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determined against them. We see no reason to treat those non-
Kersting deficiencies differently from non-Kersting additions.
As with those additions, the resolution of non-Kersting issues
has been delayed much too long. Rule 142(a), as in effect during
the years at issue, would impose upon those petitioners the
burden of proving those deficiencies to be erroneous. We think
it would be inherently unfair to impose upon them the risks that
memories have faded and records have been lost or destroyed
during the long delay in resolution of the Kersting issues, a
delay primarily caused by the misconduct of respondent’s
attorneys. Moreover, we suspect that the non-Kersting issues are
relatively minor when compared to the Kersting-related deductions
that are at issue in all these cases. We therefore direct that
all non-Kersting-related deficiencies determined in the notices
of deficiency for all affected taxpayers with taxable years still
before this Court be eliminated.
4. Attorney’s Fees
We further recall that respondent made the somewhat empty
concession that the other affected Kersting petitioners should be
reimbursed for any attorney’s fees they incurred during the trial
of the test cases before Judge Goffe. The concession is illusory
because, as respondent acknowledges, such fees were incurred and
paid by Kersting himself, not by the affected petitioners.
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