Jerry and Patricia A. Dixon, et al. - Page 122

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          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.”                           




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