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into a formal piggyback agreement, but nothing in the record
indicates that petitioners followed up on any such intent.
The protest letter itself indicates an intention “to follow
the Tax Court’s decision in the lead cases” but omits any mention
of following a settlement of the lead cases, although that
possibility is specifically mentioned in paragraph 5 of the
piggyback agreement. Moreover, within a month after the Miller
settlement was executed, Becker as TMP, having become aware of
that settlement, submitted to respondent a clarification that SAB
Foam did not wish to be bound by the settlement and, therefore,
withdrew any statement of intention to be bound by any other
case.
The facts of this case are that petitioners’ TMP did not
execute the piggyback agreement. Instead he made it clear that
he did not wish to settle the case but to rely upon the results
of litigation. Petitioners’ unpersuasive argument is that, now
that the litigation of the lead case and many others has been
decided unfavorably to their position, they should be considered
to have accepted the piggyback agreement that their TMP
explicitly rejected.
Additionally, petitioners argue that a portion of the
stipulation of facts amounts to a concession by respondent’s
counsel that petitioners are entitled to the Miller settlement.
The stipulation paragraphs are as follows:
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