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Notwithstanding the later opinion of the Court of Appeals
for the Ninth Circuit in Dixon V,21 vacating the decisions in the
other test cases for “fraud on the court”, the panel that issued
the opinion in DuFresne entered separate orders on the same day
dismissing Messrs. Izen’s and Sticht’s appeals of this Court’s
denials of their motions to intervene in the Thompson and Cravens
cases. These orders explained:
The Tax Court’s August 25 and 26, 1992 decisions
entering settlement in the Cravens and Thompson cases,
respectively, are final. 26 U.S.C. � 7481(a)(1); Fed.
R. App. P. 13. The Tax Court lacks jurisdiction to
vacate those decisions. Billingsley v. CIR, 868 F.2d
1081, 1084 (9th Cir. 1989). Because there is no case
remaining in which the taxpayers can intervene, this
appeal is moot. [Adair v. Commissioner, 26 F.3d 129
(9th Cir. 1994) (No. 92-70812).]
Evidentiary Hearing After Remand of DuFresne
On September 30, 1992, Judge Goffe, who had presided over
the trial of the test cases, terminated his recall status as a
Senior Judge of this Court and retired from the bench. The Chief
Judge of this Court reassigned the Kersting project cases to
Judge Renato Beghe. Thereafter, to give effect to the direction
of the Court of Appeals in DuFresne regarding intervention,22
21For a description of Dixon v. Commissioner, 316 F.3d 1041
(9th Cir. 2003) (Dixon V), and the events leading up to it, see
infra under heading “The Second Appeal”.
22In an order dated June 16, 1995, calendaring a preliminary
hearing in the remaining test cases, this Court had caused a copy
of respondent’s motion for an evidentiary hearing pursuant to the
mandate of the Court of Appeals in DuFresne v. Commissioner, 26
(continued...)
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