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characterized that agreement as “the government’s fraud and
perfidy in a secret deal between Cravens and Thompson on the one
hand and IRS attorney McWade (and other government officials) on
the other hand.” The misconduct, as Mr. Kersting described it,
“involves a settlement in favor of Cravens/Thompson in exchange
for the damaging testimony and exhibits that were all put
together as part of a prearranged plan.” In September 1992, Mr.
Kersting advised the Kersting project petitioners who had signed
piggyback agreements that they should demand “the same
concessions arranged by the Revenue Service for Thompson and
Cravens. An arrangement whereby $100,000.00 of taxes allegedly
owed were reduced to a mere $15,000.00”. He also informed the
Kersting project participants of the progress of the appeals in
the test cases: “I had reason to believe that the Appeal of
Judge Goffe’s decision at the 9th Circuit [Court] of Appeals in
San Francisco was just around the corner. It did not come about
that quickly, as you know.” Mr. Kersting noted the misconduct of
the Government’s lawyers and added: “It threw the Appeals
schedule into turmoil and motions had to be filed to ask for an
extension of time for filing the Appeal.”
In addition, all relevant information Messrs. O’Donnell and
Jones had about the litigation of the test cases is attributable
to their clients, petitioners herein. See Commissioner v. Banks,
543 U.S. , , 125 S. Ct. 826, 832 (2005); Veal v. Geraci, 23
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