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counsel of record for the Hongsermeiers. Thus, three sets of
counsel pursued the test case appeal: Izen on behalf of the
Youngs, Minns on behalf of the Hongsermeiers, and Porter & Hedges
on behalf of the Dixons, DuFresnes, and Owenses (hereafter, the
PH appellants).
On July 26, 2002, after the test case appellants’ opening
briefs, respondent’s answering brief, and the test case
appellants’ reply briefs had all been filed, Jones filed a motion
for leave to intervene in the test case appeal on behalf of one
of the four Jones petitioners (the Cerasolis). The Court of
Appeals denied the Cerasolis’ motion by order dated September 6,
2002.
On January 17, 2003, the Court of Appeals reversed and
remanded the test cases, holding that the misconduct of the
Government attorneys in the trial of the test cases was a fraud
on the court, for which no showing of prejudice is required. See
Dixon v. Commissioner, 316 F.3d 1041 (9th Cir. 2003) (Dixon V).
As for the remedy, the Court of Appeals decreed that respondent
be sanctioned by entry of judgment in favor of the test case
petitioners “and all other taxpayers properly before this Court
on terms equivalent to those provided in the settlement agreement
with Thompson and the IRS.” Id. at 1047. The Court of Appeals
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