This is an appeal by the plaintiff in fi. fa. from the judgment of the trial court sustaining in part the affidavit of illegality filed by the defendant in fi. fa. to an unemployment contribution fi. fa., upon which levy was made, issued by the State Revenue Commissioner for the use of the Commissioner of Labor in the amount of $9,906.32 plus interest claimed to be due the State of Georgia as delinquent contributions on wages allegedly paid to employees of the defendant under the provisions of the Georgia Employment Security Law. Held:
1. "1. In determining whether an individual comes within the scope of the Employment Security Law (Code Ann. 54-601 et seq.), it is first necessary to establish that the individual in question performs services for wages, and this major premise must be established before the exceptions enumerated in Code Ann. 54-657 (h 6) of the law become material.
"2. One whose income is determined by the profit and loss which he derives from his individual business is not rendering services for wages within the purview of the Employment Security Law even though he is contributing his personal services to the enterprise." National &c. Convoy v. Undercofler, 109 Ga. App. 703 (137 SE2d 328)
2. The evidence adduced on the trial of this case authorized the finding of the trial court that certain of the individuals claimed by the Department of Labor to be employees for wages of the defendant in fi. fa. were independent contractors and not employees, and that such individuals did not perform services for wages so as to bring them within the scope of the Employment Security Law (Code Ann. 54-601 et seq.). The trial court did not err therefore in sustaining the affidavit of illegality filed by the defendant in fi. fa. with respect to these individuals and in allowing the fi. fa. to proceed for collection only as to that sum admitted by the defendant in fi. fa. to be due as accrued contributions under the Employment Security Law.
B. Lamar Tillman, Cam U. Young, for appellee.