Hoyt W. and Barbara D. Young, et al. - Page 6

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          had entered into secret settlement agreements with the two test             
          case petitioners not represented by Izen (the Thompsons and the             
          Cravenses).  Respondent asked the Court to conduct an evidentiary           
          hearing to determine whether the previously undisclosed                     
          agreements had affected the trial of the test cases or the                  
          opinion of the Court.  The Court denied respondent's request for            
          an evidentiary hearing, entered decisions giving effect to the              
          Thompson and Cravens settlements, and reentered or allowed to               
          stand the decisions sustaining respondent’s determinations                  
          against the other test case petitioners.                                    
               Around this time, Kersting organized, and initially                    
          administered, a fund (hereafter, the “Defense Fund” or “Fund”)              
          through which nontest case petitioners shared the further costs             
          of the test case litigation.  At various times, more than 300               
          nontest case petitioners contributed to the Defense Fund.                   
               The test case petitioners (other than the Thompsons and the            
          Cravenses) appealed to the Court of Appeals for the Ninth                   
          Circuit.  The Court of Appeals, citing Arizona v. Fulminante, 499           
          U.S. 279, 309 (1991), stated:                                               
                    We cannot determine from this record whether the                  
               extent of misconduct rises to the level of a structural                
               defect voiding the judgment as fundamentally unfair, or                
               whether, despite the government’s misconduct, the                      
               judgment can be upheld as harmless error.  [DuFresne v.                
               Commissioner, 26 F.3d 105, 107 (9th Cir. 1994) (per                    
               curiam), vacating Dixon v. Commissioner, T.C. Memo.                    

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