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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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