Jerry and Patricia A. Dixon, et al - Page 43




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               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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