Jerry and Patricia A. Dixon, et al - Page 229




                                       - 299 -                                        

               Although the Thompson and Cravens settlement agreements                
          contain the basic elements of an MCA, the tax liabilities of the            
          Thompsons and the Cravenses were not tied to a Sliding Scale                
          Clause.  Rather than having a direct financial stake in the                 
          outcome of the case adverse to that of the remaining test case              
          petitioners, the Thompsons and Cravenses had their tax                      
          liabilities capped, and those liabilities would have been further           
          reduced or eliminated if the test case petitioners had prevailed            
          at trial.  Although the Thompsons' and Cravenses' adversarial               
          posture toward respondent had been diluted, they remained                   
          adversaries of respondent in some residual sense.                           
          Even more important, the Thompson and Cravens settlement                    
          agreements did not realign their interests so as to justify the             
          conclusion that they had become adversaries of the remaining test           
          case petitioners.  The record shows that Mr. Cravens appeared at            
          the trial of the test cases and testified in support of the test            
          case petitioners' position.  Although Mr. Thompson did not have a           
          direct interest in a decision against the remaining test case               
          petitioners, the record indicates that Mr. Thompson may have                
          viewed the trial of the test cases as an opportunity to gain                
          some advantage against Mr. Kersting's threats to enforce Mr.                
          Thompson's promissory notes.124  While it might be argued that the          
          Thompsons expected or received some benefit from the Court's                


          124  Of course, Judge Goffe was aware that Mr. Thompson                     
          was hostile towards Mr. Kersting and was able to assess                     
          Mr. Thompson's credibility from that standpoint.                            

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