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planning or promotion of the Kersting programs. See Rule
24(f).20
Consistent with counsels' agreement to use the test case
procedure in the Kersting project, Judge Goffe granted the
parties' joint motions to continue the cases called at the June
1985 session. At the same time, the parties began filing
piggyback agreements (discussed in greater detail below), which
they did in the vast majority of the Kersting project cases.
Mr. Seery reported the results of the June 1985 proceedings
to Mr. Kersting and kept him abreast of developments. Mr. Seery
relied upon Mr. Kersting to distribute correspondence from
Mr. Seery to petitioners in the Kersting project.
2. Test Case Procedure
Mr. McWade and Mr. Seery agreed to select test cases that
would be representative of all the Kersting programs for all
years in dispute, including the taxable years 1975 through 1983.
At the time that Mr. Seery selected his test cases, he assumed
that the test case petitioners would bear the burden of proof at
trial.
In selecting test cases, Mr. Seery was not concerned with
whether a case involved other tax issues. Mr. Seery was simply
looking for cases "where someone did everything right."
20 Rule 24(f), which became effective on July 1, 1990, see
93 T.C. 857, addresses conflicts of interest in Tax Court
litigation. Rule 24(f) was redesignated Rule 24(g) effective
Aug. 1, 1998. See 109 T.C. 542.
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