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B-143029, MAR. 24, 1961

B-143029 Mar 24, 1961
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THAT RETIREMENT ANNUITY SHOULD HAVE BEEN DEDUCTED PURSUANT TO THE PROVISIONS OF SECTION 13 (B) OF THE CIVIL SERVICE RETIREMENT ACT FROM THE AMOUNT PAID TO YOU UNDER YOUR CONTRACTS OF EMPLOYMENT WITH THE VETERANS ADMINISTRATION. A MAJOR FACTOR IN DETERMINING WHETHER A PERSON IS AN INDEPENDENT CONTRACTOR OR IS EMPLOYED UNDER A PERSONAL SERVICE CONTRACT IN AN EMPLOYER -EMPLOYEE RELATIONSHIP IS THE METHOD BY WHICH HE IS COMPENSATED. THESE 17 CONTRACTS SPECIFIED THE RATE OF PRODUCTION EXPECTED AND THE SPECIFIC HOURS YOU WERE TO WORK. THE WORK WAS ASSIGNED AS REQUIRED BY THE GOVERNMENT AND WAS NOT ON A PER JOB BASIS. YOU SAY THAT OTHER THAN THE ASSIGNMENTS OF CASES FOR AUDITING AND ESTABLISHING THE "REASONABLE VALUE" THERE WAS NO SUPERVISION OF YOUR WORK.

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B-143029, MAR. 24, 1961

TO MR. LOUIS J. SIMPSON:

YOUR LETTER OF NOVEMBER 21, 1960, WITH ENCLOSURE, REQUESTS RECONSIDERATION OF OUR DECISION OF SEPTEMBER 28, 1960, TO THE FORMER ADMINISTRATOR, VETERANS ADMINISTRATION, THAT RETIREMENT ANNUITY SHOULD HAVE BEEN DEDUCTED PURSUANT TO THE PROVISIONS OF SECTION 13 (B) OF THE CIVIL SERVICE RETIREMENT ACT FROM THE AMOUNT PAID TO YOU UNDER YOUR CONTRACTS OF EMPLOYMENT WITH THE VETERANS ADMINISTRATION, SINCE PERFORMANCE OF THE CONTRACTS REQUIRED AN EMPLOYER-EMPLOYEE RELATIONSHIP RATHER THAN THAT OF AN INDEPENDENT CONTRACTOR.

A MAJOR FACTOR IN DETERMINING WHETHER A PERSON IS AN INDEPENDENT CONTRACTOR OR IS EMPLOYED UNDER A PERSONAL SERVICE CONTRACT IN AN EMPLOYER -EMPLOYEE RELATIONSHIP IS THE METHOD BY WHICH HE IS COMPENSATED. THE INDIVIDUAL MAY BE PAID (1) AN AGREED LUMP-SUM FOR PREPARING A REPORT OR COMPLETING SOME PROJECT; (2) A FEE FOR A GIVEN SERVICE WITHOUT STRICT REGARD FOR THE TIME ELEMENT; OR (3) A FIXED RATE OF COMPENSATION, GENERALLY A RATE PER DAY, ON AN ACTUALLY EMPLOYED BASIS. THE FIRST TWO METHODS GENERALLY DO NOT CREATE AN EMPLOYER-EMPLOYEE RELATIONSHIP. THE THIRD METHOD USUALLY DOES. B 125559, JULY 30, 1957.

OF THE 18 CONTRACTS, 15 PROVIDED FOR PAYMENT ON A PER DIEM BASIS, AND TWO FOR A SUM AVERAGING $25 PER DAY. THESE 17 CONTRACTS SPECIFIED THE RATE OF PRODUCTION EXPECTED AND THE SPECIFIC HOURS YOU WERE TO WORK. THE WORK WAS ASSIGNED AS REQUIRED BY THE GOVERNMENT AND WAS NOT ON A PER JOB BASIS.

YOU SAY THAT OTHER THAN THE ASSIGNMENTS OF CASES FOR AUDITING AND ESTABLISHING THE "REASONABLE VALUE" THERE WAS NO SUPERVISION OF YOUR WORK, AND THAT THE WORK WAS DONE IN THE VETERANS ADMINISTRATION OFFICE FOR THE CONVENIENCE AND BENEFIT OF THE GOVERNMENT. THESE FACTS, HOWEVER, ARE NOT SUFFICIENT TO ESTABLISH YOU AS AN INDEPENDENT CONTRACTOR SINCE YOUR WORK WAS NOT DONE FOR A LUMP-SUM OR FIXED FEE ON A PER JOB BASIS WITHOUT STRICT REGARD FOR THE TIME ELEMENT. THE FACT THAT THE CONTRACTS WERE MADE ON DIFFERENT DATES, VARIED AS TO THE NUMBER OF DAYS OF WORK, AND WERE IRREGULAR IN THE INTERVALS BETWEEN ENGAGEMENTS DOES NOT AFFECT THE MATTER EITHER WAY. CONSEQUENTLY, WE ARE OF THE VIEW THAT THE 17 CONTRACTS ESTABLISHED AN EMPLOYER-EMPLOYEE RELATIONSHIP RATHER THAN THAT OF AN INDEPENDENT CONTRACTOR.

WE AGREE THAT YOU ACTED AS AN INDEPENDENT CONTRACTOR UNDER THE CONTRACT DATED MAY 29, 1959, FOR APPRAISAL OF CERTAIN PROPERTY IN BRADY, TEXAS, AT A FIXED FEE OF $25. OUR OFFICE ARRIVED AT THE TOTAL OF 197 WORK DAYS IN STATING THE NOTICE OF EXCEPTION, WHICH INCLUDED ONE DAY, JUNE 1, FOR THIS CONTRACT, SINCE ALL WORK DAYS AVAILABLE FOR MAKING THE APPRAISAL AT BRADY WERE COVERED BY AND PAID FOR UNDER THE CONTRACT. THE EXCEPTION WAS TAKEN FOR $2,454.62, THE AMOUNT OF ANNUITY ALLOCABLE TO 197 DAYS OF EMPLOYMENT. THE AMOUNT FOR WHICH YOU ARE LIABLE IS THAT PART OF THE ANNUITY ALLOCABLE FOR 196 DAYS, WHICH IS $2,442.16. THE ADMINISTRATOR, VETERANS ADMINISTRATION, IS BEING SO INFORMED TODAY.

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