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lack standing to contest the alleged violation of Mr. Kersting's
Fourth Amendment rights. Further, there is no credible evidence
in the record that respondent issued notices of deficiency to
Kersting program participants that were so erroneous as to render
them invalid.100 Consequently, we will limit our consideration to
the misconduct associated with the secret settlements that
Messrs. Sims and McWade entered with Messrs. Thompson and Cravens
and Mr. McWade's understanding with Mr. Alexander.
The impact of the Government misconduct in these cases must
be evaluated in the context in which it occurred. Specifically,
whereas the typical structural defect case arises in a trial of a
single criminal defendant, the test case procedures employed in
these cases concern the tax liabilities of more than 1,300
Kersting program participants who agreed to be bound by the
outcome in a trial of eight test case petitioners, six of whom
were represented by Mr. Izen.
Although we are convinced that the Thompson and Cravens
settlements had the effect of diluting or diminishing the
adversarial character of the presentation of their cases, we are
100 There is no evidence in the record that such errors as
have been discovered in Kersting project statutory notices were
attributable to an improper intention of pressuring taxpayers.
However, the existence of such errors, see, e.g., Richards v.
Commissioner, T.C. Memo. 1997-149, supplemented by T.C. Memo.
1997-299, affd. without published opinion 165 F.3d 917 (9th Cir.
1998), should alert nontest case petitioners and their counsel in
nontest cases not yet disposed of to review their notices and
carefully compare them with their return positions for the
taxable years in question.
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