- 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. * * *Page: Previous 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 Next
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