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sanctions against respondent, to be determined in accordance with
the ascertainable standard provided by the Dixon V opinion.
We now broach how, in light of the different circumstances
of the Thompsons and the various groups of affected taxpayers, we
can follow and apply the directive of the mandates. Interpreting
the term “same position” used in footnote 11 of Dixon V to mean
“same financial position”, it might seem, at first blush, that
the test case and nontest petitioners cannot be put in the
financial position the Thompsons found themselves in as a result
of the Thompson settlement. The Thompson settlement was embodied
in a sequence of payments and refunds that occurred more than 15
to 20 years ago, when personal interest was fully or partially
deductible for income tax purposes, in a different interest rate
environment, and in temporal relationships that are not now
reproducible with respect to any of the other petitioner
participants in the Kersting project. Also, the bulk of those
refunds was used to pay legal fees the other test case
petitioners were not required to pay for representation in the
test case trial.
It should be borne in mind that the Thompson settlement
occurred in two distinct phases: In December 1986 into early
1987, McWade and DeCastro arranged to provide the Thompsons a
reduction of approximately 20 percent in the originally
determined deficiencies; this version of the settlement took
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