John and Louisa A. Hodel - Page 18

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          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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