- 13 -
Because of Judge Goffe's termination, on September 30, 1992,
of his recall status as a Senior Judge of the Court, all cases in
the Kersting project group were reassigned to Judge Renato Beghe.
The other test case petitioners, including Mr. Rina,
appealed the decisions entered in their cases to the Court of
Appeals for the Ninth Circuit. On appeal, those petitioners
argued that the trial of the test cases had been tainted by the
Thompson and Cravens settlement agreements. The response of the
Court of Appeals was to vacate the decisions in the remaining
test cases and remand them to this Court with directions "to
conduct an evidentiary hearing to determine the full extent of
the admitted wrong done by the government trial lawyers."
DuFresne v. Commissioner, 26 F.3d at 107. The Court of Appeals,
citing Arizona v. Fulminante, 499 U.S. 279, 309 (1991), directed
the Court to consider "whether the extent of misconduct rises to
the level of a structural defect voiding the judgment as
fundamentally unfair, or whether, despite the government's
misconduct, the judgment can be upheld as harmless error."
DuFresne v. Commissioner, supra at 107. Further, the Court of
2(...continued)
The Tax Court's August 25 and 26, 1992 decisions
entering settlement in the Cravens and Thompson cases,
respectively, are final. 26 U.S.C. � 7481(a)(1); Fed.
R. App. P. 13. The Tax Court lacks jurisdiction to
vacate those decisions. Billingsley v. CIR, 868 F.2d
1081, 1084 (9th Cir. 1989). Because there is no case
remaining in which the taxpayers can intervene, this
appeal is moot. [Adair v. Commissioner, No. 92-70812,
26 F.3d 129 (9th Cir. 1994).]
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