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appeals to the Ninth Circuit. That concession, prompted by
respondent’s recognition of responsibility for the delay in
resolving the Kersting project cases caused by the need to
investigate the misconduct of respondent’s attorneys, seems
appropriate, but also generous. Even if there had been no
misconduct by respondent’s attorneys, the appeals filed by test
case petitioners, before the misconduct was discovered, would
have taken some substantial time beyond June 1992 to resolve.
The amelioration is substantial because it has stopped the
further accrual and compounding of interest on the deficiencies
for more than 13 years. The amelioration is not complete because
many petitioners have deficiencies going back to the late 1970s
and early 1980s.
The bottom line is that, in the absence of the misconduct,
petitioners who did not prepay would have been required to pay
substantially more than they will be required to pay under the
mandates. Moreover, they will be entitled to pay these reduced
amounts many years later than would have been necessary if there
had been no misconduct. As a result of respondent’s concession,
they have had the use of the money due for their reduced
deficiencies for more than 13 additional years. Stated
differently, they have enjoyed for more than 13 years the
equivalent of an interest-free loan of the reduced deficiencies
and interest they will now have to pay.
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