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to petitioners’ supplement, respondent, on March 14, 2005, filed
notices that he chose not to do so.
Discussion
The Court of Appeals for the Ninth Circuit has decided that
Messrs. Sims and McWade committed fraud on the Court when they
failed to inform this Court, their superiors, and the other test
case petitioners and their counsel, of their settlement agreement
with Mr. DeCastro on behalf of the Thompsons. Mr. McWade
compounded that misconduct at the original trial before Judge
Goffe by creating a diversion that prevented Mr. Thompson from
revealing the settlement during his testimony. The Court of
Appeals held that “the actions of McWade and Sims amounted to a
fraud on both the taxpayers and the Tax Court” that “corrupts the
adversarial nature of the proceeding, the integrity of witnesses,
and the ability of the trial court to judge impartially.” Dixon
v. Commissioner, 316 F.3d at 1047. The Court of Appeals has
vacated this Court’s decisions in the cases of the test case
appellants and directed that they “and all other taxpayers
properly before this Court” receive the equivalent of the
Thompson settlement. In so doing, the Court of Appeals noted
without comment that several hundred taxpayers had settled their
cases. Id. at 1043.
The opinion of the Court of Appeals constitutes the law of
the case; under the law of the case doctrine, the decision of an
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