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from respondent's requests for findings of fact and argument that
Mr. Izen was aware of the Cravens and Thompson settlements at the
time of the trial before Judge Goffe.94 Placing the burden of
proof on respondent--for reasons discussed above--we have found
that Mr. Izen was not aware of the settlements. However, the
record contains evidence, such as Mr. Kersting's, Mr. Moseley's,
and Mr. Bradt's knowledge of the settlements, Mr. Bradt's prior
partnership with Mr. Izen and their cooperation and sharing of
information during the evidentiary hearing, and statements by Mr.
Cravens--which he ultimately recanted on grounds of uncertainty
and lack of clear recollection--from which it could be inferred
that Mr. Izen had been informed or had become aware of the
settlements at or before the trial of the test cases.95 Although
such evidence does not suffice to require a finding to that
effect, we might have found, if petitioners had to bear the
94 Respondent has not carried through and addressed the
significance for these cases of Mr. Izen's awareness or lack of
awareness of the settlements. We do not believe that Mr. Izen's
awareness of the settlements would have any bearing on our
conclusion that the Court's decisions on the tax deficiencies of
the test case petitioners should be reinstated. Although
nondisclosure of the settlements by Mr. Izen--if he had been
aware of them--would have amounted to misconduct on his part, we
would not regard such misconduct as having any bearing on the
reinstatement of the decisions in the test cases. See discussion
infra pp. 230-232 of Mr. Kersting's misconduct.
95 We recognize that there is circumstantial evidence that
Mr. Izen was not aware of the Thompson and Cravens settlements.
If Mr. Izen had been aware of the Thompson settlement, it does
not seem likely that he would have allowed Mr. DeCastro to attend
the meeting that he held with Mr. Hongsermeier on the eve of the
trial of the test cases or shared other information with Mr.
DeCastro. It is also likely that Mr. Izen would have brought the
settlements to the Court's attention before respondent did.
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