James Dwain & Jill R. Haws - Page 13

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          will not unduly harm the public interest.’”  Purcell v. United              
          States, 1 F.3d 932, 939 (9th Cir. 1993) (quoting S & M Inv. Co.             
          v. Tahoe Regl. Planning Agency, 911 F.2d 324, 329 (9th Cir.                 
          1990)).  “Affirmative misconduct” requires ongoing active                   
          misrepresentations or a pervasive pattern of false promises, as             
          opposed to an isolated act of providing misinformation.  Watkins            
          v. United States Army, 875 F.2d 699, 708 (9th Cir. 1989); River             
          City Ranches # 1 Ltd. v. Commissioner, T.C. Memo. 2003-150.                 
               In the instant case, we are unpersuaded that there was any             
          affirmative misconduct on the part of respondent’s employees or             
          agents.  At most, there appears to have been an isolated mistake            
          in failing to list the 1992 tax year and include the unpaid 1992            
          tax liability on the Form 433-D.  Petitioners do not assert, and            
          there is no evidentiary basis for concluding, that any of                   
          respondent’s employees or agents ever represented to petitioners            
          that any of their unpaid tax liabilities, including their 1992              
          tax liabilities, would be compromised or eliminated pursuant to             
          the installment agreement.8                                                 
               Accordingly, we are unpersuaded that respondent should be              
          estopped from collecting more than the $1,455 listed on the Form            
          433-D.  Nevertheless, for the reasons described below, we do not            



               8 The Form 433-D itself makes no such representation, as it            
          omits mention of both the 1992 tax year and the unpaid 1992 tax             
          liability.                                                                  





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