                       T.C. Memo. 1997-210



                     UNITED STATES TAX COURT


     ROBERT HUNTER GRIDLEY AND BARBARA A. GRIDLEY, ET AL.,1
   Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 10588-83, 27053-83,           Filed May 6, 1997.
                 10931-84, 38757-84,
                 13477-87.



     Declan J. O'Donnell and Robert Alan Jones,2 for petitioners.

     Henry E. O'Neill, for respondent.




     1
       Cases of the following petitioners have been consolidated
herewith, solely for the purpose of deciding petitioners’ motions
for summary judgment: Russell L. Fleer, Sr., and Sally A. Fleer,
docket Nos. 27053-83 and 13477-87; and Robert H. and Barbara A.
Gridley, docket Nos. 10931-84 and 38757-84.

     2
       Although Robert Alan Jones, Esq., is listed as counsel of
record in these cases, he did not participate in the filing or
prosecuting of the motions that are the subject of this opinion.
                                  - 2 -


                           MEMORANDUM OPINION

         BEGHE, Judge:   These consolidated cases are before the

Court on petitioners' Motions for Summary Judgment.       Petitioners

contend that they are entitled to entry of decision consistent

with the decision entered by the Court in the case of John R. and

Maydee L. Thompson, docket No. 19321-83.        As explained in greater

detail below, we will deny petitioners' motions.3

Background

     These cases are part of a large tax shelter project,

currently comprising more than 1,300 cases, arising from the

Commissioner's disallowance of interest deductions claimed by

participants in investment programs created and administered by

Henry Kersting (Kersting group cases).     Due to the large number

of Kersting group cases, and the variety of investment programs,

the Commissioner and taxpayer representatives selected 14 dockets

as test cases to resolve the issues common to all of the cases.4

In conjunction therewith, and in advance of the trial of the test


     3
       All section references are to the Internal Revenue Code in
effect for the years in issue, unless otherwise indicated. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
     4
       The 14 dockets consolidated as test cases include Jerry
and Patricia A. Dixon, docket No. 9382-83; John R. and E. Maria
Cravens, docket Nos. 16900-83 and 15135-84; Ralph J. Rina, docket
No. 17640-83; John R. and Maydee L. Thompson, docket Nos. 19321-
83, 31236-84 and 30965-85; Hoyt W. and Barbara D. Young, docket
Nos. 4201-84, 22783-85, and 30010-85; Robert L. and Carolyn S.
DuFresne, docket Nos. 15907-84 and 30979-85; Terry D. and Gloria
K. Owens, docket No. 40159-84; and Richard and Fidella
Hongsermeier, docket No. 29643-86.
                                 - 3 -


cases, a large number of taxpayers, including petitioners,

executed one of two stipulations, entitled Stipulation of

Settlement for Tax Shelter Adjustments (piggyback agreements), by

which they agreed to be bound by the outcome in the test cases.

     The motions for summary judgment filed in these cases are

identical in all material respects.      We observe, however, that

the piggyback agreements relied upon by petitioners, although

similar, can be distinguished depending upon whether they were

executed and filed with the Court in 1985 or in later years.      For

the sake of completeness, the two piggyback agreements are set

forth in their entirety below.

Robert and Barbara Gridley

     Respondent determined deficiencies in and additions to

Robert and Barbara Gridley’s Federal income taxes for 1978, 1979,

1980, and 1981 based upon the disallowance of Kersting-related

interest deductions.   Petitioners contested respondent's

determinations by filing timely petitions for redetermination

assigned docket Nos. 10588-83, 10931-84, and 38757-84.5

     In May 1985, Brian J. Seery, Esq. (Mr. Seery), entered his

appearance in each of the Gridleys' three docketed cases.

Shortly thereafter, Mr. Seery executed a Stipulation of

Settlement For Tax Shelter Adjustments (the 1985 piggyback




     5
       At the time the petitions were filed, the Gridleys resided
in San Jose, California.
                                - 4 -


agreement) on the Gridleys' behalf that was filed with the Court

on June 10, 1985.6   The 1985 piggyback agreement states:

     Stipulation of Settlement for Tax Shelter Adjustments

          With   respect to all adjustments in respondent's
     notice of   deficiency relating to the Kersting interest
     deduction   tax shelter(s), the parties stipulate to the
     following   terms of settlement:

          1. The term Kersting programs refers to interest
     expense deductions or other related deductions
     associated with various programs promoted by Henry
     Kersting.

          2. The Kersting program deduction adjustments
     shall be redetermined on the same basis that the same
     program adjustments are resolved with respect to
     taxpayers trying the same program adjustments at the
     June 10, 1985 session of the Court in Honolulu, Hawaii,
     or such session as these cases may be adjourned or
     continued to by the Court (hereinafter "TRIED CASE").

          3. All issues involving the Kersting programs
     shall be resolved as if the petitioner(s) in this case
     is the same as the taxpayers in the TRIED CASE;

          4. A decision shall be submitted in this case
     when the decision in the TRIED CASE is entered;

          5. Following entry of the decision in this case,
     petitioner(s) consents to the assessment and collection
     of the deficiencies, attributable to the adjustments
     formulated by reference to the Tax Court's opinion,
     notwithstanding the restrictions contained in I.R.C.
     §6213(a);

          6. The petitioner(s) in this case will testify or
     provide information in any case involving the same tax
     shelter adjustments, if subpoenaed; and




     6
       Brian J. Seery, Esq., subsequently withdrew as the
Gridleys' counsel. In August 1992, Declan J. O'Donnell, Esq.,
filed an entry of appearance on behalf of the Gridleys in each of
their cases.
                                - 5 -


          7. The petitioner(s) in this case consents to the
     disclosure of all tax returns and tax return
     information for the purpose of respondent's discovering
     or submitting evidence in any case involving the same
     Kersting program adjustments.

          The parties agree to this stipulation of
     settlement.

Russell and Sally Fleer

     Respondent determined deficiencies in and additions to

Russell and Sally Fleer’s Federal income taxes for 1980 and 1983

based upon the disallowance of Kersting-related interest

deductions.   The Fleers contested respondent's determinations by

filing timely petitions for redetermination assigned docket Nos.

27053-83 and 13477-87.7

     In February 1986, Mr. Seery entered his appearance in docket

No. 27053-83.    On November 24, 1986, Mr. Seery executed a

Stipulation of Settlement For Tax Shelter Adjustments (the 1986

piggyback agreement) on the Fleers’ behalf that was filed with the

Court on December 1, 1986.8   The 1986 piggyback agreement states:

     Stipulation of Settlement for Tax Shelter Adjustments

          With   respect to all adjustments in respondent's
     notice of   deficiency relating to the Kersting interest
     deduction   tax shelter(s), the parties stipulate to the
     following   terms of settlement:



     7
       At the time the petitions were filed, the Fleers resided
in Thousand Oaks, California.
     8
       Brian J. Seery, Esq., subsequently withdrew as the Fleers'
counsel in docket No. 27053-83. On Aug. 17, 1992, Declan J.
O'Donnell, Esq., filed an entry of appearance in both of the
Fleers’ docketed cases.
                         - 6 -


     1. The Kersting interest deduction tax shelter
adjustments shall be redetermined on the same basis
that the same tax shelter adjustments are resolved with
respect to taxpayers trying the same shelter
adjustments at the February 9, 1987 session of the
Court in Wailuku, Maui, Hawaii, or such session as
these cases may be adjourned or continued to by the
Court (hereinafter "TRIED CASE").

     2. All issues involving the Kersting interest
deduction tax shelter(s) shall be resolved as if the
petitioner(s) in this case is the same as the taxpayers
in the TRIED CASE;

     3. A decision shall be submitted in this case
when the decision in the TRIED CASE becomes final under
I.R.C. § 7481;

     4. Following entry of the decision in this case,
petitioner(s) consent to the assessment and collection
of the deficiencies, attributable to the adjustments
formulated by reference to the Tax Court's opinion,
notwithstanding the restrictions contained in I.R.C.
§ 6213(a);

     5. The petitioners in this case will testify or
provide information in any case involving the same tax
shelter adjustments, if subpoenaed; and

     6. The petitioners in this case consent to the
disclosure of all tax returns and tax return
information for the purpose of respondent's discovering
or submitting evidence in any case involving the same
shelter adjustments.

     7. If the Court determines the I.R.C. § 6621(d)
penalties are applicable in the test case controlling
petitioner'(s’) case, then the petitioner(s) concedes
that I.R.C. § 6621(d) is applicable to any underpayment
of tax determined in their case(s) attributable to the
Kersting interest deduction tax shelter(s), if such
underpayment exceeds $1,000.00 in any one taxable year.

     8. With respect to adjustments in respondent's
notice of deficiency relating to additions to the tax
under I.R.C. § 6653(a), the parties agree to the
following:
                               - 7 -


               (a) Respondent concedes that the
     petitioner(s) are not liable for additions to tax under
     I.R.C. § 6653(a) or § 6653(a)(1) or § 6653(a)(2) for
     any year prior to the taxable year 1982.

          The parties agree to this stipulation of
     settlement.

On September 21, 1987, the Fleers executed a piggyback agreement

identical to the 1986 piggyback agreement and filed the same with

the Court in docket No. 13477-87.

Test Case History

     On December 11, 1991, following a trial on the merits of the

test cases, the Court issued its Memorandum Opinion sustaining

virtually all of respondent's determinations in each of the test

cases.   See Dixon v. Commissioner, T.C. Memo. 1991-614.

Thereafter, the Court entered decisions in the test cases in

accordance with the Court's opinion.

     On June 10, 1992, the Court granted leave and filed

respondent's motions to vacate the decisions in the test cases of

John Thompson (docket Nos. 19321-83, 31236-84, and 30965-85) and

John Cravens (docket Nos. 16900-83 and 15135-84).    Respondent

stated in her motions to vacate that she believed her lead

counsel in the trial of the test cases had, prior to trial,

entered into contingent settlement agreements with Thompson and

Cravens that were not made known to the Court or to the other

parties in the test cases, and that the decisions entered by the

Court in those dockets did not accurately reflect the prior

agreements.   Respondent's motions to vacate requested a hearing
                               - 8 -


so that the Court could decide whether her trial attorney's prior

agreement with Thompson and Cravens had affected the trial of the

test cases or the opinion of the Court.   On June 22, 1992, the

Court granted respondent's motions by vacating and setting aside

the decisions that the Court had previously entered in the

Thompson and Cravens cases and ordered the parties to file agreed

decisions with the Court or otherwise move as appropriate.   The

Court denied respondent's request for a hearing.

     On June 22, 1992, the Court denied respondent's motion to

vacate the decision filed in another of the test cases, Ralph J.

Rina, docket No. 17640-83, stating:

          The Court has reviewed the testimony of Cravens,
     the testimony of Thompson, the stipulated facts and
     stipulated exhibits relating to the Cravenses and the
     Thompsons, and the exhibits offered through Thompson as
     a witness. The Court finds that these reviewed items
     had no material effect on the opinion which the Court
     filed on December 11, 1991, as that opinion relates to
     petitioner Rina. If the reviewed items were stricken
     from the record, the Court would file an opinion in all
     material respects like the opinion it filed on December
     11, 1991 (with the exception of certain portions
     relating specifically and expressly to the Cravenses or
     the Thompsons), and the Court's findings, analyses, and
     conclusions relating to petitioner Rina would remain
     the same. * * *

     On August 25 and August 26, 1992, the Court entered

decisions in the Thompson and Cravens dockets consistent with

respondent's trial attorney's prior agreements with the taxpayers

in those cases.   Specifically, the Court entered the following

decisions in the Thompson cases:
                                - 9 -


     Year       Docket No.      Deficiency     Additions to Tax
     1979       19321-83           -0-               -0-
     1980       31326-84         $15,000             -0-
     1981       30965-85          15,000             -0-

The decisions entered in the Thompson cases are now final.

     All of the test cases, with the exception of the Thompson

and Cravens cases, were appealed to the U.S. Court of Appeals for

the Ninth Circuit.   In DuFresne v. Commissioner, 26 F.3d 105 (9th

Cir. 1994), the Court of Appeals vacated and remanded the

decisions entered in the test cases that had been appealed and

instructed the Tax Court to conduct an evidentiary hearing "to

determine the full extent of the admitted wrong done by the

government trial lawyers" in connection with the contingent

settlements entered into with Thompson and Cravens.    Id. at 107.

The Court of Appeals, citing Arizona v. Fulminante, 499 U.S. 279,

309 (1991), directed this Court to consider "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."   Id.   In carrying out this mandate, we also were directed

to consider on the merits all motions of intervention filed by

parties affected by the Dixon case.     Id.9



     9
       The appellate panel in DuFresne v. Commissioner, 26 F.3d
105 (9th Cir. 1994), vacating and remanding Dixon v.
Commissioner, T.C. Memo. 1991-614, issued an order stating that
the panel would retain jurisdiction over any subsequent appeal.
                               - 10 -


     Upon remand, the Court gave effect to the direction of the

Court of Appeals regarding intervention by allowing a number of

non-test-case taxpayers who had previously signed stipulations to

be bound by the decision in the test cases to participate in the

evidentiary hearing.   Initially, the case of William D. and

Karen S. Booth, docket No. 28950-88, in which Declan J.

O'Donnell, Esq. (Mr. O'Donnell), had entered his appearance, was

consolidated with other cases of non-test-case taxpayers for

purposes of allowing Mr. O'Donnell to participate in the

evidentiary hearing.   However, at the start of the evidentiary

hearing, the Court granted Mr. O'Donnell's motion to sever the

Booths' case from the cases consolidated for the evidentiary

hearing.10   Mr. O'Donnell argued that, in light of the theory

being asserted in the Booths' case, there was no need for the

Booths to participate in the evidentiary hearing.

     Petitioners contend that they are entitled to summary

judgment (and entry of decision) consistent with the decision of

no deficiency and no additions to tax entered in the Thompson

case assigned docket No. 19321-83.      In particular, petitioners



     10
        The evidentiary hearing was held at a special trial
session of the Court in Los Angeles in May through June 1996.
The filing of various posthearing motions, and as yet unresolved
disagreements among the participants over posthearing
stipulations of fact, have delayed the setting of a schedule for
the filing of briefs on the various issues raised by the mandate
of the Court of Appeals in DuFresne v. Commissioner, supra.
                               - 11 -


maintain that the piggyback agreements that they executed provide

for entry of decision in their cases once there is a "final

decision" in the test cases.   Petitioners assert that they are

entitled to entry of decision in their cases consistent with the

decision entered in the Thompson case assigned docket No. 19321-

83 on the grounds that the latter decision is final and

represents the most favorable of the decisions entered in the

Thompson and Cravens cases.

     Respondent objects to petitioners' Motions for Summary

Judgment on the ground that petitioners misinterpret the

piggyback agreements.   Specifically, respondent asserts that the

piggyback agreements reflect the parties' agreement to be bound

by the Court's opinion in the test cases as opposed to the

decision entered in a particular test case.

Discussion

     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.    Florida Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    Summary judgment upon all

or any part of the legal issues in controversy is appropriate "if

the pleadings, answers to interrogatories, depositions,

admissions, and any other acceptable materials, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that a decision may be rendered as a matter of

law."   Rule 121(b); Sundstrand Corp. v. Commissioner, 98 T.C.
                              - 12 -


518, 520 (1992), affd. 17 F.3d 965 (7th Cir. 1994); Zaentz v.

Commissioner, 90 T.C. 753, 754 (1988); Naftel v. Commissioner, 85

T.C. 527, 529 (1985).   The moving party bears the burden of

proving that there is no genuine issue of material fact, and

factual inferences will be read in a manner most favorable to the

party opposing summary judgment.     Dahlstrom v. Commissioner, 85

T.C. 812, 821 (1985); Jacklin v. Commissioner, 79 T.C. 340, 344

(1982).

     The Court has often relied upon the test case process as an

expedient means for resolving tax shelter projects comprising

large numbers of cases presenting common questions of law and

fact.   See Ryback v. Commissioner, 91 T.C. 524 (1988); Clayden v.

Commissioner, 90 T.C. 656 (1988); Anderson v. Commissioner, 83

T.C. 898 (1984), affd. without published opinion 846 F.2d 76

(10th Cir. 1988); Sennett v. Commissioner, 69 T.C. 694 (1978).

As a practical matter, the effectiveness of the test case process

depends in large part upon the agreement of the affected parties

to be bound by the outcome in the test case.

     A settlement stipulation, such as a stipulation to be bound

to a test case, is "in all essential characteristics a mutual

contract" that is "entitled to all of the sanctity of any other

contract."   Saigh v. Commissioner, 26 T.C. 171, 177 (1956); see

Fisher v. Commissioner, T.C. Memo. 1994-434; Estate of Satin v.

Commissioner, T.C. Memo. 1994-435.     In this regard, general
                                - 13 -


principles of contract law are applied in construing such

agreements.   Robbins Tire & Rubber Co. v. Commissioner, 52 T.C.

420, 435-436 (1969); Fisher v. Commissioner, supra; Estate of

Satin v. Commissioner, supra.    Generally, we look within the

"four corners" of the agreement to ascertain the intent of the

parties.   Rink v. Commissioner, 100 T.C. 319 (1993), affd. 47

F.3d 168 (6th Cir. 1995).    Where an agreement is ambiguous, the

Court may look to extrinsic evidence to determine the parties'

intentions.   Woods v. Commissioner, 92 T.C. 776 (1989).

     Consistent with basic principles of contract law, we begin

our analysis with the plain language of the two piggyback

agreements.   The operative terms of the two piggyback agreements

are virtually identical.    Paragraph 2 of the 1985 piggyback

agreement and paragraph 1 of the 1986 piggyback agreement state

that all issues involving Kersting-related interest deductions

will be redetermined on the same basis that the same tax shelter

adjustments are resolved with respect to the tried cases.

Equally important, paragraph 5 of the 1985 piggyback agreement

and paragraph 4 of the 1986 piggyback agreement, which state that

petitioners waive the restrictions on assessment and collection

following entry of decisions in their cases, include the

statement that any deficiencies in petitioners' cases will be

"formulated by reference to the Tax Court's opinion."    Based upon

the plain meaning of the language of the piggyback agreements, we

hold that the parties agreed to be bound by the Court's
                             - 14 -


redetermination with respect to Kersting-related interest

deductions as set forth in the Court's opinion in the test cases.

Because it is now evident that the decisions entered in the

Thompson cases are not based upon the Court's opinion in the test

cases, we conclude that the Thompson cases do not provide a basis

for entry of decision in petitioners' cases.

     Petitioners assert that the language in the piggyback

agreements referring to the Court's opinion in the test cases is

merely a "secondary formula" for arriving at a decision in their

cases and that the controlling language is set forth in paragraph

3 of the 1986 piggyback agreement, which states:    "A decision

shall be submitted in this case when the decision in the TRIED

CASE becomes final under I.R.C. sec. 7481".    Petitioners'

argument is summarized in the following excerpt:

          Wording in the standard form Stipulation in these
     cases refers to making adjustments in Petitioner's
     cases as described in an Opinion in the Tried Cases.
     This wording appears to have been a secondary formula
     for extending a Decision. It appears to provide the
     basis for clarifying any ambiguity about how to extend.
     It is submitted as a matter of contract construction
     there is no ambiguity in this case which could be aided
     by reference to any opinion. That opinion has become
     irrelevant.

          Furthermore, the Dixon et al. Opinion has been
     vacated by the Ninth Circuit Court of Appeals. A
     remand has been made for the purpose of fact finding
     and recommending whether or not that Opinion should be
     reinstated. It is predictable that any Decision of
     this Court, (one way or the other), will be appealed
     back to the Ninth Circuit panel so a final Decision
     herein is far away. There is no Opinion in the Tried
     Cases and probably won't be one for a period of years.
     The wording in the standard form Stipulation should be
                               - 15 -


     discarded not only as not applicable for a lack of
     ambiguity but, also, because the Opinion has been
     vacated.

          These Petitioner(s) want out of the hunt. They
     assert that their Stipulation is time-sensitive and now
     is the time to assert it. * * * There is no ambiguity
     about [paragraph 3 of the 1986 stipulation] * * *.
     Thompson 1979 has become final and it fairly represents
     the net favorable settlement.

     Although petitioners recognize that paragraph 3 provides the

timing for entry of decision in the piggyback cases, they

mistakenly conclude that the final decision in the Thompson case

provides the substantive basis for computations for entry of

decision in their cases.    To the contrary, as indicated above,

the piggyback agreements clearly state that the Court's opinion

in the test cases will provide the substantive basis for

computations for entry of decision in the piggyback cases.    Under

the circumstances presented, paragraph 3 of the 1986 piggyback

agreement requires entry of decision in the piggyback cases once

final decisions are obtained in the test cases that currently are

on remand to the Court by virtue of the Court of Appeals’ opinion

and mandate in DuFresne v. Commissioner, 26 F.3d 105 (9th Cir.

1994).

     To this point, we have limited our discussion to paragraph 3

of the 1986 piggyback agreement.    However, petitioners' reliance

on paragraph 3 of the 1986 piggyback agreement highlights the one

material difference between the 1985 piggyback agreement and the

1986 piggyback agreement.    Unlike the 1986 piggyback agreement,
                              - 16 -


the 1985 piggyback agreement does not require a final decision in

the test cases as a prerequisite for entry of decision in the

piggyback cases.   Specifically, paragraph 4 of the 1985 piggyback

agreement provides for entry of decision in the piggyback cases

"when the decision in the TRIED CASE is entered."11   With this

distinction in mind, we note that petitioners' theory for

extension of the Thompson decision on the ground that the

Thompson decision is a final decision is inapposite with respect

to cases governed by the 1985 piggyback agreement.    In any event,

as previously stated, whether we focus on the 1985 piggyback

agreement or on the 1986 piggyback agreement, our analysis of the

plain language of both agreements leads to the conclusion that it

is the Court's opinion in the test cases, as opposed to the

decision entered in any particular test case, that establishes

the standard for computations for entry of decision in the

piggyback cases.




     11
       Par. 4 of the 1985 piggyback agreement is akin to the
provision governing entry of decision at issue in Abatti v.
Commissioner, 86 T.C. 1319 (1986), affd. 859 F.2d 115 (9th Cir.
1988). In this regard, the parties could have moved for entry of
decision in the cases subject to the 1985 piggyback agreement
when decisions were first entered in the test cases in 1992.
However, in light of the subsequent decision of the Court of
Appeals for the Ninth Circuit in DuFresne v. Commissioner, 26
F.3d 105 (9th Cir. 1994), entry of decision in cases subject to
the 1985 piggyback agreement now must await entry of decision in
the test cases following this Court's resolution of the issues
raised by the Court of Appeals in its remand of the test cases.
                               - 17 -


       Petitioners' position in these cases is somewhat similar to

that taken by the taxpayers in Fisher v. Commissioner, T.C. Memo.

1994-434, and Estate of Satin v. Commissioner, T.C. Memo. 1994-

435.    In the latter cases, the taxpayers executed piggyback

agreements in which they agreed to be bound to the resolution of

tax shelter adjustments, whether by litigation or settlement, in

three test cases.    Of the three test cases, two cases were

resolved by way of settlement prior to trial (the settled cases),

in which the taxpayers conceded the deficiencies while the

Commissioner conceded the additions to tax.    In contrast, the

remaining test case subsequently was tried on the merits (the

tried case), resulting in a decision sustaining the

Commissioner's determinations with respect to both the deficiency

and additions to tax.    Following the conclusion of the tried

case, and upon learning for the first time about the settled

cases, the taxpayers filed, and the Court granted, motions for

entry of decision consistent with the terms of the settled cases.

Specifically, the Court found the piggyback agreements to be

ambiguous insofar as the agreements bound the taxpayers to cases

(the settled cases and the tried case) with divergent results.

In holding for the taxpayers, the Court concluded that, in

advance of the trial of the tried case, the taxpayers should have

been given an opportunity to agree to the terms offered in the

settled cases.    Because the Commissioner failed to advise the
                              - 18 -


taxpayers of the settlement prior to the resolution of the tried

case, the taxpayers were entitled to entry of decision in their

cases consistent with the terms offered in the settled cases.

     Although the present cases share some of the characteristics

of the Fisher and Estate of Satin cases, there is at least one

significant difference.   Specifically, the piggyback agreements

in the Fisher and Estate of Satin cases expressly stated that the

taxpayers agreed to be bound by the resolution of the test cases,

"whether by litigation or settlement".   In contrast, the

piggyback agreements in the present cases do not mention the

settlement of a test case as a basis for decision in the

piggyback cases.   It follows that the settlement of some or all

of the test cases, unlike the settlements on which the taxpayers

relied in Fisher and Estate of Satin, would not provide a basis

for entry of decision in any of the Kersting group cases in which

the parties had entered into a piggyback agreement.

     Finally, we turn to petitioners' alternative argument that

public policy concerns dictate that the Commissioner maintain

consistency in settling cases with taxpayers in cases involving

common questions of law and fact.   Petitioners cite section

6224(c), which provides for consistency in the settlement of

cases that are subject to the unified partnership audit and

litigation procedures (sections 6221 through 6233) enacted by

Congress as part of the Tax Equity and Fiscal Responsibility Act
                              - 19 -


of 1982 (TEFRA), Pub. L. 97-248, sec. 402(a), 96 Stat. 324, 648,

and contend that respondent should be estopped to deny the

applicability of section 6224(c) in these cases.

      Petitioners have cited no authority for the application of

section 6224(c) in cases other than TEFRA partnership

proceedings, and we are aware of none.   Moreover, the public

policy concerns expressed by petitioners provide no basis for

disregarding the piggyback agreements, which bind the parties to

the Court's redetermination with respect to Kersting-related

interest deductions, as set forth in the Court's opinion in the

test cases.   Petitioners are required to remain "in the hunt"

with all the other taxpayers in the Kersting group cases and

abide the outcome of the evidentiary hearing and resolution of

the various issues raised by the Court of Appeals for the Ninth

Circuit in its remand of the test cases.

     In sum, in the absence of any language in either of the

piggyback agreements that reasonably can be interpreted as

allowing petitioners to select a particular test case decision as

the basis for the decision to be entered in their cases, we will

deny petitioners' motions for summary judgment.

                To reflect the foregoing,


                                    Orders will be issued

                               denying petitioners' Motions for

                               Summary Judgment.
