liams v. United States, 126 F. 2d 129. The contract in that case was not "Form B" and did not contain any corresponding control clause. Two years later, the Commissioner of Internal Revenue issued mimeographs 5638, 1944-5-11651, and 5767, 1944-22-11889, 1944 Cum. Bull. 547-48. They were directed at the status of musicians and variety entertainers appearing in theatres, night clubs, restaurants and similar establishments. Collectors and others were therein advised that a "Form B" or similar contract with the entertainers made operators of amusement places liable as employers under the Social Security Act. In the absence of such a contract, that is, in reality, the absence of the control clause of "Form B," the entertainers, with "short-term engagements for a number of different operators" of amusement places, would be considered "independent contractors." The argument of respondents to support the administrative interpretation of the regulations is that the Government may accept the voluntary contractual arrangements of the amusement operators and entertainers to shift the tax burden from the band leaders to the operators.2 Cases are cited to support this position. All of these cases, however, involve the problem of corporate or association entity. They are not, pertinent upon the question of contracts to shift tax liability from one taxpayer to another wholly distinct and disconnected corporation

2 There is a contention that the contracts were coerced because the operators could not secure these musicians under other arrangements. We do not find it necessary to rely or pass upon that contention.

Edwards v. Chile Copper Co., 270 U. S. 452, 456; Burnet v. Commonwealth Improvement Co., 287 U. S. 415; New Colonial Ice Co. v. Helvering, 292 U. S. 435; Helvering v. Coleman-Gilbert Associates, 296 U. S. 369, 374; Higgins v. Smith, 308 U. S. 473, 477; Gray v. Powell, 314 U. S. 402; Moline Properties, Inc. v. Commissioner, 319 U. S. 436, 439; Interstate Transit Lines v. Commissioner, 319 U. S. 590; Schenley Corp. v. United States, 326 U. S. 432, 437.

DOUGLAS, J., dissenting.

332 U.S. or individual. We do not think that such a contractual shift authorizes the Commissioner to collect taxes from one not covered by the taxing statute. The interpretive rulings on the Regulations, referred to in this paragraph, do not have the force and effect of Treasury Decisions.* We are of the opinion that such administrative action goes beyond routine and exceeds the statutory power of the Commissioner. Social Security Board v. Nierotko, 327 U. S. 358, 369-70.

This brings us then to a determination of whether the members of a "name band" under the circumstances heretofore detailed are employees of the operator of the dance hall or of the leader. If the operator is the employer, the leader is also his employee.

We are of the opinion that the elements of employment mark the band leader as the employer in these cases. The leader organizes and trains the band. He selects the members. It is his musical skill and showmanship that determines the success or failure of the organization. The relations between him and the other members are permanent; those between the band and the operator are transient. Maintenance costs are a charge against the price received for the performance. He bears the loss or gains the profit after payment of the members' wages and the other band expenses.

The judgments of the Circuit Court of Appeals are reversed and those of the District Court are affirmed.

Reversed.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. JUSTICE MURPHY concur, dissenting.

As the opinion of the Court points out, the Form B contract involved in the present case was adopted, with the approval of the Commissioner of Internal Revenue,

*See 1944 Cum. Bull., notice, p. I.

126

DOUGLAS, J., dissenting.

after it had been held under an earlier form of contract that members of the orchestra were employees of the band leader. On the face of the prescnt contract the dance hall proprietor is the employer even under traditional concepts of master and servant. For he has all of the conventional earmarks of the entrepreneur-ownership, profit, loss, and control-if the provisions of the contract alone are considered. Then the requirements of the Social Security Act are satisfied. And to hold the dance hall proprietor liable for the tax is not to contract the coverage contemplated by the statutory scheme.

I think the tax collector should be entitled to take such private arrangements at their face. In other situations a taxpayer may not escape the tax consequences of the business arrangements which he makes on the grounds that they are fictional. The Government may "sustain or disregard the effect of the fiction as best serves the purposes of the tax statute." Higgins v. Smith, 308 U. S. 473, 477. That rule is not restricted in its application to the use by taxpayers of corporate or related devices to obtain tax advantages. It was applied in Gray v. Powell, 314 U. S. 402, where a railroad sought exemption from the Bituminous Coal Act by contending that the operations of one who appeared to be an independent contractor were in fact its operations. The Court in rejecting the contention said that "The choice of disregarding a deliberately chosen arrangement for conducting business affairs does not lie with the creator of the plan." Id., 414. I see no reason for creating an exception to that rule here. If the Government chooses to accept the contract on its face, the parties should be barred from showing that it conceals the real arrangement. Tax administration should not be so easily embarrassed.

Syllabus.

332 U.S.

FOSTER ET AL. v. ILLINOIS.

CERTIORARI TO THE SUPREME COURT OF ILLINOIS.

No. 540. Argued May 8, 1947.-Decided June 23, 1947.

1. In reviewing on writ of error a conviction for burglary and larceny in which it was claimed that the right to counsel had been denied contrary to the Fourteenth Amendment, a state supreme court was confined by local practice to the common law record. That record contained no specific recital of an offer of counsel; but it showed that the defendant was a mature man and that, before accepting his plea of guilty, the trial court advised him of his "rights of trial" and of the consequences of a plea of guilty; and it contained nothing to contradict this account of the proceedings. In the state supreme court, there was neither proof nor uncontradicted allegation of any actual miscarriage of justice in accepting the plea of guilty; and that court affirmed the conviction. Held: On this record, to which review in this Court is confined, there is no showing of a denial of due process under the Fourteenth Amendment. Pp. 138-139.

2. The provision of the Sixth Amendment which guarantees to an accused in a criminal prosecution in a federal court the absolute right "to have the Assistance of Counsel for his defence," is not made applicable by the Fourteenth Amendment to prosecutions in state courts. Pp. 136-137.

394 Ill. 194, 68′N. E. 2d 252, affirmed.

In an original proceeding in the Supreme Court of Illinois, petitioners challenged the validity, under the Federal Constitution, of sentences of imprisonment imposed on them upon pleas of guilty in criminal prosecutions in a state court. The State Supreme Court affirmed the judgments. 394 Ill. 194, 68 N. E. 2d 252. This Court granted certiorari. 329 U. S. 712. Affirmed, p. 139.

Charles R. Kaufman argued the cause and filed a brief

- for petitioners.

William C. Wines, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were George F. Barrett, Attorney General, and James C. Murray, Assistant Attorney General.

Briefs of amici curiae urging affirmance were filed by Eugene F. Black, Attorney General, Edmund E. Shepherd, Solicitor General, and Daniel J. O'Hara, Assistant Attorney General, for the State of Michigan; and Sterry R. Waterman for the State of Vermont.

MR. JUSTICE FRANKFURTER delivered the opinion of the Court.

This is an original proceeding in the Supreme Court of Illinois by way of writ of error to test the validity of sentences of imprisonment following pleas of guilty. The Supreme Court of Illinois having affirmed the judgment, 394 Ill. 194, 68 N. E. 2d 252, we brought the case here, 329 U. S. 712, because of the importance of reviewing convictions where solid doubt is raised whether the requirements of due process have been observed.

On February 22, 1935, the petitioners were sentenced to confinement in the Illinois State Penitentiary, under the Illinois State indeterminate sentence law, after pleading guilty to an indictment charging them with burglary and larceny. Cahill's Ill. Rev. Stats. (1933) c. 38, §§ 65, 796. Since the controversy turns on the legal significance of the circumstances under which the pleas of guilty were accepted, it is important to state them according to the record which, for purposes of this proceeding, is binding upon the Illinois Supreme Court and therefore upon this Court. According to the "Minutes from the Judges Docket," the defendants Foster and Payne (petitioners here)