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In their motion for reconsideration, petitioners complain
that during the course of the evidentiary hearing conducted on
remand from the Court of Appeals, as required by DuFresne, this
Court denied them access to Government documents that showed the
extent of respondent’s continued misconduct in attempting to
conceal the trial attorneys’ misconduct. Our decisions entered
in accordance with Dixon III and Dixon IV, however, were
appealed. Izen, in his brief on appeal, argued to the Court of
Appeals that the Tax Court abused its discretion by denying
petitioners’ discovery requests related to respondent’s conduct
following the trial.11 Although the Court of Appeals did not
address Izen’s discovery arguments in its Dixon V opinion, it
referred to the “persistence and concealment of the misconduct”,
Dixon v. Commissioner, 316 F.3d at 1043, and commented that
respondent’s disclosure of the misconduct “was anything but
complete”. Id. at 1047 n.8. In formulating the Thompson
settlement sanction mandated by Dixon V, the Dixon V panel was
aware and took into account that respondent’s conduct following
the trial of the test cases had been less than exemplary.
The alleged misconduct of respondent’s managers following
the trial of the test cases was directly in issue in the prior
11In the Court’s evidentiary proceedings on the Dixon V
mandate, the Court required the production of the bulk of the
materials to which petitioners had been previously denied access,
as a means of helping the Court to ascertain “respondent’s
understanding of the origins and nature of the Thompson
settlement.” See supra notes 4 and 9 and accompanying text.
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