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constituted a substantial underpayment for which additional
interest would be charged pursuant to section 6621(c). On June
23, 1993, the Court entered the decisions in petitioners’ three
dockets. On September 22, 1993, the decisions became final under
section 7481. Petitioners subsequently paid in full the
liabilities assessed in accordance with those decisions.
Initial Appellate Proceedings
In the meantime, the appeals by test case petitioners
represented by Mr. Izen were going forward. On June 14, 1994,
the Court of Appeals for the Ninth Circuit vacated the decisions
in the remaining test cases on the ground that the misconduct of
Messrs. Sims and McWade required further inquiry. In a per
curiam opinion, it observed: “We cannot determine from the
record whether the extent of misconduct rises to the level of a
structural defect voiding the judgment as fundamentally unfair,
or whether, despite the government’s misconduct, the judgment can
be upheld as harmless error.” DuFresne v. Commissioner, 26 F.3d
105, 107 (9th Cir. 1994) (hereafter DuFresne). Accordingly, the
Court of Appeals remanded the remaining test cases to this Court
with directions “to conduct an evidentiary hearing to determine
the full extent of the admitted wrong done by the government
trial lawyers.” Id. It further directed this Court to “consider
on the merits all motions of intervention filed by parties
affected by this case.” Id.
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