Transport Labor Contract/Leasing, Inc. & Subsidiaries - Page 48

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          Revenue (Commissioner) took the position in Beech Trucking Co. v.           
          Commissioner, 118 T.C. 428 (2002), that the driver-leasing                  
          company in that case (i.e., Arkansas Trucking Service) was not              
          the employer of the truck drivers whom it leased to Beech Truck-            
          ing Co., Inc., whereas the Commissioner takes the inconsistent              
          position in the instant case that the driver-leasing company in             
          this case (i.e., TLC) was the employer of each driver-employee              
          whom it leased to each trucking company client.                             
               The doctrine of judicial estoppel is designed to protect the           
          integrity of the courts by preventing a party from asserting                
          positions contradictory to or inconsistent with positions as-               
          serted in prior litigation.  New Hampshire v. Maine, 532 U.S.               
          742, 749-750 (2001); Leonard v. Southwestern Bell Corp. Disabil-            
          ity Income Plan, 341 F.3d 696, 702 (8th Cir. 2003); Huddleston v.           
          Commissioner, 100 T.C. 17, 26 (1993).  We observed in Huddleston            
          v. Commissioner, supra at 26:                                               
               Judicial estoppel generally requires acceptance by a                   
               court of the prior position and does not require priv-                 
               ity or detrimental reliance of the party seeking to                    
               invoke judicial estoppel. * * * Acceptance by a court                  
               does not mean that the party being estopped prevailed                  
               in the prior proceeding with regard to the ultimate                    
               matter in dispute, but rather only that a particular                   
               position or argument asserted by the party in the prior                
               proceeding was accepted by the court. * * *                            
          The Court has discretion as to whether to invoke the doctrine of            
          judicial estoppel.  Fazi v. Commissioner, 105 T.C. 436, 446                 
          (1995).                                                                     






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