Jerry and Patricia A. Dixon, et al. - Page 121

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          other courts have, for many years, held taxpayers on questions of           
          general tax liability, and we believe that this is the                      
          appropriate standard to apply to respondent in this phase of the            
          proceedings.  See Rule 142(a); Welch v. Helvering, 290 U.S. 111,            
          115 (1933); Am. Pipe & Steel Corp. v. Commissioner, 243 F.2d 125,           
          126-127 (9th Cir. 1957), affg. 25 T.C. 351 (1955).                          
          II. Defining and Applying the Thompson Settlement                           
               A.   Overview                                                          
               In Al-Safin v. Circuit City Stores, Inc., 394 F.3d at 1258,            
          the Court of Appeals reminded us that its opinion may be                    
          consulted to ascertain what was intended by the mandates.  In               
          Dixon V, the Court of Appeals described the basis of the “secret            
          settlement agreements” with the Thompsons and the Cravenses as              
          follows:  “A condition of their settlements required Thompson and           
          Cravens to remain test case petitioners. * * * With respect to              
          Thompson, McWade agreed to have Thompson’s tax deficiencies                 
          reduced in proportion to his attorney’s fees, which exceeded                
          $60,000.”  Dixon v. Commissioner, 316 F.3d at 1044; fn. ref.                


          44(...continued)                                                            
          as a 62-percent reduction.  See Part C, infra.  We observe that             
          the significant evidentiary facts on this issue are not in                  
          dispute, so that the burden of proof does not enter into what we            
          see as a problem of legal characterization.  Therefore, the                 
          question does not arise whether we should employ some heightened            
          standard of proof, such as “strong proof” or “clear and                     
          convincing” proof, that might otherwise arise when a party to a             
          transaction seeks to disregard the form employed.  Our resolution           
          of this issue does not depend on the allocation or standard of              
          the burden of proof.                                                        




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