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I. Procedural Issues Following Remand
A. Procedural Posture
These cases are before the Court pursuant to the DuFresne
and Dixon V opinions and mandates of the Court of Appeals for the
Ninth Circuit. They therefore present issues in a procedural
posture diametrically different from the standpoint from which we
usually redetermine income tax deficiencies or overpayments
arising from notices of deficiency or refund claims. Here, the
traditional roles of petitioner and respondent are reversed. In
this phase of the proceedings, it is respondent, not petitioner,
whose activities are being questioned. It is respondent, not
petitioners, who is charged with having the necessary records and
the personnel who have recollections regarding the matters at
issue.41 Because of the unique posture of this case, it is
respondent, not petitioner, who often argues that a deduction has
been properly claimed and allowed (and thus should not be
included as one of the taxpayer benefits of the Thompson
settlement), while petitioners argue the contrary.
41It should be noted that, following the remand in Dixon V,
neither side called DeCastro, Mcwade, or Sims as a witness. We
understand that DeCastro is seriously ill, so he was not
available. We have no such information about McWade or Sims;
perhaps their previous failures to persuade this Court of their
credibility discouraged both sides from calling them.
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