicators worked exclusively for the plaintiff roofing company; payment for some jobs was on an hourly basis; and, the president of the company appealed to applicators on the basis of “company loyalty.” As examples, these factors indicate an overall pattern of control far more pervasive than that encountered in the present case.

Of obvious importance to the determination of the presence or absence of an employer-employee relationship is the right of the “employer” to discharge the individual whose “employee” status is in question. The right need not be exercised, as its mere presence is sufficient to be an indicator of control. E. F. Williams Co. v. United States, 139 F. Supp. 875, 877-78 (N.D.N.Y. 1956). Defendant places great weight upon the fact that the plaintiff terminated the performance of one applicator before the job on which the applicator was working was finished, expanding this one instance into an alleged overall right of discharge. On balance, the record does not support either the factual contention of the defendant nor the conclusions sought to be drawn from it. In brief, the situation developed as follows: After beginning the job, the applicator in question got drunk, suffered an injury, and failed to show up for work. The applicator’s helper, who was both hired and supervised by the applicator, but who was known to the plaintiff, was observed working for one of plaintiff’s competitors, thus neglecting the job under the plaintiff’s contract. Quite reasonably, plaintiff considered the subcontract breached under paragraph 8 of the Rules and Regulations or Specifications for Sub-Contractors which read:

8. sub-coNTRactoe hekebx agreed, once he starts a. job he should complete that job as quickly as possible. Should he, through neglect or goofing off, leave his job open and it becomes necessary for the Company to get another contractor in order to get the job completed, the original sub-contractor shall forfeit all rights of faymeNt f or the j ob started.

As a consequence of the applicator’s -actions, the plaintiff terminated the services of the applicator and his helper. The applicator was paid for the work he had already completed but the job had to be finished by another. The plaintiff’s actions toward this applicator were not those of an employer discharging an employee. Father, they were a manifestation of the right of a general contractor to declare that his subcontract had been breached by the subcontractor. Jagolinzer v. United States, 150 F. Supp. 489,492 (D.E.I.1957); Silver v. United States, 131 F. Supp. 209, 212 (N.D.N.Y. 1954).

The belief of the parties as to the nature of their relationship may provide insights to its true nature. This court has said that “[i]n close oases * * * the view of their own relationship which is taken and acted upon by the parties — particularly with respect to the payment of employment taxes— is very significant.” Illinois Tri-Seal Products, Inc. v. United States, supra, 173 Ct. Cl. at 502, 353 F. 2d at 218. [Emphasis supplied.] But, as the pertinent regulation heretofore cited suggests in paragraph (d), what the parties say as to their relationship is immaterial if, in fact, it is something else. Most of the applicators called as witnesses indicated that they did not consider themselves to be in business for themselves during those times that they performed jobs for the plaintiff. Their testimony, beclouded by an aroma of hostility toward the plaintiff, arising from the withholding of a percentage of the subcontract payments to cover insurance and work defects, is not consistent with their actions. The only applicator so questioned disclosed that he paid income and social security taxes as a self-employed individual. The plaintiff did not consider the applicators to be employees and the evidence reveals that some of them received form 1099 at the end of the year 1965 disclosing the total compensation paid to them by the plaintiff during that year. Neither did the plaintiff consider himself obligated to withhold any of the compensation of the applicators for taxes or to file returns and pay taxes for them until audited and required to do so by the Internal Revenue Service.

In the same vein, the defendant emphasizes that the applicators did not work for other roofing companies during the time that they were performing jobs for the plaintiff, implying plaintiff’s control over, and preferred call upon, the time of the applicators. However, as the applicators performed the jobs alone, or in combination with no more than a few helpers, it is unlikely that they would have been able to deal adequately with more than one job at a time. And, despite their testimony, at least three applicators left jobs they were doing for the plaintiff before completion and without Obtaining releases. This action did not in fact bar them from obtaining subsequent jobs from the plaintiff. They also freely rejected work orders when offered them by the plaintiff, worked on their own account, and contracted their services to competitors of the plaintiff when not doing jobs for him. The plaintiff, however, did reasonably insist that when an applicator accepted one of his jobs that it be finished before the applicator worked for someone else. In sum, the weight of the credible evidence suggests that the overall pattern of the applicators’ actions indicated independence from the plaintiff and far overshadows the applicators’ contrary and limited view of their employment status.

When taken as part of the total situation, several other factors underscore the applicators’ independence: The applicators furnished and maintained their own tools and equipment, usually worth several hundred dollars, except on the rare occasion when the plaintiff would furnish a special piece of equipment or a truck. They provided their own transportation to and from the worksite and paid food and lodging-costs. They were also charged with the responsibility of hauling away debris from the worksite. Payment was usually at the completion of a job and there was no set pay day, but the applicators could draw advances on partially completed work. Additional pay would be negotiated for extra work of a substantial nature. If the homeowner desired minor repair work not contemplated in the contract or work order, the applicator could contract with ithe homeowner in his own name for the performance of the work without contacting the plaintiff. With the single exception previously described, helpers were under the complete control of the applicators as to hiring, supervision, discharge and rate of pay. Payment to the helpers would be from the total sum due the applicator, as determined by the applicator. The applicators determined their own work hours and no specific time was established for the completion of their jobs. When these circumstances are added to others previously noted, “the total situation” strongly suggests that the dealings of the plaintiff with the applicators should only be described as those of a principal contractor with his subcontractor. Jagolinzer v. United States, supra at 492.

As has been noted above, cases in this area turn on their particular factual patterns. Guidance provided by the specific facts of prior cases, therefore, is at best imperfect. It should be noted, however, that strong similarities exist between the facts at hand and several prior decisions of this court. Ray-hill v. United States, 176 Ct. Cl. 1120, 364 F. 2d 347 (1966); Illinois Tri-Seal Products, Inc. v. United States, supra; Edwards v. United States, supra. In each, the applicators or installers were free to set their own hours; brought their own tools, supplies, and equipment to the worksite; supplied their own transportation and related expenses; were free from plaintiff’s control as to the use and hiring of assistants; could perform jobs in their own names and were free to-contract for minor work with the homeowner at the jobsite; were paid on a per job basis with no pay day being set; and, were responsible for cleanup following job performance. While again raising the caveat of the necessity to base decisions only on the totality of specific facts present in a case rather than relying on analogy from prior specialized factual situations, the defendant’s heavy reliance on Security Roofing & Constr. Co. v. United States, supra, and Ben v. United States, 139 F. Supp. 883 (N.D.N.Y. 1956), aff'd per curiam, 241 F. 2d 127 (2d Cir. 1957), is misplaced.

Some factual differences in Security Roofing which illustrate an overall pattern of control by the roofing company over its applicators include: The roofing company usually supplied the staging and ladders as well as the materials; the jobs were usually calculated on the same rate basis without negotiation, regardless of a job’s difficulty; the applicator could be taken off one job and moved to another; applicator teams working on one project could be split up and one or more members moved to other jobsites; an applicator could be discharged at any time for cause; no extra work, including carpentry, which might be desired by the homeowner could be contracted for by the applicator with the homeowner in an independent capacity; and the workers were closely supervised and instructed by the 'company.

Similarly, in Ben v. United States, supra, several applicators appeared to depend exclusively on the plaintiff during the seasons when roofing work is most commonly done; while an applicator might refuse a worksheet from the roofing company, he would usually not be offered another if he did refuse one; if additional work was required to be performed, the applicator was not free to contract independently with the homeowner but had to first contact the roofing company which would make contractual arrangements with the homeowner in its own name; the right of discharge was asserted by the taxpayer; and Ben Corporation would consider it a breach of faith if the applicator, at any time, even when not performing assignments for the plaintiff, would undertake jobs which would place him in competition with the roofing firm whether such work was performed in the applicator’s own name or for another roofing company; and, a broad right of discharge was exercised over the applicators.

While isolated from the cases in which they occur, these factors are representative of an overall pattern of control by and dependence upon the roofing company by the workmen whose employee status was in question. Such dependence differs from the spirit of independence found in those cases in which applicators have been held not to be employees of roofing companies for which they performed services, See, Illinois Tri-Seal Products, Inc. v. United States, supra, 173 Ct. Cl. at 523-25, 353 F. 2d at 231-32, discussion and cases cited therein. It also contrasts sharply with the overall factual pattern of the case at hand.

Thus, the weight of the credible evidence strongly favors the plaintiff’s contention that he did not exercise common law control over the applicators and that they should not be classified as his employees for federal unemployment tax purposes. Plaintiff is, therefore, entitled to judgment for refund of federal unemployment taxes improperly required to be paid.

Plaintiff places great reliance upon the prior United States District Court holding that applicators who worked for Mm during 1958 were not “employees” for federal unemployment tax purposes. Billy G. Powers, t/a Powers Roofing & Siding Co. v. United States, Civil No. W-1365 (S.D. Kan., filed Mar. 27, 1958). Due to similarities in the Mring practices then and now, it is the plaintiff’s contention, sharply disputed by the defendant, that the doctrine, of stare deeisis should apply to the present case, eliminating the need for this court to reach a decision on the merits. Because of the conclusion, reached through an examination of the applicable law and facts described above, that the applicators who worked for the plaintiff in 1965 were not his employees, the issue need not be reached. However, due to the emphasis placed upon the question by the parties, mention of it is made here.

The related doctrines of collateral estoppel and stare decisis are 'applied to end constant litigation over the same facts and issues in later time periods. Generally, the use of collateral estoppel is limited to “situations where the matter raised in the second suit is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged.” Commissioner v. Sunnen, 333 U.S. 591, 599-600 (1948). Stare decisis is applied where the parties, the law, and the controlling facts remain the same, but the facts are separable in the two causes of action. If the first tribunal fully considered the evidence and identity of result would be “just and desirable,” the same or a second court is free to apply the doctrine in the second suit. Ben Constr. Corp. v. United States, 160 Ct. Cl. 604, 606, 312 F. 2d 781, 782 (1963); cf. Forrest Village Apts., Inc. v. United States, 178 Ct. Cl. 490, 371 F. 2d 500 (1967).

Noting at the outset that 9 years passed between the two taxable years in question, several differences appear in the two cases: In. 1956, the plaintiff operated solely in Wichita and Arkansas City, Kansas. Nine years later his business had expanded beyond that state’s boundaries. The worksheet or order provided to the applicators in 1956 contained the name and address of the customer where the work was to be performed and a general statement of the nature of the work to be done. In 1965 the work order might additionally state the general methods an applicator was to use in doing a job or whether there was to be a deviation from a material manufacturer’s instructions. While no written agreement other than the work order would be executed between the plaintiff and the applicator in 1956, in 1965 he would be presented with, and might be asked to read or sign, an additional document entitled Rules and Regulations for Sub-Contractors or Specifications for Sub-Contractors. The 1958 findings indicate that the applicator, either through negotiation or on a per square basis, priced all carpentry work through the plaintiff. In contrast, during 1965, the applicator would contract on his own for carpentry or other extra work of a minor nature. While the 1958 findings imply that the sole means of payment to applicators’ helpers was by check from the plaintiff, with the amount being subtracted from the total amount due the applicator, in 1965 the applicators could pay the helpers themselves from the sum due from plaintiff under the subcontract. In 1956 the applicators received no instructions as to how or in what manner the work should be started, or the method to be used in applying the materials. In 1965, however, the plaintiff might give verbal instruction to the applicators in addition to those in the worksheet.

In sum, while the most general patterns of the relationship between the applicators and the plaintiff appear to be the same for the two tax periods in question, there are several specific differences in the way in which the plaintiff carried on his business in 1956 and 1965. Lacking identity of facts, the doctrine of collateral estoppel is inapplicable. Commissioner v. Sunnen, supra. The entire thrust of the trial evidence, as agreed to by the parties, was directed toward the facts as they existed in 1965. No attempt was made to present evidence of similar practices in 1956. Particularly in the tax field, where every tax period may present a new set of circumstances, a factual background in greater depth would have to be laid by the parties to permit more delicate distinctions to be drawn by the court. At least, the evidence does not permit analogies of such quality to be drawn that it can be said that similarity of result in the two cases is “just and desirable” purely as a matter of law. Ben Constr. Corp. v. United States, supra. As a consequence, reliance on the doctrine of stare decisis is not compelling. In any event, the question is mooted by the clear basis for rendering a decision on the merits, as described above.

Thus, it is concluded upon examination of the facts in this and in similar cases, and applying the law as laid down by the cases, the statute and pertinent regulation, the applicators in the instant case, in 1965, were not employees of the plaintiff for federal unemployment tax purposes. Accordingly, judgment should be entered for plaintiff for the refund claimed with interest as allowed by law.

FINDINGS of Facts

1. The plaintiff is an individual, operating as the Powers Hoofing Company, a sole proprietorship, with his principal place of business located at Arkansas City, Kansas.

2. During 1965 plaintiff was engaged in the business of repairing and modernizing dwelling houses, commercial buildings and grain elevators chiefly by the application of roofing, siding and other structural materials. Such work was not limited to the Arkansas City area and was performed in storm areas within a wide radius of Arkansas City where properties had suffered severe damage from hail, rain or tornadoes. In these instances plaintiff would visit the area and work in conjunction with an existing lumberyard where he would open a temporary office, or sometimes use a motel as an office. Such temporary office was staffed by one of plaintiff’s salaried company men and a clerk.

3. Some of the work of applying roofing and siding was done by men known in the trade as applicators. In 1965 plaintiff paid approximately 60 applicators. In February 1966 plaintiff reported and paid Federal Unemployment Tax Act taxes (Futa) of $1,579.90 allegedly due on the earnings of applicators for the year 1965. On March 7,1966, plaintiff filed a timely claim for refund of the same amount, asserting no liability theref or on the earnings of 'applicators. The District Director took no action on that claim within the 6-month period following its filing. Plaintiff then filed a timely petition with the court, claiming a refund with interest and costs as may be allowed by law.

4. On March 27, 1958, the United States District Court for the District of Kansas, in the case of Billy G. Powers, t/a Powers Roofing & Siding Co. v. United States, Civil No. W-1365 (unreported), determined that applicators performing services for plaintiff in his business were not employees for federal tax purposes. It is defendant’s position that the facts in 1965 are different from those in the 1958 case and that the applicators are employees within the concept of Futa. It is stipulated that the sole issue in the instant case is whether the applicators were plaintiff’s employees in 1965 as that term was and is defined in section 3306 (i) of the Internal Eevenue Code of 1954 and Eegulations § 31.3306 (i)-1.

5. In the conduct of his business plaintiff employed several additional categories of personnel whose taxable status is not in issue here. These included office help (receptionist, secretary and bookkeeper), expediters, mechanics, warehousemen, salesmen and hot-roofing crews. The latter who performed about 60 percent of the work done by plaintiff were paid at an hourly rate. Plaintiff paid federal unemployment taxes on the foregoing employees.

6. Contracts for the application of roofing and siding were obtained from homeowners and others by salesmen acting on behalf of Powers. In June 1957 the Internal Eevenue Service ruled that these salesmen were not plaintiff’s employees within the meaning of the Federal Insurance Contributions Act taxes imposed by the Federal Unemployment Tax Act, nor subject to withholding of wages under the Internal Keve-nue Code and were not plaintiff’s employees. They were paid on a commission basis. They solicited contracts from homeowners and used a printed form which carried the heading, Powers Boofing & Siding Co. Tire form when completed listed the signatures of the homeowner and salesman, described the work to be done and stated the agreed total price for labor and materials.

7. After a sales contract was entered into between plaintiff, represented by a salesman, and a homeowner, office personnel would make up a worksheet or order from the information contained in the contract. The typical work order contained the name and address of the homeowner, the salesman, the date the work order was assigned, the specifications or a general description of the work to be done and a list of materials to be used, including the number of “squares” (100 sq. ft.) of material to be applied. The work order sometimes stated the methods an applicator was to use in doing a job or whether there was to be a deviation from a material manufacturer’s instructions.

8. The work orders were submitted to available applicators by one of plaintiff’s supervisors or office men. These supervisors inspected jobs and made sure that materials were delivered to jobsites and that applicators were paid. Applicators would examine the work orders and either accept or reject them at their option. A rejection did not necessarily bar an applicator for consideration for another job. Sometimes applicators would negotiate with plaintiff concerning the payment for a job rather than to reject the work order.

9. Plaintiff desired to work with qualified, experienced applicators and maintained a list of them. Plaintiff also advertised for them in the newspapers. Some applicators just came into the office or contacted plaintiff. While the applicators did the actual work the jobs were performed in plaintiff’s name and not in the name of the applicator. Applicators were responsible only for the tasks assigned them on work orders. Homeowners paid their bills to plaintiff. Applicators working with plaintiff came from widely scattered locations throughout the Midwest. If an applicator had not worked for plaintiff before, he was questioned about his qualifications and equipment.

10. In addition to the work order plaintiff prepared a document on company stationery, entitled Bules and Begula-tions for Sub-Contractors. This document was presented to applicators wbo accepted work orders. It bad places for tbe signature of tbe applicator, designated tbereon as a subcontractor, indicating agreement thereto, and for an authorized signature on behalf of plaintiff. Among other things the Bules and Begulations for Sub-Contractors provided that the latter would furnish all equipment except in unusual circumstances; they would be paid only after inspection of a completed job showed the work to be satisfactory; general specifications were set forth for flashings and trim; the document bound the sub to an agreement to finish the work “as quickly as possible” and for a forfeiture of all rights of payment for neglect or leaving the job uncompleted so that another would have to finish it; and repair of leaks was made the subcontractor’s responsibility. One paragraph required that a subcontractor applicator working for plaintiff obtain a release from plaintiff before hiring out to another for “side work” in a storm or catastrophe area, and for a forfeiture of a prospective bonus for failure to obtain a release. In December 1965 this latter paragraph was deleted when the document was issued under a new heading, entitled Specifications for Sub-Contractors.

11. At least three applicators left jobs they were doing for plaintiff without obtaining releases. This did not bar them for obtaining other jobs from plaintiff later. Applicators and plaintiff understood that there were no restrictions against applicators working on their own account or for plaintiff’s competitors either before or after working for plaintiff. Plaintiff had no preferred call on the time or efforts of applicators who were free to accept or reject his proffered work orders. Plaintiff did insist that when an applicator accepted one of his jobs that it be finished before the applicator worked for someone else. Plaintiff did not guarantee applicators any definite amount of work.

12. The evidence establishes that the document, Bules and Begulations, was not always signed by applicators. It was plaintiff’s intent that the document would show applicators what plaintiff expected as to the quality of work to be done, although it could be supplemented verbally and the evidence shows that it was on limited occasions.

13. The applicators famished their own tools and equipment for performance of work done for plaintiff. Such tools included shingling hatchets, knives, tapes, aprons, ladders, inserting bars, ladder jacks, walk boards, and tin snips. Applicators also were charged with hauling away the debris. They provided their own transportation. On rare occasions plaintiff would furnish a special piece of equipment or a truck. Applicators bore the cost of maintenance of their equipment, meals and lodging. The value of their tools and equipment varied but in the usual instance appeared to be in the $300 to $500 range.

14. Plaintiff furnished all contract materials necessary for the performance of a particular job, and saw to it that they were delivered to the jobsite. These materials included such items as shingles, roll felt, slate, flashing cement and metal edging.

15. Payment to applicators was usually made on the basis of a specified price for each 100 square feet of material applied. The price varied depending on whether the material to be applied was composition, asbestos, or slate. There was no set pay day and payment for work performed was usually made upon completion of the job. Applicators could draw advances on partially completed work. Extra pay was given for extra work such as removing an old roof, for felt under-layment, plywood decks, and the like. If the applicator felt that the price on a per square basis was not adequate for >a particular job a price would be negotiated. This could happen where there were unusual circumstances such as a very steep roof. Sometimes an applicator would submit a bid as to the amount that he would accept for doing a particular job. In 1964 or 1985 plaintiff withheld 8 percent or 10 percent of the pay due an applicator to cover insurance costs and in case a leak developed on a finished job. The Bules and Regulations for Sub-Contractors provided that plaintiff would furnish insurance if the subcontractor did not have it. Most of the 'amount withheld was for insurance. The weight of the credible evidence is that if applicators were entitled to any refund of the amount withheld they received it about a year after completion of the job. The withholding procedure was explained orally to applicators and did not specifically appear on work orders. Tbe practice was discontinued after 1 year. Applicators objected to tbe practice.

16. No specific time was established by tbe evidence within which an applicator would start or complete work on a job represented by a work order. Applicators determined their own hours of work. The contract form used for the agreement between plaintiff and the homeowner had a space to indicate “Soon as Possible/On or Before.” This space is not filled in on the only contract in evidence and there is no evidence that it was commonly used. As heretofore noted in finding 10, the Bules and Begulations provided that the work should be done “as quickly as possible” and provided sanctions for “neglect or goofing off.” The duration of jobs varied from a day or two to a week or two.

17. Applicators could and did employ others to assist them and these helpers received a portion of the money otherwise due the applicator. One applicator employed a man to haul away debris. Helpers were also employed by applicators to assist in completion of contract applicating work for plaintiff. Plaintiff did not select these helpers but on occasion did pay them by check after being advised by the applicator what they should be paid from the total sum due the applicator. There is evidence, also, that applicators would sometimes take the whole sum due them for plaintiff and pay the helpers themselves.

18. Applicators both hired and supervised their helpers. Plaintiff did not interfere with an applicator when he hired a helper. The evidence establishes a single occasion on which plaintiff terminated the services of an applicator and his helper. The applicator got drunk, suffered an injury and failed to show up for work. His helper, a man known to plaintiff, was then observed helping one of plaintiff’s competitors. The applicator was paid for the work he had already done but the job had to be finished by another. Plaintiff considered the subcontract breached under paragraph 8 of the Bules and Begulations or Specifications for Sub-Contractors which read:

8. SUB-CONTRACTOR herbby agrees, once he starts a job he should complete that job as quickly as possible. Should, be, through neglect or goofing off, leave his job open and it becomes necessary for the Company to get another contractor in order to get the job completed, the original sub-contractor shall forfeit all rights of paymbNt for the job started.

19. Plaintiff did not undertake actively to supervise the work of applicators. Having been satisfied prior to contracting with an applicator that he was qualified and experienced, plaintiff relied 'on his skill to perform the work properly, in accordance with the work order, instructions, and plaintiff’s Pules for Sub-Contractors, to the homeowner’s satisfaction. Representatives of plaintiff might inspect the jobsite where an applicator was working on a job taking more than a day or two. At such times an effort would be made to see if the work was progressing according to the work order and contract and if sufficient materials were on hand for the job. If there was ’any doubt about the applicator conforming to the work order and contract the homeowner was contacted to make sure he was satisfied. Otherwise, the applicator did not get paid. If an applicator did work later found to be faulty he was required to fix it without additional compensation if still in the area. Otherwise, in 1965, plaintiff had the work done by another out of the 10 percent withheld as aforesaid.

20. On some occasions, applicators performed work for plaintiff in an area distant from Arkansas City, Kansas, without supervision of any kind from plaintiff. Work orders would be given to an applicator in such areas by one of plaintiff’s salesmen who obtained contracts from customers. Subsequent communication between plaintiff and the applicator regarding materials, payment, and other matters incident to the work, was by mail. The salesman was considered an independent contractor in his relationship with plaintiff.

21. On occasion, applicators would contract directly with the homeowner for comparatively minor repair work, such as carpentry, not contemplated in the contract between plaintiff and the homeowner or the work order given to the applicator. In these cases, the homeowner would be charged directly and the applicator was neither required nor expected to inform the plaintiff. Where, however, the additional work was of a substantial nature, the understanding between the applicators and plaintiff was that plaintiff was to be called, would send a salesman to make an estimate for the homeowner, and contract for the work with the homeowner.

22. If the applicator received a lead on a house other than the one on which he was presently working, he would usually turn the lead into the company office. In turn, if the lead materialized into a contract for plaintiff, the referring applicator normally would be offered the subcontract.

23. The testimony given by most applicators called as witnesses indicates that they considered themselves as plaintiff’s employees. However, one applicator paid income and social security taxes as a self-employed individual. Plaintiff did not consider the applicators as employees and the evidence establishes that some of them received form 1099 at the end of the year 1965 disclosing the total compensation paid to them by plaintiff during that year. Plaintiff never considered that he was obligated to withhold any of the compensation of the applicators for taxes or to file returns and pay taxes for them until audited and required to do so by the Internal Revenue Service.

CONCLUSION OF LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover and judgment is therefore entered to that effect. The amount of recovery is reserved for further proceedings under Rule 131 (c) (2).  