*2956 Compensation received by the petitioner for professional services rendered as architect for the State Board of Control of Minnesotaheld not to be exempt from taxation under section 1211 of the Revenue Act of 1926.
*605 The respondent has asserted deficiencies as follows:
| 1922 | $5,204.05 |
| 1923 | 4,422.55 |
| 1924 | 4,796.23 |
| 1925 | 302.48 |
| 14,725.31 |
Only such parts of the deficiencies are in controversy as result from the respondent's determination that compensation received by petitioner for services rendered as architect for the State Board of Control of Minnesota is not exempt income under section 1211 of the Revenue Act of 1926.
*606 FINDINGS OF FACT.
The petitioner is an architect, residing in St. Paul, Minn. In 1901 petitioner entered into a contract with the State Board of Control of Minnesota whereby he was employed in a professional capacity. The contract of employment was renewed from time to time, the terms remaining substantially the same. The contract provides, in part, as follows:
WHEREAS, It is among*2957 the duties of the State Board of Control to erect buildings and make repairs and betterments to buildings at the several state institutions under its management, by reason whereof it is necessary to have and retain the services of an architect,
NOW, THEREFORE, This agreement, made and entered into this 14th day of February 1922, by and between CLARENCE H. JOHNSTON, Architect, of St. Paul, Minnesota, party of the first part, and the STATE OF MINNESOTA by the State Board of Control, party of the second part,
WITNESSETH, That the said first party, for the consideration and on the conditions hereinafter stated, promises, undertakes, and agrees to serve said second party as architect, under the direction of said State Board of Control, for the next ensuing three years from January 2, 1922, and, as such architect, to prepare and furnish as needed, in a skillful and proper manner, suitable and necessary drawings, plans, specifications, details, and other architectural work, for such buildings, building repairs and betterments, as are to be constructed under the direction of said Board, and for which appropriations have been made or shall hereafter be made; and to supervise the construction*2958 thereof so far as required, which supervision shall include the proper location of buildings before work of construction begins, an inspection and report to the Board by himself or by his properly qualified agent at least once each month during construction, and a final inspection and report to the Board when such construction is completed; and to consult and advise with said Board in relation to all said building matters from time to time as said Board may desire.
It is understood and agreed that the first party shall provide and furnish five (5) full sets of drawings and specifications with each job, and that in case more copies are required they shall be paid for as extra by said Board or by the bidders.
For said service so to be rendered said second party promises and agrees to pay said first party a commission of three (3) per cent of the cost of said
PROVIDED, That for such work as is done by day labor and institution help
PROVIDED, That for such work as is done by.day labor and institution help and for which said party of the second part furnishes the required labor and material, and also for such work as is done partly by contract and partly by day labor and institution*2959 help and for which the cost of labor and material for that portion of the work done by day labor and institution help shall be equal to at least fifty (50) per cent of the total cost of the general construction work, the commission paid to the first party shall be four (4) per cent of the cost of said work; and
PROVIDED FURTHER, That on the amounts expended in carrying out plans prepared by the state consulting engineers, on which a commission is paid said engineers, the commission paid to the first party shall be two (2) per cent of such amounts, it being understood that the relations between the architect and engineers on all new building work in which they are associated shall be *607 cooperative, the architect in all cases being chief adviser and consultant and his decision final and conclusive except where differences of opinion exist between them in issues relating to their work, all such differences to be referred to the State Board of Control for settlement; and
PROVIDED FURTHER, That in case of minor additions to existing buildings and in the case of special inspections, reports, investigations, etc., pertaining to existing buildings, and such other work as cannot*2960 with mutual justice be compensated for on a percentage basis, the architect shall receive fifteen (15) dollars per day for his own time on said special work and ten (10) dollars per day for the time of any of his employes engaged on said special work.
Superintending inspections, as required, shall be paid for at the rate of fifteen (15) dollars per day in the case of the architect and ten (10) dollars per day in the case of any of his employes for the time actually spent in such inspections.
Services of first party in adjusting fire losses shall be paid at the rate of twenty (20) dollars per day.
Traveling expenses and telephone tolls relating to the public work covered hereby shall be paid by said second party.
The above contract was renewed in all material respects to cover the year ending June 30, 1926.
The petitioner maintained his own office and employed a staff of architects and clerical help numbering from ten to eighteen. Work under the state contract was done by petitioner or by some of his employees. During the years 1922, 1923, and 1925, his net business income from sources other than the State was $22,393, $10,968, and $22,319.99, respectively.
OPINION.
*2961 LANSDON: The only question to be determined in this proceeding is whether petitioner was an employee of the State of Minnesota within the meaning of section 1211 of the Revenue Act of 1926, which provides:
Any taxes imposed by the Revenue Act of 1924 or prior revenue Acts upon any individual in respect of amounts received by him as compensation for personal services as an officer of employee of any State or political subdivision thereof (except to the extent that such compensation is paid by the United States Government directly or indirectly), shall, subject to the statutory period of limitations properly applicable thereto, be abated, credited, or refunded.
The petitioner does not contend that he was an officer of the State, but alleges that he was an employee of the Board of Control of Minnesota which was created and exists by virtue of the following provisions of the General Statutes of Minnesota, 1913:
Section 4001: ORGANIZATION - The state board of control shall consist of three members, appointed by the Governor with the consent of the Senate, each for a term of six years, and until their successors qualify. * * *
Section 4003: OFFICE, SEAL, SUPPLIES, ETC. - Said*2962 Board shall be provided with suitable furnished offices at the seat of government, and may procure all books, blanks, stationery, postage, and other office supplies required in the transaction *608 of its business. It shall employ an architect, a secretary, and other needed office help. It shall have an official seal, and authenticate therewith all commissions, discharges, paroles, and other like documents. All contracts made by the Board shall be in writing, signed by its chairman. (1860).
Section 4031: PLANS AND SPECIFICATIONS - LIMITATIONS - Said board shall prepare plans for all improvements or buildings costing more than one thousand dollars, for which it may recommend an appropriation. Such plans shall be paid for out of any money in the state treasury not otherwise appropriated, but when an appropriation has been made for the purpose of constructing such building, the fund from which payment for plans was made shall be reimbursed from such appropriation and not part of the balance shall be expended until the board has secured suitable plans and specifications, prepared by a competent architect, and accompanied by a detailed statement of the amount, quality and*2963 description of all material and labor required for the completion of the work; * * *
It is the petitioner's contention that the statute authorizing the Board of Control "to employ" an architect is conclusive of the question whether petitioner was an employee or an independent contractor. We do not agree with petitioner. Whether or not he was an employee within the meaning of the Revenue Act depends upon the facts and the provisions of the contract. "Employ" means to infold, involve, implicate, or engage. To employ "is to make use of the services of; to have or keep at work; to give employment to; to intrust with some duty or behest." Webster's New International Dictionary. An independent contractor is employed when his services are engaged, but he is not an employee within the meaning of section 1211. In , where we held that a civil engineer who had performed services for political subdivisions of the State of California was not an officer or employee of the State or its political subdivisions within the meaning of section 1211, the resolution adopted by the Trustees of the Reclamation District provided "that Engineer Fred H. Tibbetts, *2964 be, and he is hereby, employed." In , we held that an architect engaged by contracts between himself and the Commonwealth of Pennsylvania and the cities of Albany and New York, N.Y., was not an officer or employee within the meaning of section 1211. The contract in that case provided for the "employment" of the decedent. In , the ordinance passed by the city council of the City of Chicago authorized the board of local improvements "to employ" real estate experts. The Court of Claims held that the plaintiff was an independent contractor.
The facts in the instant case are substantially different from those in ; ; ; . Each of those cases contains facts characteristic of the relationship of employer and employee.
*609 Here, on the other hand, petitioner maintained his own office; employed from ten to eighteen assistants; was free to accept other employment; received, in*2965 most instances, a certain percentage of the cost of the buildings; was required to give no certain amount of time to the State; and was only bound to produce a specific result by using his best professional skill. Income from outside sources amounted to $22,393, $10,968, and $22,319.99, respectively, for the years 1922, 1923, and 1925.
We are of the opinion that petitioner was an independent contractor, and that the respondent correctly included the compensation received from the State of Minnesota in taxable income. ; ; ;; ; ;
Decision will be entered for the respondent.