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the Federal Government in its capacity as sovereign pursuant to
the Sixteenth Amendment to the U.S. Constitution.6 Consequently,
under the law as stated by the Court of Appeals for the Eleventh
Circuit, petitioners may not state a claim for equitable estoppel
because they are unable to establish that the United States,
acting through the IRS and its agents, was acting in a private or
proprietary capacity. Id. at 1541.
Even if the Court of Appeals for the Eleventh Circuit were
to decide that affirmative misconduct, and not sovereign
capacity, was the touchstone of the equitable estoppel defense,
petitioners' argument must fail because they have failed to
demonstrate that the IRS, acting through its agents, engaged in
affirmative misconduct. Assuming, arguendo, that we give credit
to the entirety of petitioner's testimony and allegations, we are
unable to find that the statements made by Ms. Van Der Heyden,
Mr. Caruso, and Ms. Morrison amount to affirmative misconduct.
The agents might have been mistaken, and they might have led
petitioners to believe their verbal requests for refunds
constituted valid informal claims within the period of
limitations, but this is not affirmative misconduct. At most,
these statements indicate that the agents were negligent, perhaps
6 The Sixteenth Amendment provides: "The Congress shall have
power to lay and collect taxes on incomes, from whatever source
derived, without apportionment among the several States, and
without regard to any census or enumeration." U.S. Const. amend.
XVI.
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