- 49 -49
Where there is a “possibility that ‘some distinction may
exist or arise’ between * * * [the prior case and the case under
consideration], the integrity of the judicial process is not
undermined by permitting the * * * [party against whom judicial
estoppel is advanced] an opportunity to argue that such a dis-
tinction in fact exists.” Bendet v. Sandoz Pharm. Corp., 308
F.3d 907, 910 (8th Cir. 2002).
The determination of whether a person is an employer is a
fact-intensive inquiry. Nationwide Mut. Ins. Co. v. Darden, 503
U.S. 318, 324 (1992); Alford v. United States, 116 F.3d 334, 337
(8th Cir. 1997); Beech Trucking Co. v. Commissioner, supra at
441. Respondent argues here that the facts in Beech Trucking Co.
v. Commissioner, supra, are different from the facts in the
instant case.39 On the record before us, we shall not apply the
doctrine of judicial estoppel so as to preclude respondent from
taking the position that, under the facts established by the
39The evidentiary record presented in Beech Trucking Co. v.
Commissioner, 118 T.C. at 441, was sparse. We stated in that
case:
the evidentiary basis for analyzing the relevant common
law factors is relatively sparse, owing largely to
petitioner’s failure to introduce in evidence or other-
wise establish the precise terms of any lease agree-
ment, employment agreement, or contract between Beech
Trucking and ATS [the driver-leasing company]. Nor
does the record contain the drivers’ employment con-
tracts. Moreover, the record does not always clearly
distinguish the roles of Beech Trucking and ATS with
respect to the drivers’ activities. * * *
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