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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.
1991-614.]
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