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petitioners,27 now represented by three sets of attorneys,28 the
DuFresne panel filed an order indicating that, upon
reconsideration, it would not retain jurisdiction, and directing
the Clerk to schedule the appeal in the normal course of events.
On October 10, 2002, the panel that ultimately issued the opinion
in Dixon V heard oral argument in the test cases.
On January 17, 2003, the Court of Appeals issued its opinion
in the test cases in Dixon v. Commissioner, 316 F.3d 1041 (9th
Cir. 2003), amended on March 18, 2003 (Dixon V), vacating and
remanding the Court’s decisions in the test cases, and directing
the further proceedings that have resulted in this opinion.
Citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S.
238, 247 (1944), overruled on other grounds Standard Oil v.
United States, 429 U.S. 17, 18 (1976), the Court of Appeals
stated: “There can be no question here but that the actions of
McWade and Sims amounted to a fraud on both the taxpayers and the
Tax Court.” Dixon v. Commissioner, 316 F.3d at 1046. The Court
27On Nov. 20, 2001, the DuFresne panel had filed an order
directing that the appeals of nontest case petitioners
represented by Izen, Sticht, Jones, and O’Donnell “shall be held
in abeyance pending resolution of the appeal in No. 00-70858”
(i.e., the test cases).
28The three sets of attorneys are Izen, Michael L. Minns,
and John A. Irvine and Henry G. Binder.
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