Davenport Recycling Associates, Sam Winer, Tax Matters Partner - Page 59

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          Davenport recycling machines; (3) information regarding the                 
          original injunction proceedings involving PI; (4) particularly              
          notice that a petition had been filed in the Davenport Recycling            
          case and other partnership cases; and (5) progress reports                  
          regarding the Provizer trial and appeal.  Participants and the              
          other limited partners received this information from Winer and             
          were aware that he was taking charge of the Davenport Recycling             
          litigation.  Participants did not question his authority as TMP             
          until after they were assessed by respondent.  "'Deficiencies ex            
          post do not detract from authority ex ante.'"  DiSanza v.                   
          Commissioner, T.C. Memo. 1993-142 (quoting Slavin v.                        
          Commissioner, 932 F.2d 598, 601 (7th Cir. 1991), revg. and                  
          remanding T.C. Memo. 1990-44), affd. without published opinion, 9           
          F.3d 1538 (2d Cir. 1993).  In addition, Winer assisted Gordon and           
          Hack by providing information to them so they could respond to              
          respondent's discovery requests.                                            
               The evidence clearly indicates that all the limited                    
          partners, including Karras, were aware that Winer had filed a               
          petition in this Court and intended to represent the limited                
          partners in the subsequent litigation.  During the evidentiary              
          hearing on this matter, Karras testified that he received the               
          FPAA's in time to file a petition in this Court but chose not to            
          because he knew that Winer had filed a petition in this case.               
          Furthermore, Karras had received a notice that Winer had filed a            
          petition on behalf of Davenport in the capacity of TMP.                     




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