- 85 - omitted. The Court of Appeals further described the Thompson settlement as a “vehicle for paying Thompson’s attorney’s fees”, notwithstanding McWade’s testimony that the settlement “was attributable to a separate transaction.” Id. at 1045.45 The opinion of the Court of Appeals displays its understanding that the Thompson settlement was a covert transaction, a “secret settlement agreement” that “was a vehicle” to provide the Thompsons with advantages--including payment of attorney’s fees through a drastic reduction of deficiencies, and elimination of Kersting and non-Kersting additions--over and above those offered to other taxpayers. Thus, while our sanction should put the other affected taxpayers in the position of having received the benefits the Thompsons received, those benefits should be fairly traceable to the sanctionable conduct of respondent’s counsel, McWade and Sims. As we informed the parties in an order dated February 28, 2005: 45The reference to a “separate transaction” is to the Thompsons’ participation in the Bauspar program. In his brief to the Court of Appeals, Izen explained that McWade and Sims had misled this Court by “denying that the Thompsons [sic] settlement was a vehicle for paying DeCastro’s legal fees for representing the Thompsons at the trial of the test cases, [and] by testifying that the Thompsons [sic] settlement was attributable to the Thompsons’ participation in the Bauspar program.” Additionally, as we observed in Dixon III, “Mr. McWade testified that the Thompsons’ settlement was revised in the summer of 1989 in order to dispose of the Bauspar issue. Mr. McWade denied that the Thompsons’ settlement was revised to provide a means for the Thompsons to pay Mr. DeCastro’s attorney’s fees.”Page: Previous 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 Next
Last modified: May 25, 2011