- 18 -18
Community Health Services, supra at 60. Equitable estoppel is
applied against the Government with utmost caution and restraint.
Estate of Carberry v. Commissioner, 933 F.2d 1124, 1127 (2d Cir.
1991) (quoting Boulez v. Commissioner, 76 T.C. 209, 214-215
(1981), affd. 810 F.2d 209 (D.C. Cir. 1987)), affg. 95 T.C. 65
(1990). Many Courts of Appeals apply more stringent requirements
for assertion of estoppel against the Government. See, e.g.,
Penny v. Giuffrida, 897 F.2d 1543, 1545 (10th Cir. 1990); United
States v. Asmar, supra at 911 n.4 (equitable estoppel against
Government only if affirmative misconduct).
The Court of Appeals for the Eleventh Circuit, to which an
appeal of this case lies, has not yet ruled whether affirmative
misconduct is an element of Government estoppel. See Lyden v.
Howerton, 783 F.2d 1554 (11th Cir. 1986); Deltona Corp. v.
Alexander, 682 F.2d 888, 891 n.4 (11th Cir. 1982); In re
Campbell, 186 Bankr. 731 (N.D. Fla. 1995). However, instead,
that court has adopted the reasoning of the former Court of
Appeals for the Fifth Circuit in United States v. Florida, 482
F.2d 205, 209 (5th Cir. 1973):
Whether the defense of estoppel may be asserted against
the United States in actions instituted by it depends upon
whether such actions arise out of transactions entered into
in its proprietory capacity or contract relationships, or
whether the actions arise out of the exercise of its powers
of government. The United States is not subject to an
estoppel which impedes the exercise of the powers of
government, and is not estopped to deny the validity of a
transaction or agreement which the law does not sanction.
[Citations omitted.]
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