
    531 F. 2d 554
    JAMES P. McCORMICK v. THE UNITED STATES
    [No. 173-73.
    Decided March 17, 1976]
    
      
      Herbert L. Awe, attorney of record, for plaintiff. Michael Mulroney and William L. Goldman, of counsel.
    
      Donald H. Olson, with, whom was Assistant Attorney Gem eral Scott P. Orampton, for defendant. Theodore D. Peyser, of counsel.
    Before SheltoN, Kunzig and BeNNEtt, Judges.
   Per Curiam :

This case comes before the court on plaintiff’s exceptions to the recommended decision, filed March 24,1975, by Trial Judge No aid A. Hogenson, pursuant to Buie 134(h), ¡having been submitted to the court on the briefs and oral argument of counsel. Upon consideration thereof, since the court agrees with the trial judge’s recommended decision, as hereinafter set forth, it hereby affirms and adopts the same as the basis for its judgment in this case. Therefore, it is concluded that plaintiff is not entitled to recover and the petition is dismissed.

OPINION OE TRIAL JUDGE

Hogenson, Trial Judge:

This is an action to recover an alleged overpayment of Federal employment taxes for the quarter ending September 30, 1972. Commonly known as social security taxes, such taxes are imposed on wages by the Federal Insurance Contributions Act, under section 3101 of the Internal Eevenue Code of 1954 as to the employee’s share of the tax, and under section 3111 as to the employer’s share, with the employer charged by law with collecting and paying the employee’s share of the tax by withholding from wages.

The issue is whether certain persons known as free-lance exercise boys (riders) and hotwalkers, who perform sendees for plaintiff in his business of training racehorses, are independent contractors, in which status their compensation for such services would not be wages subject to the tax, or whether such persons are employees of plaintiff, with their compensation as wages subject to the tax.

For the purposes of such taxes, section 3121(d) defines the term “employee” as “any individual who, under the usual common law ¡rules applicable in determining the employer-employee relationship, has the status of an employee * *

For the reasons stated herein, it is concluded that plaintiff’s free-lance exercise riders and hotwalkers are employees of plaintiff, that the employment taxes were properly collected from plaintiff, and that plaintiff’s petition should be dismissed.

The facts in this case are set forth in detail in the findings of fact which follow. They will be summarized here only to the extent necessary to explain the basis for the decision that plaintiff is not entitled to recover.

Taxpayer, James P. McCormick, is a public trainer of thoroughbred racehorses. As such, he trains horses of various owners to win horse races. Sometimes he is the owner or partial owner of horses he stables and trains. His obligations to a racehorse owner include providing shelter, feed, the basic equipment needed for training, daily maintenance and a training program directed toward making the horse a winner of races. The trainer is paid a flat daily fee of approximately $20 for his services and receives a portion of the purse when a horse wins a race. The trainer’s relationship to the owner is that of an independent businessman. When necessary peripheral services, such as those of a veterinarian or a blacksmith, are needed the trainer engages the personnel and the cost is normally paid by the owner. In the regular conduct of the horse training business, the trainer retains the services of personnel necessary to assist him in properly training the horses.

Plaintiff uses the services of a foreman, grooms, hotwalkers and exercise riders on a regular basis. He acknowledges that those among such personnel who have a regular, permanent relationship with him are his employees for Federal employment tax purposes. As is commonly done in the racehorse training business, plaintiff obtains the services of other hot-walkers and exercise riders on an irregular basis to walk or exercise horses when the regular personnel are unavailable. It is the status of these people, -hired on an irregular, nonpermanent basis, that is in issue 'here.

The training program involves conditioning the horse for racing through a regimen devised by the trainer according to the trainer’s assessment of the horse. The program involves giving the horse some exercise every day. The basic exercises take the form of a “walk” (leading the horse at a walking pace to provide light exercise or to “cool” the horse gradually after strenuous exercise), a “gallop” (running the horse on the track at less than full speed), and a “work” (running the horse at full speed for short distances). The “walk” is performed by a person called a “hotwalker,’’ or when available and weather conditions permit, by a hotwalking machine which mechanically leads the horse around in a circle. All exercise rider puts the horse through a “gallop” or a “work.” The trainer tells such rider what type of exercise is to be accomplished and at which speed and for what distance the horse should be ridden on each occasion.

The trainer is normally in attendance at the track, whether a regular or irregular exercise rider is handling the horse, observing the exercise. The trainer is more cautious and more likely to be present when an irregular or so-called freelancer is handling the horse because of the free-lancer’s unfa.mi1ia.rity with the horse, or his lack of understanding of the trainer’s “modus operandi,” or because of the trainer’s unfamiliarity with the free-lancer’s ability. As a trainer’s confidence in a free-lancer increases, the amount of instruction and observation may, to a degree, lessen. The trainer has the authority to countermand an instruction or terminate a free-lancer’s job when the work is in progress. In the case of the exericse rider, this is obviously difficult and sometimes impossible to do because of the problem of controlling a racehorse and its rider while in motion. Such orders are rare, given only on the most unusual occasions.

An exercise rider must be experienced and highly skillful to handle a thoroughbred racehorse. To ride an animal as temperamental and physically adept as a racehorse through the trainer-prescribed routine calls for a significant degree of equestrian proficiency. In a literal sense, the exercise rider physically controls the horse when he is astride it. However, the rider’s range of discretion is narrow in nature — limited to knowing when to discontinue an exercise to avoid injury to the horse. The exercise rider rarely decides what exercise the horse will do or how it will be done. But in terms of physical control, the rider makes the liorse successfully perform the exercise. To conform with, tire trainer’s instructions, the exercise rider must possess good judgment concerning the stride (distance covered with each movement of the horse’s legs) and pace (distance covered in a given time). The exercises normally take place during morning hours when the track is available for that purpose, both the regular and freelance services being perf ormed during that time. The trainer generally supplies the saddle and blankets for the horse. To save time and prevent disease the horse is usually saddled and ready for the free-lancer to ride. The free-lancer’s equipment consists of riding boots and a protective helmet, required by tra'ck rules. All exercise personnel are covered for risk of injury while riding a horse, either through the trainer’s workmen’s compensation insurance (state or privately operated) or through the Horsemen’s Benevolent Protective Association Assistance Fund.

The major performance difference between the free-lancer and the regular exercise rider is: When the exercise ends, the free-lancer’s work for that specific trainer is done, whereas the regular exercise rider has to be available to perform other duties for the trainer. Free-lance exercise riders are frequently looking for a trainer to hire them on a regular employment basis. Those having regular employment with a trainer endeavor to earn extra money by riding for others on a free-lance basis whenever they can. Harry Stauffer, one of the free-lancers whose employment status is here in dispute, was an exception. Stauffer had been a jockey for 10 years and returned to being an exercise rider. He relished being able to work when he pleased, viewed himself as an independent and did not want to work for anyone on a regular basis. Although free-lancers may work for more than one trainer, they develop familiarity and experience with certain horses, and they usually ride the same horses every day.

During the period in issue, both the taxpayer’s freelancers and his regular exercise rider (Doimy Miller) were paid on a per-ride basis. Subsequent to the period in issue the taxpayer provided Miller a guaranteed minimum salary rate not entirely predicated on the number of horses he rode. Free-lancers were paid only for horses ridden, whereas regular employees also enjoyed a Christmas bonus, received vacation pay and shared in “stakes,” which is a portion of the prize money received when a horse wins.

For the period in issue, the third quarter of 1972, taxpayer complied with Eev. Eul. 72-155 which holds that free-lance exercise riders and hotwalkers were employees of the trainer, and timely paid the Federal employment taxes for the individuals whose employment status is in dispute. Subsequently taxpayer filed a claim for refund which stated that these people were not employees but independent contractors and protested that the legal conclusions in Eev. Eul. 72-155 were erroneous. The Government failed to issue a statutory notice of disallowance within the prescribed 6-month period, and the taxpayer subsequently filed suit in this court.

Plaintiff would have a narrow test applied as to what constitutes control for defining the relationship between a racehorse trainer and free-lancers in the conduct of the horse training business.

In summary, plaintiff argues that complete control of the racehorse by the free-lancer when in his custody, with the accomplishment of the prescribed exercise dependent upon the free-lancer’s equestrian skills, combined with the fact that the free-lancer’s services terminate after the completion of the exercise for which he is retained, and considering the impractibility of the trainer’s exerting control or terminating the services of the free-lancer during the course of the exercise, requires a determination that the free-lancer is an independent contractor. As to the free-lancer exercise rider, plaintiff’s position merits serious consideration. As to the free-lance hotwalker, the argument lacks force, because there is no doubt about control of the hotwalker by the trainer during the performance of services.

The basic standard for determining the presence or absence of an employer-employee relationship is whether the person performing the services for another is subject to the other’s control or right to control. Cape Shore Fish Co. v. United States, 165 Ct. Cl. 680, 636, 330 F. 2d 961, 964 (1964).

Many factors are relevant in applying realistically the common law control test such as existence of control and supervision, or right to control performance (Deecy Products Co. v. Welch, 124 F. 2d 592, 598 (1st Cir. 1941)); the degree of control required and applicable in the particular vocation involved (United States v. Well, 397 U.S. 179, 192 (1970)); opportunity for profit or loss, investment in facilities, burden of risk, whether the services are part of the regular business of the person for whom performed, and whether substantial costs are incurred by the performer of the services (United States v. Silk, 331 U.S. 704, 716-19 (1947)); degree of skill required (McGuire v. United States, 349 F. 2d 644, 645 (9th Cir. 1965)) ; permanency of the relationship, Avis Rent A Car System, Inc. v. United States, 503 F. 2d 423, 430 (2d Cir. 1974).

No one factor is persuasive or to be considered exclusive. The relationship is to be ascertained by an overall view of the entire situation, not by any rule of thumb, nor by the presence or absence of a single factor. The result in each case must be governed by the special facts and circumstances of the case itself. Cape Shore Fish Co. v. United States, supra, 165 Ct. Cl. at 636-37, 330 F. 2d at 964-65.

The right or degree of control necessary to make one an employee varies with the activity involved, but it is the right or degree of control that is commonly exercisable in that business. United States v. Well, Inc., sufra, 397 U.S. at 190-93. All that is required is that the right of control exists and be available for exercise. Deecy Products Co. v. Welch, supra, 124 F. 2d at 598.

Taxpayer, as well as any other racehorse trainer, was retained by racehorse owners to exercise his own skill and judgment in conditioning horses for races. He did not retain others to determine what program was to be applied to each horse, but made his own decisions, and issued instructions to those performing services for him in accordance with his own program. His instructions to free-lance exercise riders and hotwalkers were in furtherance of Ms own program of conditioning a horse. The exercising of any one of his assigned horses, whether performed by a regular or an irregular exercise rider or hotwalker, was done as an integral part of his business, and Ms instructions to each free-lance exercise rider or hotwalker were an integral part of his program to accomplish Ms own plan of conditioning a racehorse for a defimte purpose — to participate as a winner in a particular race or races.

Treasury Regulations § 31.3121 (d)-l and § 31.3306(i)-l furnish a guide as to where control rests in this case. Both provide in part:

* * * That is, an employee is subject to the will and control of the employer not only as to wheat shall be done •but how it shall be done. * * * [Emphasis added.]

Plaintiff argues in effect that the “what” and “how” are limited to the narrow focus as to what the free-lance rider will do and how he will employ his skills in the riding of a racehorse in an exercise directed in accordance with the instructions of the trainer. The broader view must reasonably be applied in this case. The “what” and “how” concern the distance the exercise will cover and the method to be employed, whether by walking, galloping, working, running in company with another horse, or otherwise, all as instructed by the trainer in accordance with his planned program. This is obviously the degree of control used in the conduct of a racehorse trainer’s business, both with respect to regular and irregular exercise riders. United States v. Webb, supra. The requisite control is not negated by the circumstance that the exercise rider must have.and exercise equestrian skills and good judgment in carrying out the instructions of the trainer.

Of course, the exercise rider is expected to use reasonable discretion in the handling of a racehorse, and not ride the horse to ruin. Such discretion is not unlike that required of any skilled employee given physical control over an employer’s powerful and expensive equipment, to operate the equipment with reasonable care in accordance with the standards of Ms trade and avoid unnecessary damage.

The right of control in this case cannot be limited to the literal physical control which an exercise rider must exercise over the racehorse during the prescribed ride, and to the circumstance that the trainer does not place himself astride the horse or otherwise place himself in position to direct the performance of the services during the course of the exercise. The exercises prescribed by the trainer are not separate and distinct transactions, unrelated to his structured training program, and his retaining of exercise riders and hotwalkers, whether on a regular or irregular basis, must be considered the hiring of employees for the conduct of his own business operations.

As plaintiff operated his exercise program, it would have been difficult, if not impossible in some instances, for him to furnish directions and instructions to an exercise rider during the course of such ride. However, it is significant that plaintiff, having given precise instructions, placed himself in position to observe the exercise ride. This was known to the exercise rider, and common sense dictates that the watchful eyes of a supervisor are a realistic form of exercise of control of the performance of employees. Moreover, the evidence is clear that on occasion a trainer was able to communicate instructions to the exercise rider during the course of the exercise. With respect to the hotwalkers, of course, there was no practical problem of control during the performance of a particular assignment.

Another factor to be considered in this case is who furnished the equipment. Where equipment is necessary to perform a task, particularly where it is of significant value requiring substantial investment, the person furnishing such equipment in the performance of services may be deemed to be an independent contractor. It is one circumstance to be considered as to whether he is under the control of the alleged employer. Powers v. United States, 191 Ct. Cl. 762, 773, 424 F. 2d 593, 600 (1970). The hotwalkers furnished nothing. The free-lance riders in this case furnished boots and helmets, which are of nominal value, particularly when compared to the saddles and other equipment furnished by the trainer. The fact that the trainer furnished the saddles as a matter of expediency does not negate the weight of this factor because it also relates to the investment factor.

The trainer had a significant investment in 'his business in addition to the cost of equipment provided for the exercise activity. The free-lance riders and hotwalkers by contrast had insignificant monetary investment in the services they provided. The trainer had opportunity for profit or loss that the free-lancers completely lacked. The trainer shared in the rewards When horses won. He had the option of reducing expenses to maintain or increase profits. The free-lancer had no economic leverage. He was restricted to the money that could be earned based on the capacity to ride or lead horses.

The burdens of risk were also unknown to the free-lancer, but common to the trainer. The trainer was subject to loss on his investment and could be denied income by either failing to produce winning horses or to control expenses. In addition, the trainer had to answer to the owner regarding care, maintenance and progress of the horse. The free-lancers, by contrast, were not obligated to anyone and assumed no financial risk that an independent businessman must undertake, unless one considers failure to be paid their wages such a risk. The freelancers did not even protect themselves against the risk of personal injury. Parities other than the free-lancer assumed the responsibility and cost of preventing injury by providing “pony boys” to catch the horse if the rider lost control during an exercise. The personal injuries of a free-lancer are covered by the trainer’s workmen’s compensation insurance (as though he were a regular employee) or by the Horsemen’s Benevolent and Protective Association Assistance Fund (which fund provides assistance to certain persons connected with horse racing when help is unavailable elsewhere — to which fund the trainers contribute through the payment of fees charged for bringing horses to the starting gate before races). The free-lancer earned his pay (or at least his right to it) no matter what happened, and he had no responsibility except to ride or lead the horse as he was told.

Considering all the foregoing factors, the free-lancers are substantially similar to the coal shovelers in Silk, supra; the produce unloaders in McGuire, supra; and the car shuttlers in Avis, supra, all held to be employees, not independent contractors, even though transients.

The regularity or irregularity of employment did not make a substantial difference in the trainer’s calculation of pay, nor did it affect the methods of payment to the regular and freelance riders and hotwalkers. All of the workers were generally paid at the same time (Friday or Saturday of the week in which the services were performed), in the same way (by check) and at the same place (the trainer’s stable). The differences in pay (free-lancers did not receive bonuses, vacation pay or any share in a racehorse’s winnings) are inconsequential in the overall setting of the relationships involved.

Of course, the trainer did not unilaterally set the precise time of performance of duties by the free-lancer, but a definite time was mutually agreed upon. The rider was restricted to the morning hours when the track was available for exercising, and the rider had no choice about postponing an exercise to suit his personal convenience. The hotwalker performed his services when a horse needed a walk, not when the hotwalker chose to act. Of course, no free-lancer had to accept any assignment, but none had any discretion about the time of performance of a job accepted.

It appears that the trainer and the free-lancers held the belief that they did not have the status of employer/ employees, but that the free-lancers were independent contractors. The validity of their belief is clouded by a serious question as to whether they had any clear understanding of the legal distinctions between the two relationships. It would appear that their attitudes were based primarily on the irregularity and impermanency of their relationships.

It is recognized that in close cases, the view of the interested parties with respect to payment of employment taxes is significant. Illinois Tri-Seal Products, Inc. v. United States, supra, 173 Ct. Cl. at 502, 353 F. 2d at 218.

The Treasury Regulations cited herein state in effect that the description or designation by the parties to a relationship that services are being performed in the capacity of an independent contractor, as distinguished from an employee, is immaterial, if the relationship of employer/employee is established under the facts and circumstances of the particular case. In Bartels v. Birmingham, 332 U.S. 126 (1947), the Supreme Court held that the parties cannot even change the relationship by contract, when the relationship was not in fact what they agreed it was. Subject case is not the close one in which significance should be accorded to the views of the parties.

Under the facts and circumstances of this case, both the free-lance exercise riders and the hotwalkers were employees of taxpayer under the common law test.

Accordingly, plaintiff correctly complied with Eev. Eul. 72-155, and is not entitled to recover the Federal employment taxes paid by him on account of the free-lance workers involved in this case.

FINDINGS OE EACT

1. Plaintiff, James P. McCormick (hereinafter referred to as trainer or taxpayer) is, and during the third quarter of 1972 was, a licensed trainer of thoroughbred racehorses, having part interest in several of them.

2. In such business, taxpayer employed various individuals. On the compensation he paid to such individuals during the period here in issue (the third quarter of 1972) he filed Treasury Form 941 and paid Federal Insurance Contributions Act (FICA or social security) and withholding taxes. He filed a timely claim for refund alleging therein that certain individuals for whom either FICA or withholding taxes were paid were not his employees, but were independent contractors. This action was initiated more than 6 months after filing of that claim — which claim was neither allowed nor disallowed.

3. During the third quarter of 1972, covering the calendar months of July, August and September, taxpayer was operating at Delaware Eace Course (July and most of August) and Laurel Eace Course (September), where he had under his care and supervision as a trainer approximately 15 racehorses. The training operations at both race courses were the same in all major respects.

4. Eacehorses are stabled in an area called the “backstretch” which is adjacent to the racetrack. The training and conditioning of racehorses is generally done in the backstretch or on the racetrack.

5. Taxpayer is a public trainer. He accepts horses to train from various horse owners. The trainer receives a flat fee of approximately $20 per day per horse in exchange for his services, and in addition, receives a bonus when one of the horses he has trained wins money in a race. The trainer’s economic incentive is to train horses at minimum cost to win races.

6. A public trainer’s relationship with a horse owner is that of an independent businessman who is given the responsibility of training the owner’s horse to win races. The trainer, based on his evaluation of the horse’s abilities, determines and executes the basic training program- which will be followed. The trainer’s obligations include furnishing the basic equipment and supplies needed to train, shelter and feed the horses. He secures the services of necessary personnel to assist him in keeping and properly training the horses. To accomplish his training program, the trainer uses the services of a foreman, grooms, hotwalkers and exercise boys (riders) on a regular basis.

7. On behalf of the owner, the trainer engages other people whose services are necessary but peripheral to the basic training program (blacksmiths, veterinarians, jockeys) with the costs incurred paid by the owner.

8. Thoroughbred racehorses are temperamental animals and range in value from approximately $5,000 to over $50,000. These horses receive careful handling from a young age so that they develop the proper temperament for racing. The horses must not be physically or mentally overexerted during the training program. Consequently, trainers must be careful who exercises the horses during the training period. Although taxpayer tried to and did retain people to work for him on a regular basis, ho occasionally needed and obtained the services of other persons on an irregular basis, to exercise or walk horses.

9. The daily training program starts before dawn with a careful feeding that will permit strenuous exercise.

10. To condition a horse for racing, the trainer plans a program which gives the horse some exercise every day. The exercise is in the form of a “walk,” -a “gallop,” or a “work.”

11. A “walk” involves leading a horse at a slow pace to provide light exercise, or to relax (“cool”) a horse gradually after strenuous exercise or racing. A “walk” is performed by a person called a “hotwalker” or by a hotwalking machine. A hotwalking machine has metal arms to which a horse’s halter is attached and which leads the horse in a circular path. The hotwalking machine was used only at Laurel (Maryland) Bace Course and could not be used when it rained.

12. Exercise riders are used to “gallop” or “work” racehorses. A “gallop” is the running of a racehorse on a track at half speed for various distances up to 2 miles. A “work” is the running of a racehorse at a fast speed over varying distances which are shorter than the gallop distance. The trainer tells the exercise rider to work the horse at varying speeds at different places on the track and to ride a given distance in a specified number of seconds. The trainer also determines when a horse should be run in company (side-by-side with another horse) or when to “pony” the horse (led around the track by another horse).

13. The temperament of a thoroughbred racehorse requires a skillful and experienced rider to successfully execute the trainer’s orders in the prescribed exercises. The rider’s range of discretion is narrow and limited to the common sense judgment of recognizing (if or when the trainer fails to) when a prescribed exercise should be discontinued because of indications of illness or injury of the 'horse.

14. The trainer plans a week to a month in advance precisely how a particular horse is going to be trained. Individual differences among trainers and distinctive qualities of each horse necessitate the instructing of exercise personnel on how each horse is to be handled. The free-lancer’s unfamiliarity with any given horse and its trainer’s modus operandi requires the trainer to give him closer supervision and attention than a regular exercise rider would need.

15. The racetrack is available for exercising horses for a Short period every day — usually from daylight until 10:30 a.m. — and all exercise people must perform their work with the horses during that time. Exercisers working for a trainer on a regular basis are expected to report to the stable each morning at a particular time. Those working for the trainer on an irregular basis must also normally make a definite time arrangement for their ride or rides. Sometimes .the free-lancer is retained shortly before the exercise.

16. Taxpayer, lite most trainers, normally goes to the racetrack to observe while his horses are being exercised. Each trainer has a special place on the track from which he observes his exercise personnel work the horses, which place is known by his riders. At Lanrel, the taxpayer stands at the end of the track nearest to his bam. His exercise people pass by bim on the way to exercise the horse and usually at least once again during the course of the exercise, depending on the type of exercise the trainer instructed. The trainer may give the exerciser general instructions (such as gallop slowly for several laps around the track) or specific instructions (such as run % mile in 1 minute and 2 seconds).

17. To perform the trainer’s instructions, exercisers must be skillful riders. They must be good judges of the pace and speed at which a racehorse is running an exercise.

18. In addition to their presence on the track during the exercising of horses, trainers often accompany the horse and the exercise riders to the track, giving instructions in accordance with weather and track conditions. Trainers thoroughly know the abilities and condition of their horses and give the exercise riders instructions accordingly.

19. If something appears to be wrong with the horse during its exercise, the rider is expected to react promptly to the difficulty (such as terminating the exercise when necessary) and to report all problems to his trainer. Continuing the exercise of a racehorse that may have an incipient injury may cause irreparable harm to the racehorse.

''""20. If and when the need arises, the trainer gives last-minute instructions to his riders as they pass his observation place on the track immediately before the exercise. During the actual exercise, while the horse is in motion, it is possible but improbable and unusual for the trainer to give additional instructions. It is possible for the trainer to direct an exercise rider to go faster or slower during the course of the exercise. Although it is uncommon that instructions are given to exercise riders when a horse is in motion, all the exercise riders who were examined in this case acknowledged that in their experience a trainer on occasion has given additional directions after the exercises were begun.

21. The trainer (taxpayer herein) had both the right and the opportunity to control the manner and means by which an exercise rider (regular or free-lance) did his work.

22. Taxpayer had the right to terminate an exercise rider’s services while he was on the horse and engaged in the exercise, although this was concededly difficult, if not impossible, to do in certain types of exercise.

23. Exercise riders frequently work for one trainer on a regular 'basis for a fixed salary that often includes benefits. During the third quarter of 1972, taxpayer used the services of one exercise rider (Donny Miller) on a regular basis. Taxpayer considered Miller an employee and his status is not in question.

24. Free-lance exercise personnel normally try to establish and maintain a regular employment relationship with one particular trainer at a given racetrack.

25. If taxpayer decided to run two or more horses together, he would hire extra exercise riders to accompany Miller. Extra or free-lance exercise riders were also hired when there were no regular exercise riders available. During the third quarter of 1972, Harry Stauffer, Herman Amos and Larry Eversole were used by plaintiff on an irregular and impermanent basis as exercise riders. It is their employment status which is in issue in this case.

26. During the taxable period in question, taxpayer also used the services of hotwalkers (both on a regular and an irregular basis). The irregular hotwalkers are known as freelance hotwalkers. The employment status of two such freelance hotwalkers (Ealph Anderson and Joseph Thomas) is in dispute here. Their services were used by plaintiff during the time in issue. Neither of these individuals testified — their whereabouts were unknown.

27. Free-lance exercise riders are either looking for a trainer to hire them on a steady basis, or working for more than one trainer each day. A free-lance exercise rider may have a regular afternoon job, perhaps at the racetrack, and may make arrangements with a particular trainer to exercise horses for that trainer in the morning to make extra money. Although a free-lance exercise rider may work for more than one trainer, he usually works on the same horses every day with a definite arrangement that he will be available at a certain time.

28. Taxpayer compensated both his regular and free-lance exercise personnel on the basis of the number of horses exercised. He also provided extra compensation to his regular employees in the way of vacation pay, Christmas bonus, and shares in the “stakes” being a division of the trainer’s share of the winnings of a racehorse between himself -and his regular employees. None of such extra compensation was paid by plaintiff to free-lance personnel.

29. Of the three exercise people whose status is in question, only Harry Stauffer testified at the trial. 'Stauffer had been riding horses for over 20 years, having been a jockey from 1953 to 1963, and an exercise rider since that time. He has worked at racetracks throughout North America.

30. On July 1,1972, taxpayer paid Harry Stauffer $24 for riding eight horses. After the social security deduction, Stauffer’s check was for the net amount of $22.90.

31. Stauffer kept a complete record (or diary) of all the trainers for whom he rode and the number of horses he rode each day he worked. Miller (the regular exercise rider) kept a similar record for the number of horses he rode for taxpayer each week. Stauffer was paid at the going rate of $3 per ride. Stauffer used his diary to aid him in collecting the amounts due him.

32. Stauffer considered himself an independent rider since he himself determined for whom and when he would work. If he did not wish to work, or if he did not like the trainer for whom he had worked, he would refrain from offering his services. Stauffer would try, at the beginning of each racing meet, to find a trainer for whom he could work on a steady basis. His diary demonstrates this by showing that he did work for certain trainers on an almost daily basis — riding horses for the same trainers day after day. In August 1972 Stauffer was riding as many as 11 horses a day for one trainer. Around October 23,1972 Stauffer began riding horses almost exclusively for trainer John Tommaro and continued doing so through the end of the year. Tommatro withheld the Federal employment taxes from Stauffer’s pay.

33. While working for trainers on an irregular basis, Stauffer received no shares in stakes, no Christmas bonus, and no paid vacations. He vacationed and worked whenever he pleased. He was paid solely on the basis of the number of horses he rode, and he did not receive a weekly salary or a minimum guarantee.

34. The other two free-lance exercise riders (Herman Amos and Larry Eversole) worked for taxpayer when his regular exercise rider was unavailable and when taxpayer wanted to exercise two or three horses together. They were paid solely for horses ridden.

35. Taxpayer employed a regular hotwalker (Joseph Johnson) , who did share in the stakes when a horse won a race and also received a Christmas bonus. Taxpayer considered Johnson to be his employee. Johnson worked for taxpayer at both the Delaware and Laurel racetracks.

36. Free-lance hotwalkers Anderson and Thomas worked for taxpayer on a fairly steady basis, each for one week in the period of time in issue. Each also walked horses for other trainers while performing services for plaintiff. Anderson received a total payment of $33 from plaintiff on July 8,1972. At a rate of $1 to $3 per walk, Anderson walked between 11 and 33 horses during that week. Thomas received a total payment of $24 from plaintiff on August 12,1972. At a rate of $1 to $3 per walk, Thomas walked between 8 and 24 horses for taxpayer that week. These were the only amounts taxpayei paid these hotwalkers during 1972. They did not accompany taxpayer when he transferred from Delaware to Laurel in late August. Taxpayer considered them transients and not regular employees.

37. Hotwalkers need no special skills. They are under the control of the trainer or his other employees in performing their tasks.

38. On Friday or Saturday of each week taxpayer paid all of his personnel (grooms, exercise people, hotwalkers and others) at the same time, whether they were working for him on a regular or irregular basis. He paid by check in order to have a record of the payment and he paid on certain days each week for his own administrative convenience.

39. Taxpayer deducted amounts from the weekly paychecks of his regular employees if they failed to appear for work. The regular exercise rider (Miller) kept a record of the number of horses he worked and he was paid once a week on that basis during the period in issue. Subsequently, Miller was provided a guaranteed minimum wage not entirely predicated on the number of borses be rode.

40. Taxpayer reported the individuals in question as employees on Form 941 in accordance with Rev. Rui. 72-155 which required payment of employment taxes on free-lance exercise riders and hotwalkers.

41. Another free-lance exercise rider (Richard Kline) worked for taxpayer when the regular exercise rider was on vacation. Kline reported for work every day and was paid for the number of horses he rode for taxpayer. Kline worked on a steady basis for another trainer at the same time. During the trial, taxpayer waived any claim for refund with respect to Kline on the ground that Kline performed regular services as an exercise rider.

42. Charlotte Eaton (another exercise rider who testified) stated that she considers herself to be a free-lancer. She worked for two trainers on an almost daily basis, and was expected to report to their barns every day.

43. Exercise personnel, whether regular employees of a particular trainer or free-lancers, received the same kind of instructions for the exercising of the taxpayer’s horses, except that the instructions to a free-lancer were more detailed and precise since he might not be as familiar with a particular horse.

44. There is general belief among horse trainers and the free-lance exercise riders and hotwalkers that such parties do not have the employer/employee relationship. Such belief is based primarily on the irregularity and impermanency of their relationship. In light of all of the facts and circumstances, this belief is of no significance in the application of the common law test.

45. Taxpayer had no general objection to his regular exercise rider or hotwalker working for other trainers, but did expect them to complete their work for him before performing services for others.

46. The Maryland Division of the National Horsemen’s Benevolent and Protective Association (HBPA — an association of owners and trainers who race in Maryland) has a plan of benefits for trainers and their employees, but this plan does not cover free-lancers. However, free-lancers can and do receive assistance from the Maryland Horsemen’s Assistance Fund (established by state law) which provides financial aid in circumstances of necessity to anyone connected with racing. The program is administered by HBPA. The majority of thoroughbred racehorse owners and trainers belong to the HBPA, which represents them in various capacities. The HBPA will first try to have an injured free-lancer covered by the trainer’s workmen’s compensation policy. Taxpayer did have free-lancers covered as employees under his workmen’s compensation policy. When the workmen’s compensation policy does not cover the injured free-lancer, the HBPA determines whether it will provide benefits under its program. When Harry Stauffer (a free-lancer) was injured in 1972, all his medical bills were paid by the HBPA. He also received a small subsistence payment from the organization.

47. The trainer generally carries the risks of personal injury for those who work with horses under his supervision. The financial risk of personal injury from working with a racehorse is not a burden assumed by the free-lancer.

48. The employment relationship of a professional jockey to a trainer is not in issue in this case.

49. Before a horse can be raced in competition the services of a capable jockey must be engaged. This is an important decision that the owner normally leaves to the more expert knowledge of his trainer. The owner and the trainer play no significant role in the actual race. Usually the trainer selects the jockey by negotiating with the jockey’s agent. The jockey is generally paid a basic fee of $30 per race plus 10 percent of the purse for a win. When a jockey first rides a horse in a race, the trainer explains in advance how the particular horse likes to run and describes the horse’s peculiarities and characteristics. The trainer may also suggest what he thinks is the best way to ride the horse. If a jockey already has ridden a horse several times, the trainer’s advisory role for subsequent races is usually diminished or ended. Sometimes a jockey is retained by a trainer under contract to ride various horses in various races over a period of time.

50. The jockey has total control over the horse during the race. How the horse will run the race is for determination by the jockey in the exigencies of the contest. The jockey must react to circumstances which may unexpectedly arise once the race has began, and be is expected to use bis best judgment and skill to overcome any problems and to win tbe race.

ULTIMATE FINDINGS OF FACT AND CONCLUSIONS

51. Taxpayer bad tbe right to exercise control and did exercise control over tbe free-lance exercise riders in issue regarding tbe manner and means by which they performed their services.

52. Taxpayer had tbe right to exercise control and did exercise control over tbe free-lance hotwalkers in issue regarding the manner and means by which they did their work.

53. The free-lance exercise riders in issue performed serv-vices for taxpayer as employees, not as independent contractors.

54. The free-'lance hotwalkers in issue performed services for taxpayer as employees, not as independent contractors.

55. Plaintiff is not entitled to recover the withholding and PICA taxes paid with respect to the free-lance workers in issue for the third quarter of 1972.

CONCLUSION OF LAW

Upon the foregoing opinion and findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover, and the petition is dismissed. 
      
       Wherever applicable the word “free-lancher” will refer both to exercise riders and hotwalkers. Where the word obviously does not apply to hot-walkers, it win refer only to exercise riders.
     
      
       Rey. Rui. 72 -155, 1972-1 Cum. Bull. 32i2, holds that the racehorse trainer exercises or has the right to exercise such control over the free-lance exercise personnel and hotwalkers as is necessary under the usual common law rules to establish the relationship of employer and employee for Federal employment tax purposes.
     
      
       Ralph T. Anderson and Joseph 11. Thomas, hotwalkers. Larry Bversole, Harry Stauffer and Herman Amos, exercise riders.
     
      
      
        See Illinois Tri-Seal Products, Inc. v. United States, 173 Ct. Cl. 499, 512-19, 353 F. 2d 216, 224—29 (1965), for tie judicial, administrative and legislative developments leading to uneguivocal application of the common law test.
     