Barry I. Fredericks - Page 6

                                        - 6 -                                         

          petitioner has not shown all the elements necessary to invoke the           
          doctrine of equitable estoppel.  We agree with respondent.                  
               It is well established that the estoppel doctrine should be            
          applied against the Commissioner with the utmost caution and                
          restraint.  Schuster v. Commissioner, 312 F.2d 311, 317 (9th Cir.           
          1962), affg. in part and revg. in part 32 T.C. 998 (1959); Boulez           
          v. Commissioner, 76 T.C. 209, 214-215 (1981), affd. 810 F.2d 209            
          (D.C. Cir. 1987); Estate of Emerson v. Commissioner, 67 T.C. 612,           
          617 (1977).  The following elements must be shown before                    
          equitable estoppel will be applied against the Government:  (1) A           
          false representation or wrongful misleading silence by the party            
          against whom estoppel is claimed; (2) error in a statement of               
          fact and not in an opinion or statement of law; (3) ignorance of            
          the true facts; (4) reasonable reliance on the acts or statements           
          of the one against whom estoppel is claimed; and (5) a resulting            
          detriment to the party relying on the false statement or                    
          misleading silence.  Norfolk S. Corp. v. Commissioner, 104 T.C.             
          13, 60 (1995); see also Lignos v. United States, 439 F.2d 1365,             
          1368 (2d Cir. 1971); Hudock v. Commissioner, 65 T.C. 351, 363               
          (1975).  Additionally, the Court of Appeals for the Third                   
          Circuit, to which this case is appealable, has held that "a                 
          litigant must prove 'affirmative misconduct' to succeed on an               
          estoppel claim against the government."  United States v. Asmar,            
          827 F.2d 907, 912 (3d Cir. 1987).  The burden of proof is on the            





Page:  Previous  1  2  3  4  5  6  7  8  9  Next

Last modified: May 25, 2011