Transport Labor Contract/Leasing, Inc. & Subsidiaries - Page 49

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               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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