Tobin v. Commissioner

*1262OPINION.

The petitioner contends that he was an employee of the State of New York, and that therefore his salary received as such employee was not subject to Federal income tax. For a history of the provisions of the various revenue acts relating to the taxability of the compensation of state employees, see George W. Fuller, 9 B. T. A. 708. It will be noted that the petitioner was engaged to do certain routine work for the commission. He was not to perform any specific task or to accomplish any definite result. Rather, he was to do whatever work was assigned to him by the commission. His work was continuous and in a sense was permanent. Clearly, he was subject to the control of the commission, and although he *1263was to use his skill in performing the various duties assigned to him, under the circumstances we hold that he was an employee of the State and not an independent contractor, and therefore, the salary which he received from the State is not subject to Federal income tax because to tax such income would be contrary to the law that the Federal Government may not tax the instrumentalities of a State. John E. Matthews, 8 B. T. A. 209; affirmed in principle, 29 Fed. (2d) 892; B. F. Martin, 12 B. T. A. 267; W. B. Mathews, 13 B. T. A. 1133; F. M. Livezey, 15 B. T. A. 806. There is no deficiency.

Judgment will be entered for the petitioner.