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discretion the choosing of the new tax matters partners
to replace Mr. Winer. You provided to us the list of
the new tax matters partners which we accepted without
question.
Additionally, the Memorandum in Support of Joint Motion for
Permanent Injunction, filed August 11, 1986, in the District
Court and signed by both Davis and Fieldstone, clearly states
that Winer prepared the list of new tax matters partners for the
partnerships involved.
Eventually, all of the persons or entities designated as
replacement TMP's in Winer's resignation letter contacted Winer,
directly or indirectly, and indicated that they refused to serve
as TMP's. For example, Stuart Hershfield, who had been selected
by Winer to serve as the new TMP for the Stevens Recycling
Associates partnership, on April 30, 1986, wrote in a letter to
Winer:
I discovered with some alarm that I have been
designated as the new tax matters partner to replace
you. This designation is not acceptable under any
circumstance. I ask that you forthwith communicate
with the IRS or the parties with whom you entered a
consent order advising them that I do not wish to be
the tax matters partner and accordingly to replace me.
The evidence indicates that Davis was caught off guard by
the refusal of the purported replacement TMP's for the
partnerships to act as such. In a June 23, 1986, letter to
Fieldstone, Davis wrote:
I was quite surprised and somewhat dismayed to discover
that at least some of the newly "appointed" tax matters
partners had not agreed to the appointments, nor had
they even been contacted before their names were
submitted to us by you and your client. The
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