
    364 F. 2d 347
    LEO M. & GENEVIEVE B. RAYHILL, d/b/a LEO M. RAYHILL COMPANY v. THE UNITED STATES
    [No. 21-62.
    Decided July 15, 1966]
    
      
      Joseph J. Lyman, attorney of record, for plaintiff.
    
      Mitehell Samuelson, with wliom was Assistant Attorney General Mitehell Bogovin, for defendant. Richard M. Roberts, Lyle M. Turner and Philip R. Miller, of counsel.
    Before CoweN, Chief Judge, Laramore, Dureee, Davis, and ColliNs, Judges.
    
   Per Curiam :

This case was referred to Trial Commissioner Herbert N. Maletz with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed on March 25, 1965. Exceptions to the commissioner’s opinion and report were filed by defendant and the case was submitted to the court on the briefs of the parties and oral argument of counsel. Since the court is in agreement with the opinion and recommendation of the commissioner, with slight modifications, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. This case is very near to Illinois Tri-Seal Products, Inc. v. United States 173 Ct. Cl. 499, 353 F. 2d 216 (1965). It differs from Illinois Tri-Seal in some respects — including the fact that the applicators here did not pay their own employment taxes — but we think that these differences, though they may make this a closer case than Illinois Tri-Seal, are insufficient to call for a decision different from that in Illinois Tri-Seal. The major patterns of the work relationships are too much alike. Plaintiff is therefore entitled to recover and judgment is entered for plaintiff with the amount of recovery to be determined pursuant to Rule 47(c).

Commissioner Maletz’ opinion, as modified by the court, is as follows:

Plaintiff has brought this action to recover federal insurance contributions and unemployment taxes alleged to have been erroneously paid for the period from January 1, 1959 through March 31, 1960 on the earnings of certain workers known as “applicators”. The single issue presented is whether during that period such applicators were “employees” of plaintiff within the meaning of sections 3121(d) (2) and 3306 (i) of the Internal Revenue Code of 1954 (26 U.S.C. §§ 3121(d) (2), 3306 (i) (1958 ed.)), both of which “specifically adopt the common-law test for ascertaining the existence of the employer-employee relationship.” Enochs v. Williams Paching Co., 370 U.S. 1, 3 (1962). Section 3121(d) provides in part:

For purposes of this chapter, the term employee means—
(1) any officer of a corporation; or
(2) any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an employee; or
-J. *8* *J- *1*

Section 3308(i) reads:

For purposes of this chapter, the term “employee” includes an officer of a corporation, but such term does not include—
(1) any individual who, under the usual common law rules applicable in determining the employer-employee relationship, has the status of an independent contractor, or
(2) any individual (except an officer of a corporation) who is not an employee under such common law rules.

Plaintiff, a partnership, maintained a regular office in Syracuse, New York, where it engaged in the home-improvement business which consists of selling to homeowners and applying to their houses such structural materials as roofing and siding. Plaintiff’s salesmen (who were held to be independent contractors by the District Director of Internal Revenue) obtained written contracts on its behalf from property owners for the sale and installation of the materials, which contracts contained a general description of the improvements to be made; an agreed price for labor and materials; plaintiff’s promise to furnish good quality material and to perform all labor in a good workmanlike manner; and a statement by plaintiff that it was fully protected with public liability, property damage and workmen’s compensation insurance.

The individuals who performed the labor under these contracts by applying the roofing and siding materials to the homes of plaintiff’s customers were called “applicators”. They did not maintain an office, advertise in the newspapers or telephone directory, or have their own business cards. Plaintiff acquired the services of applicators by several different methods. Ordinarily it obtained the names of qualified applicators from its wholesale materials supplier; it also had the names of several qualified applicators upon whom it could call to perform a contract job. In some instances, plaintiff’s competitors referred applicators to it; on occasion, applicators came to plaintiff’s office seeking work; and at times plaintiff advertised, in tbe “Help Wanted” section of the newspapers for applicators.

When a particular contract job was ready, the applicator was proffered a work sheet which contained the name and 'address of the property owner where the work was to be performed; a general description of the work; an approximation of the number of squares of roofing or siding material to be applied; and the kind, size, type and color of material to be used, and where to apply it. Some work sheets also specified the number of coats of paint to be applied, and the kind and size of the molding to be used. Also, on occasion, a work sheet contained a notation as to when a job was to be started. In the event a particular job was an unusual one, that fact, as well, was usually noted on the work sheet.

Plaintiff proffered work sheets only to experienced applicators who were deemed capable of performing the work but there was no bidding among the applicators for the work sheets. Each applicator was free to accept or reject any j ob and frequently an applicator rej ected a j ob. Despite this, he was still offered further application work by plaintiff. On many occasions, an applicator, when proffered a work sheet, went out and examined the work premises before advising plaintiff as to whether or not he would take the job.

Contract materials, such as roofing and siding materials, were furnished by plaintiff who had them delivered to the job site. The applicators provided their own tools which usually consisted of ladders, planks, hammers, material cutters, pump jacks and small tools, which in the aggregate cost new from $100.00 to $400.00. They also provided their own station wagons or trucks for transportation of themselves and their equipment to and from the various job sites, and paid all the expenses for the upkeep and maintenance of their equipment and vehicles without accounting to or obtaining reimbursement from plaintiff. Each job was a separate and distinct undertaking between the plaintiff and the applicator, and a separate work sheet was furnished the applicator for each job. Neither plaintiff nor the applicator was obligated to offer or accept another j ob. The applicators were generally paid by the job and not on the basis of any hourly, daily, weekly or other periodic rate. More particularly, the applicators were generally paid on the basis of a prevailing piecework rate for each square of roofing and siding applied and, consequently, there were no price negotiations between the plaintiff and the applicators except where extra work incident to the j ob was required. Payment was due at the completion of a job, but the practice was to pay the applicators on Friday for work completed in that week. However, the applicators could and frequently did obtain payment for completed jobs at other times during the week simply upon request.

It was understood that the applicator would start work on a job as soon as he had finished the work with which he was then occupied and that he would complete the job within a reasonable time. The applicators, however, had no specified working hours; rather, each applicator determined his own hours of work, the length of time that he worked, and the amount of time he would take off.

The applicator worked either alone or with an associate applicator of his own choosing. The compensation paid for a job was divided between associate applicators in accordance with the arrangement between them, and the plaintiff did not participate in such arrangement. The applicator was free to and did employ helpers of his own choosing without the approval of the plaintiff and determined the helpers’ pay, hours and working conditions without interference by plaintiff. A helper was paid directly by the plaintiff in an amount specified by the applicator, the plaintiff having no voice in the amount of compensation the helper received. The amount the plaintiff paid a helper was taken from the amount of compensation due from the plaintiff to the applicator on the specific job on which the helper was employed.

All work was done away from plaintiff’s premises. The plaintiff had no supervisors or other personnel to observe, instruct or direct the applicators as the work progressed and did not undertake to supervise the work of the applicators, although the partner in charge of plaintiff’s Syracuse office occasionally visited a job to see if it was being performed in accordance with the terms of the contract. Other than being expected to comply with the requirements set forth in the work sheets, the applicators received no instructions or directions from plaintiff as to the manner or method in which the work was to be done.

The applicators were free to and did on occasion contract directly with a customer of plaintiff for comparatively minor repair or alteration work not covered by the contract or work sheet, in which case the applicator was compensated directly by the customer without intervention by the plaintiff. However, in the event the additional work desired by the customer was of a major nature and was of a kind performed by plaintiff, it was understood that the applicator would notify the plaintiff who would send out a salesman to sell the j ob. Also, if the applicator, while performing a job for plaintiff received a lead on new work of a kind performed by plaintiff, it was understood that he would turn the lead over to the plaintiff. Ordinarily, the applicator received no bonus or commission for reporting a lead, but on occasion received a token commission if the job was sold.

Since all applicating work was on a job-to-job basis, there was no understanding between the applicators and plaintiff that an applicator would get a definite number of jobs or that the applicator would perform a certain number of jobs. However, there were 7 or 8 “regulars” who could be looked to by plaintiff in assigning work sheets throughout the year and these “regulars” spent most of their time during the period in question in performing applicating jobs for plaintiff. In the intervals between doing such jobs, they performed similar work for other concerns. Ordinarily when the plaintiff had only one job available and several applicators including a “regular” sought a job, the plaintiff gave it to the “regular”. The vast majority of applicators came and went; that is to say, they usually were given two or three jobs by the plaintiff, following which they performed jobs for plaintiff’s competitors, and then returned to plaintiff’s office seeking further jobs. There was no understanding that applicators would perform jobs in any certain sequence; this was a matter within the individual applicator’s discretion. Between jobs for plaintiff, applicators were free not only to perform jobs for competitors of plaintiff but to perform jobs on their own account for homeowners, and some applicators did perform such, contract work on their own account, while others did not seek such work.

After the applicator had completed a job and the work proved to be unsatisfactory, the applicator was required to go back and repair the work without additional compensation. Plaintiff never terminated his arrangement with an applicator during progress of a job. If not satisfied with the applicator’s work, plaintiff refrained from offering him another work sheet. The applicator terminated or suspended Iris relationship with the plaintiff without notice by rejecting or failing to apply for another job.

The applicators were not members of any labor union and plaintiff’s dealings with them were on an individual basis. Plaintiff had no agreement which entitled it to a preferred call on the time and services of the applicators.

On various occasions, plaintiff had signs placed at job sites which stated that it was doing the work; it also had public liability and property damage insurance coverage for accidents or damages caused by the work done by the applicators. In addition, the plaintiff was and is enrolled under and paid contributions in behalf of both the applicators and its salesmen to the Workmen’s Compensation Program of the State of New York. The plaintiff also was originally enrolled under the New York State Unemployment Insurance Program with respect to the applicators. An application to the New York State Department of Labor resulted in a refund to the plaintiff of the contributions so paid as a result of a decision by that Department, after an administrative hearing, that the applicators were not employees within the meaning of the State statute.

Turning now to the applicable legal principles, it is, of course, fundamental that under the common-law test prescribed by the statutes in question, the presence or absence of an employer-employee relationship is largely determined by whether or not the person for whom the work is done has the right to control the manner and method of performing the work, as well as the result to be accomplished. See e.g., Illinois Tri-Seal Products, Inc., et al. v. United States, 173 Ct. Cl. 499, 510-11, 353 F. 2d 216, 223-24 (1965), and cases there cited. Thus, an applicable Treasury regulation which is an “authoritative elaboration” of the common-law test (id. p. 511) provides in part (26 CFE § 31.3121(d)-l) :

Who are employees.
(a) :|: * *
(cj Common law employees. .(1) Every individual is an employee if under the usual common law rules the relationship between him and the person for whom he performs services is the legal relationship of employer and employee.
(2) 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 or 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 under the usual common law rules. Individuals such as physicians, lawyers, dentists, veterinarians, construction contractors, public stenographers, and auctioneers, engaged in the pursuit of an independent trade, business, or profession, in which they offer their services to the public, are independent contractors and not employees. * * *
(3) Whether the relationship of employer and employee exists under the usual common law rules will in doubtful cases be determined upon an examination of the particular facts of each case.

The Congressional intent underlying the enactment of the statutes involved here calls for a realistic and nonrestrictive application of the common-law rules in order to ascertain the real substance of the arrangement. Illinois Tri-Seal Products, Inc. v. United States, supra, pp. 514—18, 353 F. 2d at pp. 225-28. This requires consideration of all pertinent factors in making- the ultimate determination. Thus, in addition to the factors prescribed by the Treasury regulation, relevant to the determination are such factors as “degrees of control, opportunities for profit and loss, investment in facilities, permanency of relation and skill required * * *.” United States v. Silk, 331 U.S. 704, 716 (1947) ; Enochs v. Williams Packing Co., 370 U.S. 1, 3 (1962) ; also relevant are the method of payment (whether 'by time or job), whether or not the work is part of the employer’s regular business, and whether or not the parties believe they are creating an employer-employee relationship in the common-law sense. Restatement of the Law, Agency 2d § 220: “[N]o one factor is controlling nor are these factors exclusive. The relationship is to be ascertained by an over-all view of the entire situation, not by any rule of thumb, or 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, 165 Ct. Cl. 630, 637, 330 F. 2d 961, 965 (1964). “It is the total situation that controls.” Bartels v. Birmingham, 332 U.S. 126, 130 (1947) ; Arthur Venneri Co. v. United States, 169 Ct. Cl. 74, 83, 340 F. 2d 337, 343 (1965).

Against this background, and for the reasons set forth below, it is concluded on the basis of the total situation that plaintiff had the right under the arrangement to control only the result to be accomplished by the applicators and lacked the right to control the manner in which the work was to be performed. For here in summary the record shows the following: the applicators determined for themselves when they would work and their hours of work. They furnished their own tools and equipment for the performance of the work; provided their own station wagons or trucks for transportation of their tools and equipment to and from the various job sites; paid all expenses for upkeep and maintenance of their vehicles and equipment without accounting to or obtaining reimbursement from plaintiff; and had a not insubstantial investment in vehicles, tools and equipment. The applicators were free to work alone or witb partners or associates of their own choosing who decided among themselves without any interference by the plaintiff the division of their compensation. Many hired helpers of their own choosing and determined their helpers’ pay, hours and working conditions.

The applicators were experienced workers who possessed the ability to perform the work in accordance with the terms of the contract. They were not members of a labor union; they dealt with the plaintiff as individuals on a ;job-to-job basis, and between performing jobs for plaintiff they were free to and did in some instances compete directly with the plaintiff. They were paid by the job rather than upon an hourly, daily, weekly, or other periodic rate. They could and did reject any proffered job in their own discretion without recrimination. Since each job was of comparatively short duration and the applicator was free to accept or reject the offer of a new job, “permanency of relationship can hardly be said to exist or be a weighty element.” Silver v. United States, 131 F. Supp. 209, 212 (N.D.N.Y. 1954) ; Illinois TriSeal Products, Inc. v. United States, supra, pp. 518-19, 353 F. 2d at p. 229.

All work was done away from plaintiff’s premises and plaintiff never attempted to control or direct the mamier in which the applicators did the work. Plaintiff had no foremen or supervisors to direct the applicators in the manner of doing the work. Other than being expected to follow work sheet requirements of a kind usually contained in contract specifications so that the job would be accomplished in accordance therewith, the applicators received no instructions or directions from plaintiff as to the manner in which the work was to be done.

In no instance was the work of an applicator terminated during its progress. If plaintiff was dissatisfied with the work, he would not offer the applicator another work order. The applicator, if dissatisfied, would decline the next job offered by the plaintiff. “This, of course, is not the equivalent of a right to fire an applicator from a job once be had begun to work on it. It is only evidence of the right not to enter into another contract.” United States v. Thorson, 282 F. 2d 157, 164 (1st Cir. 1960). See also Party Cab Co. v. United States, 172 F. 2d 87, 93 (7th Cir., 1949) cert denied, 338 U.S. 818 ; American Homes of N.E. v. United States, 173 F. Supp. 857, 859 (D. Mass. 1959) ; Silver v. United States, 131 F. Supp. 209, 212 (N.D.N.Y. 1954) ; Jagolinzer v. United States, 150 F. Supp. 489, 492 (D. R.I., 1957).

The fact that plaintiff’s customers could sue plaintiff for the negligent acts of the applicators is not significant. Such liability is predicated on the doctrine of estoppel or a holding out to the public, and this consideration is in no way determinative of the issue here. Magruder v. Yellow Cab of D.C., 141 F. 2d 324, 325 (4th Cir.1944) ; Illinois Tri-Seal Products, Inc. v. United States, supra, pp. 521-22, 353 F. 2d at p. 230. And although relevant, it is not determinative that the applicators’ work was an essential part of the plaintiff’s regular business as is illustrated by the Internal Revenue Service’s ruling that plaintiff’s salesmen were not employees though they too were undoubtedly an equally essential part of the plaintiff’s business.

The record, moreover, fails to establish that the parties believed that they were creating an employer-employee relationship in the common-law sense. While the plaintiff was enrolled under and paid contributions on behalf of the applicators to the New York State workmen’s compensation program, under the present interpretation of that State’s law, the term “employees” for purpose of coverage encompasses not only common-law employees but also persons who meet the “relative nature of the work test”. Gordon v. New York Life Insurance Co., 300 N.Y. 652, 90 N.E. 2d 898 (1950) ; Paly v. Lane Brush Co., 174 N.Y.S. 2d 205 (App. Div. 1958). See also Larson Workmen’s Compensation § 43.54. Parenthetically it will be observed in this connection that plaintiff enrolled its salesmen under the State workmen’s compensation program notwithstanding that they had been held not to be common-law employees for federal tax purposes. In short, because of the difference in concept between an “employee” for New York workmen’s compensation purposes and an “employee” for federal tax purposes, plaintiff’s enrollment of the applicators under the State workmen’s compensation program cannot be considered an indication that it believed thereby that they were employees in the common-law sense. See Dimmitt-Rickhoff-Bayer Real Estate Co. v. Finnegan, 179 F. 2d 882, 885 (8th Cir. 1950) cert. denied, 340 U.S. 823; Conasauga River Lumber Co. v. Wade, 221 F. 2d 312, 315 (6th Cir., 1955) cert. denied, 350 U.S. 949 (1956) ; Thor Company v. United States, 173 F. Supp. 65, 68-9 (D. Mass. 1959), aff’d United States v. Thorson, 282 F. 2d 157, 163 (1st Cir. 1960). Likewise, plaintiff’s enrollment of the applicators under the New York Unemployment Insurance Program would seem to have little pertinence here. For one thing, refunds on the contributions thus made were sought and obtained on the ground that the applicators were not employees within the meaning of the State statute. For another, the plaintiff “may have believed it safer to provide such coverage to protect [itself] in case the applicators might sometime be held to be employees. * * * The sole issue here is whether these applicators were employees within the meaning of the pertinent Federal tax statutes. This question cannot be determined by whether or not they were employees within the meaning of a state workmen’s compensation law or [a state unemployment statute] * * * Much less is it determined by what plaintiffs rightly or wrongly may have thought the status of the applicators was under such a state statute. * * *” Thor Company v. United States, supra, p. 69.

Nor in the circumstances of this case can an intent to create an employer-employee relationship he inferred from the fact without more that plaintiff withheld from, and paid the appropriate federal taxes on, the earnings of the applicators. Failure to have made such withholdings and payments might have subjected it to assessments and penalties (see e.g., Illinois Tri-Seal Products, Inc., supra, at p. 502, 353 F. 2d at p. 219), and to possible criminal sanctions. See 26 U.S.C. § 7202 (1958 ed.). Then, too, the plaintiff could not have challenged a deficiency in the Tax Court or had reasonable prospect of obtaining an injunction to restrain enforcement of the tax. Enochs v. Williams Packing Co., 370 U.S. 1 (1962). One need not resort to martyrdom to obtain judicial determination of the issue here. To suggest that the plaintiff should not have paid the tax if it believed that the applicators were not common-law employees would be to approve snares and traps for the unwary. In addition, the payment of the tax was a jurisdictional prerequisite to the filing of this suit. It would be an unusual law which first required the payment of a tax as a jurisdictional prerequisite to the filing of a suit for its refund and then permit its payment to be a ground for a defense against the claim.

Reference is made by defendant to terminology used by plaintiff in newspaper advertisements, insurance policies and the like to demonstrate that plaintiff conveyed the impression that applicators were employees. In addition to the fact that the term “employees” was not nsed, there is nothing in the record to indicate that plaintiff had in mind “common-law employees” as distinguished from those who may be considered employees for compensation purposes under State law or that plaintiff intended to convey the impression that it was hiring common-law employees as opposed to workers classified generally as employees for other purposes. And even if plaintiff did convey such impression, the terminology would be of much less consequence as compared to the actual facts of the relationship. Bartels v. Birmingham, supra. See also footnote 4, sufra. Also, the presence of plaintiff’s signs at the job sites and the absence there of applicators’ signs are “largely beside the point”. Millard's Inc. v. United States, 146 F. Supp. 385, 388 (D. N.J. 1956). For it is not usual for subcontractors and persons who fall into a category less than that of a “contractor” to place job signs on the job site where they are doing work and labor. Sometimes subcontractors will place their own signs at the work site but their absence does not make them any less a subcontractor. Largely beside the point too, given the other considerations present here, is the fact that the applicators had no business cards and did not advertise to the public. Thus, the Internal Revenue Service has held that artisans were not employees for tax purposes although they were paid by the hour and did not advertise their services to the public in any manner. See Rev. Rul. 55-582, 1955-2 CB 403; Rev. Rul. 57-63, 1957-1 CB 321, 322. See also Party Cab Co. v. United States, 172 F. 2d 87, 92 (7th Cir. 1949), cert. denied, 338 U.S. 818.

In sum, the applicators were not, during the period involved, plaintiff’s employees within the meaning of the federal statutes in question. Plaintiff is, therefore, entitled to judgment for the period in issue.

FINDINGS on Fact

1. The plaintiff is a partnership which, during the period involved, maintained a regular business office in Syracuse, New York, that was managed 'by a partner. It also maintained a regular business office in Utica, New York.

2. In this suit, the scope of which was narrowed during trial, plaintiff seeks to recover federal employment taxes alleged to have been erroneously paid on the income of 41 workers or mechanics called “applicators” who performed work for plaintiff’s Syracuse office during the period involved here.

3. The plaintiff hied its quarterly tax returns (forms 941) and annual excise tax returns (forms 940) with the District Director of Internal Revenue at Syracuse, New York, during the period here in question for the quarters ending March 31, 1959 through March 31, 1960, which is the period of the claim under consideration.

4. The plaintiff paid employment taxes on the earnings of the above-mentioned 41 applicators. By this action plaintiff seeks a refund of the excise portion of the Federal Insurance Contributions Act (FICA) taxes contributed by it and the excise tax comprising the Federal Unemployment Tax Act (FUTA) tax paid solely by the plaintiff. No claim is made for the income tax portion of the FICA taxes paid by the applicators.

5. On or about December 5,1960, plaintiff filed claims for refund of the employment taxes here concerned. More than six months have elapsed since the filing of the claim and this action was timely filed.

6. (a) In its claim for ref mid, plaintiff also sought refund of the employment taxes it paid on the earnings of certain other workers who performed services for it. These included installers, servicemen, carpenters, stone masons and painters who were paid by the hour and were provided various tools and items of equipment by plaintiff. Plaintiff has conceded in its petition that these workers were in fact employees and their statug is not at isspe here.

(b) In its claim for refund and in its petition, plaintiff also sought refund of the employment taxes it paid on the earnings of three additional applicators who performed services for it. At the trial, plaintiff stated it did not desire to contest the status of these three applicators. One of these applicators had also performed stone work for plaintiff with various tools and equipment furnished by the latter, while the other two had also performed service work at an hourly rate for plaintiff, the tools therefor also having been furnished by the latter.

7. Plaintiff has been engaged in the home improvement business in Syracuse, New York since 1951, and in Utica, New York since 1945. Essentially, the home improvement business consists of the sale to homeowners of such structural materials as roofing, siding, storm windows and stone remodeling materials, and the application of these materials to already existing homes for their improvement.

8. Prior to 1959, plaintiff’s business in Syracuse consisted mainly of the sale and installation of windows and doors and stone remodeling. During that period it engaged the sendees of workers who installed windows, doors and stone, and also applied roofing and siding. By 1959, the roofing and siding part of plaintiff’s business increased appreciably and plaintiff engaged the services of persons to perform only roofing and siding applications.

9. (a) Plaintiff’s salesmen solicited business from homeowners for sale and application of roofing and siding materials.

(b) The District Director of Internal Revenue in Syracuse held that during the period 1955 and 1956 plaintiff’s salesmen were not employees within the meaning of the Social Security Act. Thereafter, between 1956 and the first quarter of 1960, the working relationship between plaintiff and its salesmen remained the same as it was previously.

(c) Plaintiff’s salesman would execute a contract with the homeowners and bring it to the plaintiff’s office for approval. The contract was printed on a form supplied by plaintiff. Inserted in the executed contract was a general description of the home improvement to be performed and the total price for the labor and material. The contract form contained a provision that plaintiff agreed “to furnish good quality material and to perform all labor in a good workmanlike manner.” It also contained a provision in which plaintiff stated “it is fully protected with Public Liability Insurance, Property Damage Insurance and Workmen’s Compensation Insurance.”

10. The applicators performed the labor on the contracts under consideration. All of the work involved was application of siding and roofing, with some painting only.

11. Plaintiff acquired the services of the applicators by several different methods. Ordinarily, plaintiff obtained the names of qualified applicators from the wholesaler of the materials which plaintiff purchased for installation in fulfilling its contracts with customers. Plaintiff also had the names of several qualified applicators upon whom it could rely to perform the contracts. In addition, applicators came to plaintiff’s office and applied for contract jobs. In some instances, plaintiff’s competitors referred applicators to it and plaintiff, on occasion, referred applicators to competitors.

12. At times plaintiff inserted advertisements in the “Help Wanted” section of newspapers for applicators. The advertisements contained such statements as the following: “Ambitious person to fill opening as aluminum siding applicator”; “Siding Applicator — Good pay. Steady work. Must have tools and trans.”; “Roofing Applicators — wanted for Onondaga County. Only good men need apply. Must have equipment.” Plaintiff had difficulty in obtaining stone applicators and persons who responded to the advertisements listed above were encouraged to apply pre-cast stone rather than roofing or siding.

13. When an applicator came to plaintiff seeking to perform a contract job, plaintiff inquired of his qualifications and experience unless previously acquainted with him and gave jobs only to experienced applicators who were deemed capable of performing the contract work.

14. Giving a contract jo'b was done by plaintiff at the office. When a particular contract job was ready, the applicator was proffered a survey or work sheet which contained the following information: the name and address of the property owner where the work was to be performed; a general description of the work; an approximation of tlie number of squares (a square being 100 square feet) of siding or roofing material to be applied; and the kind, size, type and color of material to be used and where to apply it. Some work sheets also specified the number of coats of paint to be applied and the kind and size of the molding to be used. In the event a particular job was an unusual one, that fact, as a general rule, was also noted on the work sheet. On occasion, the work sheet specified when a job was to be started. Thus, work sheets contained such notations as “Apply soon as possible”; “Apply within 3 weeks”; “Job must be started about August 2d week”. There is no evidence in the record that any applicator was affected in the performance of an existing job by the time demands of a work sheet.

15. There was no bidding among the applicators for the work sheets.

16. (a) Each applicator was free to accept or reject any proffered job and frequently a job was rejected. After an applicator rejected a job, he still continued to be given other application work by plaintiff.

(b) When proffered a work sheet, an applicator frequently went out and examined the job site, after which he advised the plaintiff as to whether or not he would take the job.

17. There was no written agreement between the plaintiff and any applicator. With the exception of the work sheet, the arrangement between them was entirely oral.

18. (a) When the plaintiff engaged an applicator, no inquiry was made as to Iris financial status or credit rating or as to whether or not he had any property damage or public liability insurance. Nor was anything said to the applicator by plaintiff about inspection or non-inspection of his work, or his rights, duties and obligations.

(b) As set forth in finding ’6(a), plaintiff also used the services of installers, servicemen, carpenters, stone masons and painters who were paid by the hour and were furnished various tools and items of equipment by plaintiff. Their arrangements with plaintiff were likewise oral and nothing was said to these individuals about inspection of their work or the rights, duties and obligations of the parties. In this respect plaintiff’s relationship with these workers was the same as its relationship with the applicators.

19. The contract materials, such as roofing and siding materials, were furnished by plaintiff who had them delivered to the job site. Plaintiff’s investment in materials in a job was usually between $500.00 and $600.00. Plaintiff paid for all materials that were damaged, lost or broken.

20. The applicators provided their own transportation to and from the job location, which consisted usually of a station wagon or truck. They furnished and maintained their own vehicles and provided insurance coverage thereon, all without accounting to or obtaining reimbursement from plaintiff.

21. The applicators furnished all of their own tools and equipment necessary for the performance of the work which they transported to the job sites in their own vehicles. The tools and equipment usually consisted of ladders and planks, hammers, material cutters, pump j acks and small tools. The applicators maintained their own tools and equipment and replaced them from time to time at their own expense without accounting to or obtaining reimbursement from plaintiff. The cost of the tools and equipment new varied among the applicators from $100.00 to $400.00.

22. Each job was a separate and distinct undertaking between plaintiff and the applicator, and a separate work sheet was furnished the applicator for each job. Neither plaintiff nor the applicator was obligated to offer or accept another job.

23. It was understood that the applicator would start work on a job as soon as he was finished with work with which he was presently occupied for plaintiff or for other concerns. It was also understood that the applicator would complete the job within a reasonable time. A typical siding job on a one-family house usually took one applicator about five days, while a typical siding job on a two-family house usually took one applicator between one and two weeks.

24. The applicator had no specified working hours. Each applicator determined his own hours of work, the length of time that he worked, and the amount of time he would take off. The applicators also worked on such days as suited their own convenience, subject to the understanding that they would start work on a job as soon as they were finished with other work and would complete it within a reasonable time.

25. All work was done away from plaintiff’s premises. Plaintiff had no supervisors or other personnel to observe, instruct or direct the applicators as the work progressed and it did not undertake to supervise the work of the applicators. On occasion, the partner in the plaintiff firm who managed the Syracuse office visited a job to see if it was being performed in accordance with the terms of the contract. Such partner concerned himself with the completion of a job in accordance with the contract to the satisfaction of the customer. Having satisfied himself that its applicators were qualified and experienced, plaintiff relied upon them to perform the work properly and in accordance with the requirements contained in the work sheets.

26. Other than being expected to follow the requirements contained in the work sheets, the applicators received no instructions or directions from plaintiff as to the manner or method in which the work was to be done.

27. (a)- The plaintiff generally paid the applicator on a piecework basis by the square for the roofing or siding applied. There was a prevailing and customary rate per square that was paid in the trade and consequently there were no price negotiations between plaintiff and the applicator except in the circumstances hereafter described.

(b) In those instances where a competitor referred an applicator to do a job for plaintiff, it was understood that the plaintiff would pay that applicator the same net amount per square of material applied as was paid by that competitor, even though plaintiff customarily had paid a higher or different price to other applicators for the same work.

(c) The compensation paid to the applicator was not based upon any hourly, daily, weekly or any other periodic rate, except to the limited extent indicated in the following finding. 'Since plaintiff paid the prevailing rate or the competitor’s rate per square of roofing or siding applied, the applicator could compute what compensation could be expected from a job at the time the work sheet was proffered to him. Even though some jobs were more difficult than others, the customary rate or the competitor’s rate was still paid, the easier jobs balancing the more difficult. If a job was some distance from Syracuse, the plaintiff and the applicator negotiated a higher rate per square of material applied.

28. On occasion, extra work incident to the job, such as carpentry work or other labor, was required over and above the performance described on the work sheet. If the extra work was relatively minor in nature, the applicator proceeded without approval of the plaintiff, but otherwise had to obtain authority from the plaintiff before commencing performance. In either event, the compensation for doing the extra work frequently became the subject matter of negotiation between the applicator and the plaintiff. Not being computable on a per square basis, the compensation for doing the extra work was computed mainly from the standpoint of the time required for its performance. The applicator gave the plaintiff a flat figure which was agreed upon or negotiated between the plaintiff and the applicator. The compensation for extra work was in addition to that paid on the per square basis. The amount of extra work on the various jobs was relatively small and the necessity for extra work was infrequent.

29. Upon the completion of a job, the applicator secured a certificate of satisfactory completion from the customer. If it was a cash job, the customer, on occasion, delivered the check directly to the applicator. Thereupon, the certificate or check was delivered to the plaintiff’s office where the applicator received the amount due him for the job. As a general practice, the applicators were paid by check on Friday for work completed in that week. However, applicators could and frequently did obtain their compensation at other times during the week, simply upon request. Plaintiff made partial payments for work completed in progress on a job, but never made full payment until the job was completed. The checks issued to applicators by plaintiff as compensation for their services were in a net amount, social security and withholding taxes having been deducted. The applicators did not send plaintiff a formal bill, but rather submitted to it a list showing the jobs performed in that week and the amount owed by plaintiff for each job based on the number of squares applied.

30. Tbe applicator either worked alone or with, an associate applicator of his own choice. The compensation paid for a job was divided between associate applicators in accordance with the arrangement between them, and the plaintiff did not participate in determining the arrangement between them. The applicators, if they chose, hired their own helpers and determined their pay, hours and working conditions without interference by plaintiff. Usually, the helper was paid directly by the plaintiff by check and in an amount specified by the applicator, the plaintiff having no voice in the amount of compensation a helper received. The amount the plaintiff paid the helper was taken from the amount of compensation due from the plaintiff to the applicator on the specific job on which the helper was employed. The check issued by plaintiff to the helper was in a net amount, social security and withholding taxes having been deducted.

31. (a) After completion of a job, if the work proved to be unsatisfactory the applicator was required to go back and repair the work without additional compensation if he was still performing jobs for the plaintiff.

(b) In the event the customer complained about the quality of the workmanship directly to the applicator before a job was completed, the applicator usually corrected it himself. For unless the customer was satisfied he would not give the applicator a signed completion slip or the check in payment for the job and usually the applicator was not paid by the plaintiff until he brought in the completion certificate signed by the customer or the customer’s check. See finding 29.

32. (a) The applicators were free to and did on occasion contract directly with one of plaintiff’s customers for some comparatively minor home repair or alteration work not covered by plaintiff’s contract or work sheet, such as the removal and replacement of steps or doors, or construction of an additional door. In such event, the applicator was compensated directly by the customer without intervention by the plaintiff.

(b) In the event the additional work not covered by the contract or work sheet was of a major nature and was of a kind performed by plaintiff, it was understood that the applicator would notify the plaintiff who would then send out a salesman to sell the job. If the job involved carpentry work, the applicator, in such circumstances, was usually asked by the plaintiff to quote a price for doing the work. In the event such additional work was not of a kind performed by plaintiff, it was understood that the applicator was free to contract directly with plaintiff’s customer to perform that work and to be compensated directly by the customer without intervention by the plaintiff.

(c) In the event an applicator was performing a job for plaintiff and received a lead on a new job of a type performed by plaintiff, he would turn the lead over to the plaintiff who would then send out a salesman to sell the job. Ordinarily, the applicator did not receive any bonus or commission for reporting the lead. However, on occasion, if the job was sold, he was paid by plaintiff a token commission of $10.00 or $15.00. The applicators made it a practice to turn over leads emanating from jobs to the particular firm for whom the work was then being performed rather than to do the work on these new jobs on their own account. They were of the view that if they proceeded in such circumstances to take on such new job on their own account rather than to turn the lead over to the firm, they might not obtain further appli-cating work from that firm. They also felt it was contrary to business ethics to do the work on their own in such cases.

33. Since all applicating work was on a job-to-job basis (see finding 22), there was no understanding between the applicators and plaintiff that an applicator would get a definite number of jobs or that the applicator would perform a certain number of jobs. However, there were seven or eight “regulars” who could be looked to by plaintiff in assigning work sheets throughout the year, and these “regulars” spent most of their time during the period in question in performing applicating jobs for plaintiff. In the intervals between doing such jobs, they performed similar work for other companies. Ordinarily, when the plaintiff had only one job available and several applicators including a “regular” sought the job, the plaintiff gave it to the “regular”. The vast majority of applicators came and went. That is to say, they usually were given two or three consecutive jobs by the plaintiff. Following this they performed applicating jobs for plaintiff’s competitors and then returned to plaintiff’s office seeking further jobs. There was no understanding that the applicators would perform jobs for the plaintiff in any certain sequence; this was a matter within the individual applicator’s discretion.

34. Between jobs for plaintiff, applicators were free not only to perform jobs for competitors of plaintiff but to perform contract jobs on their own account for homeowners. Some applicators performed such contract jobs on their own account, while others did not seek such work.

35. Plaintiff never terminated his arrangement with an applicator during the progress of a job. If not satisfied with an applicator’s work, plaintiff refrained from offering him another work sheet. The applicator terminated or suspended his relationship with the plaintiff without notice by rejecting or failing to apply for another job.

38.The applicators were not members of any labor union, and plaintiff’s dealings with them were on an individual basis. Plaintiff had no agreement which entitled it to a preferred call on the time and services of the applicators.

37. The plaintiff placed advertisements in newspapers and the classified section of the local telephone directory which stated, among other things, that its siding was “applied by expert insured workmen”.

38. The applicators did not advertise in the newspapers or the classified section of the local telephone directory. They did not have business cards or a separate place of business and they did not file federal self-employment tax returns with the Internal Revenue Service.

39. The plaintiff, on occasion, placed a sign at the job site which stated that it was doing the work. Thus, its sign sometimes stated: “Lifewall Aluminum Siding, applied by Leo M. Rayhill Company” or “Another improvement by the Leo M. Rayhill Company”. There was no indication on the sign that a specific applicator was doing the work, nor did the applicators put up a sign at the job site indicating that they were doing the work.

40. The laws of the State of New York require that anyone transacting business under an assumed name, designation or style file with the county clerk a certificate setting forth the name under which the business is to be conducted and the true name of the persons transacting the business. There is no indication in the record that any of the applicators whose status is presently at issue performed jobs under an assumed or fictitious name, designation or style, or filed such certificate with the county clerk.

41. The applicators whose status is presently at issue did not carry any property damage, public liability or workmen’s compensation insurance.

42. The plaintiff had public liability and property damage insurance coverage for accidents or damages caused by the work done by the applicators. Plaintiff represented in the policy (i) that it had no independent contractors at the inception of its policy, and (ii) that the applicators were covered under the generic description “Boofing — all kinds— including yard employees”.

43. (a) The plaintiff was and is enrolled under and paid contributions in behalf of the applicators to the Workmen’s Compensation Program of the State of New York. Applicators who were injured while performing applicating jobs for plaintiff received the benefits provided by that program.

(b) The plaintiff was and is enrolled under and paid contributions in behalf of its salesmen to the Workmen’s Compensation Program of the State of New York.

(c) The plaintiff also was originally enrolled under the New York State Unemployment Insurance Program with respect to the applicators. An application to the New York State Department of Labor resulted in a refund to plaintiff of the contributions so paid as the result of a decision by a referee of the Department’s Unemployment Insurance Section, on November 8, 1961, after an administrative hearing, that the applicators were not employees within the meaning of the State statute.

44. In the course of trial, the government conceded that James B. Beynolds, one of the applicators whose status was initially in issue, was an independent contractor. Beynolds performed services for plaintiff in the manner described in these findings. However, his relationship with plaintiff and working conditions differed from the other applicators in the following respects: (1) he told the plaintiff before he took his first job from plaintiff that he was an independent contractor and that he did not want any federal taxes withheld; (2) he complained when withholding and social security taxes were deducted from his first check and plaintiff did not withhold thereafter; (3) he paid his own helpers; (4) he registered with the county as an independent contractor trading under an assumed name; (5) he carried his own public liability and compensation insurance; (6) his truck, which was always at the job site, had a sign which read “James R. Reynolds, d/b/a General Construction Co.” and gave his address and telephone number.

45. On the basis of the total situation, the record establishes that the plaintiff did not have the right under the arrangement to control the maimer and method in which the applicators performed the work, but had the right to control only the result to be accomplished.

46. By agreement the trial was limited to the issues of law and fact relating to the right of the plaintiff to recover, reserving the determination of the amount of recovery, if any, for further proceedings.

CONCLUSION OE LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover and judgment is entered to that effect. Computation of the amount of recovery will be determined pursuant to Rule 47 (c).

In accordance with the opinion of the court, 'a memorandum report of the commissioner and a stipulation of the parties, it was ordered on October 17, 1966, that judgment for the plaintiffs be entered for $881.76, together with statutory interest. 
      
       The opinion, findings of fact and recommended conclusion of law are submitted under the order of reference and Rule 57(a).
     
      
       Succeeding subsections include under the coverage of the Act as employees persons engaged in a variety of occupations (none of which are relevant here), such as agents or commission drivers distributing specified products, full-time life insurance salesmen, certain homemakers and traveling salesmen. Applicators were not thus included.
     
      
       The legislative history of these provisions is considered in Illinois Tri-Seal Products, Inc., et al. v. United States, 173 Ct. Cl. 499, 512-18, 353 F. 2d 216, 224-28 (1965).
     
      
       Tile fact that It was understood that the applicators would turn over to plaintiff leads on new jobs emanating from wort performed for plaintiff and thus would not compete with plaintiff for this business might have antitrust significance but would seem to have little bearing on the problem here.
     
      
       “It Is not determinative that the parties believe or disbelieve that the relation of master and servant exists, except insofar as such belief indicates an assumption of control by the one and submission to control by the other * * Restatement of the Law, Agency 2d, § 220, p. 492. See also Bartels v. Birmingham, 332 U.S. 126 (1947,). The Restatement presents the following Illustrations (ibid) :
      “10. A, employed by a taxi company, is sent by P, his employer, to drive B from X to T, and it is agreed between A, P, and B that for the purposes of the trip A Is to be B’s servant, although B is to exercise no more control over A’s conduct than is normal in the ordinary case of passengers in taxicahs. A is not B’s servant.
      “11. A is employed by P as resident cook for his household under an agreement in which P promises that he will in no way interfere with A’s conduct in preparing the food. A is P’s servant.”
     
      
       This test consists of an analysis of the facts to establish (1) the character of the person’s work; (&) the extent to which the worker Is engaged in a separate calling; (3) how continuous or intermittent the work is; (4) whether the work is temporary or permanent; (5) the importance of the work to the employer’s business; and (6) the character of the relation to determine whether or not the particular employment should carry its own accident burden. The existence or absence of an employment relationship may be determined on the basis of these factors without regard to whether or not the principal has the right to control the manner and method of the work being done. See Paly v. Lane Brush Co. 174 N.Y.S. 2d 205 (App. Div. 1958).
     
      
       In Edwards v. United States, 144 Ct. Cl. 158, 165, 168 F. Supp. 955, 958-59 (1958) the government made a contention similar to one it makes here that the fact that the plaintiff was enrolled under and paid contributions to the State industrial and unemployment programs had a bearing on the employee status of the applicator. This court pointed out that “Following the view taken in Dimmitt-Rickhoff-Bayer Real Estate Co. v. Finnegan, 179 F. 2d 882, we feel that fact is not decisive in view of the whole situation herein presented.” (ibid.)
     
      
       The Tax Court is without jurisdiction in respect of FICA and FUTA taxes; its jurisdiction generally is limited to income, estate and gift taxes. See 26 U.S.C. § 7442 (1958 ed.).
     
      
       This conclusion coincides with that previously reached by this court on the basis of facts that were virtually identical with those present here. Edwards v. United States, 144 Ct. Cl. 158, 168 F. Supp. 955 (1958). The conclusion is also in harmony with that reached by a number of other courts which likewise held that the applicators there involved — who worked under essentially similar arrangements to those described here — were not employees for federal tax purposes. See cases cited in Illinois Tri-Seal Products, Inc. v United States, supra, pp. 522-24, 353 F. 2d at pp. 231-32.
     