Jerry and Patricia A. Dixon, et al - Page 140




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          the misconduct "cannot be fairly assessed without engaging in               
          sheer speculation".  In short, taking a different route from                
          Mr. Izen and Mr. Jones, Mr. Sticht would bring his clients to the           
          same destination:  that nontest case petitioners are entitled to            
          entry of decisions that no deficiencies are due in their cases.             
               In response to respondent's contention that the Government             
          misconduct did not result in a structural defect because Mr. Izen           
          was not inhibited in fully and fairly presenting his clients'               
          cases, Mr. Sticht asserts that nontest case petitioners                     
          nevertheless were harmed by Mr. Kersting's firing of Chicoine and           
          Hallett at a time when they were attempting to settle the                   
          Kersting project cases.  Mr. Sticht further suggests (in very               
          general terms) that Mr. Izen's performance at the trial of the              
          test cases was deficient and that the trial of the test cases               
          should have included an attorney who was not being paid by                  
          Mr. Kersting.                                                               
          C.   Summary of Government Misconduct                                       
               Our first step in deciding whether the Government misconduct           
          resulted in a structural defect in the trial of the test cases is           
          to describe and characterize the Government misconduct.                     
               Messrs. Sims and McWade negotiated a series of contingent              
          settlement agreements in the Thompson and Cravens cases in                  
          advance of the trial of the test cases under which the Thompson             
          and Cravens would receive the more favorable of:  (1) The Tax               
          Court's decision if the test case petitioners should prevail in             



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