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ARTISTS' SOCIAL SECURITY TAXES— Continued
beyond the mere incidence of taxes under social security legislation. Two such reasons are paramount :
(1) If A pays a tax w'hich is the proper responsibility of B, B cannot excuse himself by pleading A's payment. B, in that case, will in all likelihood be advised by the tax collector that over-payment by A does not inure to B's benefit in regard to his obligation under the law.
(2) Determination of who is the employer in a given situation, resolves the question of liability for the salaries of the various persons connected with the production of a broadcast, and liability for libel, literary piracy, violation of the right of privacy, and other liabilities arising out of the broadcast and the relationships of the various parties connected therewith.
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Application of the Statute
As the tax base is the employer-employee relationship, the basic test to be applied in determining the incidence of the tax is whether the performing artist is an independent contractor or an employee ; and if the latter, which of the persons falling within one of the four groups before mentioned is the employer.
Regulations of the Bureau of Internal Revenue define an independent contractor in these words :
"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.,, (Italics by author. ) The general test of the employee relationship is described by the Treasury Department as follows :
"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 to be 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." (Italics by author.) These definitions seem clear until we realize that the broadcasting station, program director, advertising agency and sponsor may all have some control over the results, details and means. The question, therefore, is how much control is necessary to constitute one of them the employer in a given situation.
Factors taken into consideration in determining whether there is an employeremployee or independent, contractor relationship, are:
1. Terms of payment (whether by the hour, piece or job) ;
2. Furnishing of supplies, materials, tools;
3. Right to hire and fire;
4. Right to control time and place of work ;
5. Providing of place to work;
6. Right to hire assistants, and responsibility for their payment;
7. Whether the work is part of the usual course of business of the person for whom service is performed ;
8. Whether the person performing is customarily engaged in an independently established trade or business doing this type of work.
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