Malcolm I. Lewin and Trina Lewin - Page 47

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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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