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to its driver-employees: (1) TLC exercised only an advisory role
in hiring each driver-employee; (2) without exception, the
trucking company client made the decision to terminate any
driver-employee whom TLC leased to it; and (3) while TLC was
leasing a driver-employee to a trucking company client, TLC had
no right to lease that driver-employee to another trucking
company client and thereby assign additional projects to such
driver-employee (collectively, Mr. Ankerfelt’s disputed trial
testimony). Transp. Labor Contract/Leasing, Inc. & Subs. v.
Commissioner, 123 T.C. at 185-186. Respondent introduced into
the record an affidavit (Mr. Ankerfelt’s affidavit) that Mr.
Ankerfelt made under oath in Hix v. Minn. Workers’ Comp. Assigned
Risk Plan, 520 N.W.2d 497 (Minn. Ct. App. 1994). In that affida-
vit, Mr. Ankerfelt swore under oath, inter alia:
TLC recruits, screens and hires the employee-drivers
that it leases to Joe Hix Trucking and other trucking
companies. TLC places advertisements to locate such
drivers and makes all hiring decisions. A lessee
[trucking company client] has no authority to require
TLC to hire a particular driver.
* * * TLC has sole authority to determine the
assignment of a driver.
* * * TLC retains the sole right to discharge and
fire any of its drivers-employees. When a lessee no
longer desires to lease a TLC driver-employee, the TLC
driver-employee returns to TLC for assignment to an-
other lessee.
The above-quoted statements from Mr. Ankerfelt’s affidavit
are inconsistent, or sufficiently inconsistent, with Mr.
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