In Uncategorized on 06/17/2020 at 16:51

Leticia C. Santos, 2020 T. C. Memo. 88, filed 6/17/20, runs an apartment and office cleaning service, using persons recruited “…through advertisements she posted in Brazilian hair salons and other businesses in Allston, Massachusetts.” 2020 T. C. Memo. 88, at p. 5.

I bet you didn’t know you could recruit apartment and office cleaners in Allston, MA, in Brazilian hair salons, either. And neither you nor I could, unless you speak Spanish or Portuguese. I don’t; Leticia does.

Howbeit, IRS wants to whang Leticia’s pate to the tune of $125K unpaid FICA/FUTA for the 50-some workers she paid over four (count ‘em, four) years at issue. Leticia had an accountant who provided 1099-MISCs to at least some of Leticia’s crew, but it’s unclear if any made their way to IRS as well.

Judge Ashford has all the factors, with the appropriate 1st Cir gloss thereon (see 2020 T. C. Memo. 88, pp. 11-12, footnote 9 for the ganze myceh, if I may use an arcane technical phrase). Leticia makes the cut.

“Petitioner’s role was more that of a dispatcher, acting as a financial and linguistic bridge or intermediary between her workers and the apartment complexes (and the property managers at those complexes). Petitioner directed her workers as to the result to be accomplished and expected the result to be done in accordance with the contracts’ specifications and in turn to the satisfaction of the property managers, but she otherwise allowed her workers to use their discretion as to the means and methods of accomplishing this result. Petitioner credibly testified that her workers (all of whom were experienced cleaners in their own right and thus needed no training) did not have to take any cleaning job she offered them; and when they did take such a job, they by and large traveled to the apartment complexes using their own or public transportation and performed the job at their own pace using their own cleaning supplies that they brought with them. Additionally, petitioner credibly testified that her workers were free to hire their own assistants and that they (not she) were responsible for paying these assistants. Petitioner also credibly testified that she would relay to her workers any special instructions with respect to a cleaning job from an apartment complex’s property manager because they by and large spoke only Portuguese or Spanish, languages that she also spoke, and she would rarely go to a property and supervise the cleaning or do a postcleaning inspection; the only “quality control” that she exercised was directing a worker after a cleaning job was finished and the worker had already left the property to return to the property if the property manager contacted her indicating that the cleaning was deficient in some respect.” 2020 T. C. Memo. 88, at pp. 13-14 (footnote omitted).

Leticia had to carry general liability and workers’ comp, because no property owner or manager in their right mind would let anyone go cleaning on their premises without. But that is a relationship between Leticia and her employers, not between Leticia and her non-employees.

Leticia’s crew were free to take other jobs. They had no guaranteed minimum pay or number of jobs, and since they could take other jobs, Leticia never had to fire any of them. Like certain dinner guests, if they didn’t suit, they didn’t get invited back.

Leticia wins.




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