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TMP after the start of a criminal investigation, see Transpac
Drilling Venture 1982-12 v. Commissioner, 147 F.3d at 227, we
disagree with petitioner that Steele suffered from a conflict of
interest that required respondent’s removal of Steele as
Leatherstocking’s TMP.
A decision that a TMP is disqualified from serving as such
following the start of a criminal investigation turns on the
facts and circumstances of the case, cf. Madison Recycling
Associates v. Commissioner, 295 F.3d at 289, and we are not
persuaded on the basis of the facts and circumstances at hand
that Steele ever lost the ability to carry out properly his
fiduciary duty to his fellow partners in his handling of the
Leatherstocking audit. Although Steele was under criminal
investigation by the CID and at least one grand jury, those
investigations, as they related to tax, focused primarily on
Steele’s personal income tax situation. Moreover, while Steele’s
1992 plea agreement required that he “cooperate fully” with
respondent in the audit of Leatherstocking, that agreement did
not compel Steele to grant any of the consents that he did. As a
matter of fact, that agreement stated specifically that Steele
was not surrendering any rights that he had to contest
respondent’s determinations in a civil matter such as the
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