mining whether the elapse of certain periods of time between one spouse's sale and the other's purchase of like securities on the Exchange is of great enough importance in itself to break the continuity of the investment and make § 24 (b) inapplicable.

Precisely the same difficulty may arise, however, in the case of an intra-family transfer through an individual intermediary, who, by pre-arrangement, buys from one spouse at the market price and a short time later sells the identical certificates to the other at the price prevailing at the time of sale. The omission of a prescribed time interval negates the applicability of § 24 (b) to the former type of transfer no more than it does to the latter. But if we should hold that it negated both, we would have converted the section into a mere trap for the unwary."

Petitioners also urge that, whatever may have been Congress' intent, its designation in § 24 (b) of sales "between" members of a family is not adequate to comprehend the transactions in this case, which consisted only of a sale of stock by one of the petitioners to an unknown stranger, and the purchase of different certificates of stock by the other petitioner, presumably from another stranger.

We can understand how this phraseology, if construed literally and out of context, might be thought to mean

17 We have noted petitioners' suggestion that a taxpayer is assured, under the wash sales provisions, of the right to deduct the loss incurred on a sale of securities, even though he himself buys similar securities thirty-one days later; and that he should certainly not be precluded by § 24 (b) from claiming a similar loss if the taxpayer's spouse, instead of the taxpayer, makes the purchase under the same circumstances. We do not feel impelled to comment on these propositions, however, in a case in which the sale and purchase were practically simultaneous and the net onsideration received by one spouse and that paid by the other differed only in the amount of brokers' commissions and excise taxes.

only direct intra-family transfers. But petitioners concede that the express statutory reference to sales made "directly or indirectly" precludes that construction. Moreover, we can discover in this language no implication whatsoever that an indirect intra-family sale of fungibles is outside the statute unless the units sold by one spouse and those bought by the other are identical. Indeed, if we accepted petitioners' construction of the statute, we think we would be reading into it a crippling exception which is not there.

Finally, we must reject petitioners' assertion that the Dobson rule 18 controls this case. The Tax Court found the facts as we stated them, and then overruled the Commissioner's determination because it thought that § 24 (b) had no application to a taxpayer's sale of securities on the Exchange to an unknown purchaser, regardless of what other circumstances accompanied the sale. We have decided otherwise, and on our construction of the statute, and the conceded facts, the Tax Court could not have reached a result contrary to our own.19

Affirmed.

MR. JUSTICE BURTON took no part in the consideration or decision of these cases.

18 Dobson v. Commissioner, 320 U. S. 489.

19 Cf. Trust of Bingham v. Commissioner, 325 U. S. 365.

UNITED STATES v. SILK, DOING BUSINESS AS ALBERT SILK COAL CO.

NO. 312. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE TENTH CIRCUIT.*

Argued March 10, 1947.-Decided June 16, 1947.

1. In determining whether particular workers are independent contractors or "employees" within the meaning of the Social Security Act, the same rules are applicable as were applied by this Court to the National Labor Relations Act in Labor Board v. Hearst Publications, 322 U. S. 111. Pp. 713-714.

2. Unloaders of coal who provide their own tools, work only when they wish to work and are paid an agreed price per ton to unload coal from railroad cars, held, in the circumstances of this case, to be "employees" within the meaning of the Social Security Act. Pp. 706, 716-718.

3. Truck drivers who own their own trucks, pay the expenses of their operation, employ and pay their own helpers and receive compensation on a piece-work or percentage basis, held, in the circumstances of these cases, to be independent contractors and not "employees" within the meaning of the Social Security Act. Pp. 706710, 718-719.

155 F. 2d 356, affirmed in part and reversed in part. 156 F.2d 412, affirmed.

No. 312. The District Court granted respondents a judgment for a refund of social security taxes. The Circuit Court of Appeals affirmed. 155 F. 2d 356. This Court granted certiorari. 329 U. S. 702. Affirmed in part and reversed in part, p. 719.

No. 673. The District Court granted respondent a judgment for a refund of social security taxes. The Circuit Court of Appeals affirmed. 156 F. 2d 412. This Court granted certiorari. 329 U. S. 709. Affirmed, p. 719.

*Together with No. 673, Harrison, Collector of Internal Revenue, v. Greyvan Lines, Inc., on certiorari to the Circuit Court of Appeals for the Seventh Circuit, argued March 10, 11, 1947.

Robert L. Stern argued the cause for petitioners. With him on the briefs were Acting Solicitor General Washington, Sewall Key and Lyle M. Turner. Jack B. Tate was also with them on the brief in No. 312.

Ralph F. Glenn argued the cause for respondent in No. 312. With him on the brief were Robert Stone and Warren W. Shaw.

Wilbur E. Benoy argued the cause for respondent in No. 673. With him on the brief were Arthur M. Sebastian and Robert Driscoll.

MR. JUSTICE REED delivered the opinion of the Court.

We consider together the above two cases. Both involve suits to recover sums exacted from businesses by the Commissioner of Internal Revenue as employment taxes on employers under the Social Security Act.1 In both instances the taxes were collected on assessments made administratively by the Commissioner because he concluded the persons here involved were employees of the taxpayers. Both cases turn on a determination as to whether the workers involved were employees under that Act or whether they were independent contractors. Writs of certiorari were granted, 329 U. S. 702 and 329 U. S. 709, because of the general importance in the collection of social security taxes of deciding what are the applicable standards for the determination of employees under the Act. Varying standards have been applied in the federal courts.2

1 Titles VIII and IX, Social Security Act, 49 Stat. 636 and 639, as repealed in part 53 Stat. 1.

See Internal Revenue Code, chap. 9, subchap. A and C.

2 Texas Co. v. Higgins, 118 F. 2d 636; Jones v. Goodson, 121 F. 2d 176; Deecy Products Co. v. Welch, 124 F. 2d 592; American Oil Co. v. Fly, 135 F. 2d 491; Glenn v. Beard, 141 F. 2d 376; Magruder v. Yellow

Respondent in No. 312, Albert Silk, doing business as the Albert Silk Coal Co., sued the United States, petitioner, to recover taxes alleged to have been illegally assessed and collected from respondent for the years 1936 through 1939 under the Social Security Act. The taxes were levied on respondent as an employer of certain workmen some of whom were engaged in unloading railway coal cars and the others in making retail deliveries of coal by truck.

Respondent sells coal at retail in the city of Topeka, Kansas. His coalyard consists of two buildings, one for an office and the other a gathering place for workers, railroad tracks upon which carloads of coal are delivered by the railroad, and bins for the different types of coal. Respondent pays those who work as unloaders an agreed price per ton to unload coal from the railroad cars. These men come to the yard when and as they please and are assigned a car to unload and a place to put the coal. They furnish their own tools, work when they wish and work for others at will. One of these unloaders testified that he worked as regularly "as a man has to when he has to eat" but there was also testimony that some of the unloaders were floaters who came to the yard only intermittently.

Respondent owns no trucks himself but contracts with workers who own their own trucks to deliver coal at a uniform price per ton. This is paid to the trucker by the respondent out of the price he receives for the coal from the customer. When an order for coal is taken in the company office, a bell is rung which rings in the building used by the truckers. The truckers have voluntarily

Cab Co., 141 F. 2d 324; United States v. Mutual Trucking Co., 141 F. 2d 655; Glenn v. Standard Oil Co., 148 F. 2d 51, 53; McGowan v. Lazeroff, 148 F. 2d 512; United States v. Wholesale Oil Co., 154 F. 2d 745; United States v. Vogue, Inc., 145 F. 2d 609, 612; United States v. Aberdeen Aerie No. 24, 148 F. 2d 655, 658; Grace v. Magruder, 148 F.2d 679, 680-81; Nevins, Inc. v. Rothensies, 151 F. 2d 189.