The IRS further noted while the question of whether an officer of a corporation is performing his duty as an officer or an independent contractor is a question of fact; in this case, the duties of the two officers fell within the scope of a corporate officer. Rev.Rel. 82-83, 1982-18 C.B. 151 ( citing Royal Theatre Corp. v.United States, 66 F. Supp. 301 [D.Kan. 1946]). The corporation by construing payments as "draws" and not "salary" did not remove the officers' status from that of an employee since the officers made fundamental decisions regarding the operation of the corporation-decisions not ordinarily made by an independent contractor.
Sage v. Dillard, 54 Ky. 340; Trustees of Andover Theological Seminary v. Visitors of Theological Institution in Phillips Academy in Andover, 148 N.E. l.c. 915; Printing House for the Blind v. Louisiana Board of Trustees, 104 U.S. 711, 26 L.Ed. 902; Tampa Waterworks Co. v. City of Tampa, 199 U.S. 241, 50 L.Ed. 170. (5) The contracts and agreements require the Board of Directors to surrender the operation of the Barnard Hospital to the Administrator of Barnes Hospital, over whom the Board has no power of dismissal. McQuade v. Stoneham, 203 N.Y. 323, 189 N.E. 234; Long Park, Inc., v. Trenton-New Brunswick Theatres Co., 297 N.Y. 174, 77 N.E.2d 633; Allen v. McKean, 1 Sumn. 276, 1 Fed. Cas. 489; Lowell-Hoit Co. v. Detig, 320 Ill. App. 179, 50 N.E.2d 602; Royal Theatre Corp. v. United States. 66 F. Supp. 301. (6) The contracts and agreements deprive the Board of Directors of control over Barnard's funds, which are resigned to hotchpot with the funds of other institutions. Shattuck v. Wood Memorial Home, Inc., 319 Mass. 444, 66 N.E.2d 568; State ex rel. Pittman v. Adams, 44 Mo. l.c. 579; The Trustees of Dartmouth College v. Woodward, 4 Wheat. 518; Sherman Ellis v. Indiana Mutual Casualty Co., 41 F.2d 588, certiorari denied 282 U.S. 893; Manson v. Curtis, 223 N.Y. 313, 119 N.E. 559; 2 Fletcher, Cyclopedia Corporations, sec. 375. (7) Under the contracts and agreements, the Board of Directors has attempted to surrender the broad policy making authority vested in it by the charter.
Thus, in determining the existence of employer-employee relationships for social security tax purposes, these fictions may be penetrated by judicial inquiry to ascertain the reality of the situation. Royal Theatre Corporation, Inc. v. United States, 66 F. Supp. 301 (D.Kan. 1946). We distinguish Courtney and Courtney, Inc., supra, relied upon by appellee, for this very reason.
Such restrictions and limitations upon the powers of the directors are clearly in violation of section 27 of the General Corporation Law of this state and the New Jersey statute. [Citing cases.]" (See, also, Royal Theatre Corp. v. United States, 66 F. Supp. 301; Sherman Ellis v. Indiana Mutual Casualty Co., 41 F.2d 588.) These statutes provided: "The business of a corporation shall be managed by its board of directors."