Plaintiff filed petition for rehearing, claiming that the opinion erred in two particulars: First, in the statement that there was no question raised as to Winget being excluded from benefits by provisions (a), (b) and (c) of Sec. 19(j)(5) of the Act; Second, that we did not discuss plaintiff's liability to pay taxes under the Act on all its agents in Utah operating under contract 72, or other contracts substantially similar, except for varying amounts of commissions. The court deems it advisable to note briefly these points. As to the first point, we quote now from page 31 of the plaintiff's original brief:
"In conclusion we submit that these salesmen are not rendering services `for wages or under any contract of hire' under our Unemployment Act, as analyzed in the Fuller Brush Case. It neverbecame necessary to pass upon the question of whether they areexcluded by Sec. 19(j)(5)(a)(b) and (c)." (Italics added.)
In the brief on petition for rehearing, discussing this matter, plaintiff says:
"Moreover, plaintiff definitely feels that if a hearing wereheld by the commission at which each of the company's agents, concerning whom the Commission is threatening to impose tax liability on the plaintiff, were to testify fully as to his actual operations under the contract, that it would be foundthat the majority or all of these agents would satisfy the A, B, and C tests." (Italics added.)
For us to have passed upon the case of each of these agents before the commission did so, or made any order *Page 198 concerning them would be putting the cart before the horse, or the saddle on backwards. Inasmuch as it appears that plaintiff will be required to meet that problem before the Commission on a question on which there was evidently some dispute when this case was heard by the department, we note the problem involved in both questions, somewhat for the guidance of the parties and the department.
We again summarize the holdings of all our prior decisions thus: The Unemployment Compensation Act includes within its operations many relationships not included in the 1-3 common-law relationship of master and servant; under the scope of the Act, relationships are either "service relationships" or "non-service relationships"; all "service relationships" constitute "employment" as that term is defined in the act; a "service relationship" exists where one renders services for another for "wages or under a contract of hire"; when it has been determined that a "service relationship" exists, that is, that one performed personal service for another for wages or under a contract of hire, the provisions of Sec. 19(j) (5) are invoked to determine whether or not the service relationship found to exist is one which is included within or one which is excluded from the operations of the Act. If such service relationship is one which meets, conjointly, the provisions of (a)(b) and (c) of Sec. 19(j)(5) the employment is filtered or culled out from the operations of the act, and benefits cannot be received, nor does tax liability exist. If, however, the service relationship is one that does not meet conjointly the provisions of (a)(b) and (c) of 19(j)(5) it remains as employment within the act and the employer is liable for the tax or contribution thereon.
We held in the opinion rendered that contract 72 created a service relationship between the salesmen and the company. We likewise held in effect that Winget, the salesman there involved, was not filtered out of employment within the act by the provisions of Section 19(j)(5). *Page 199
As to whether every salesman who operates under contract 72, or a substantially similar contract, is one on whom the company must pay the tax we cannot say. We do say it creates a service relationship which puts one in employment under 4 the act, and therefore subjects the employing unit to a tax thereon, unless it is taken out by a conjunction of the provisions of (a)(b) and (c) of Section 19(j)(5). As stated by plaintiff in its brief quoted above, that may depend upon the facts of each particular case.
Rehearing denied.
McDONOUGH, J., concurs.