- 21 -21 even recklessly so. But negligence, even reckless negligence, is not affirmative misconduct. Schweiker v. Hansen, 450 U.S. 785 (1981); Portmann v. United States, 674 F.2d 1155, 1167 (7th Cir. 1982) (citing TRW, Inc. v. FTC, 647 F.2d 942, 951 (9th Cir. 1981) (defining affirmative misconduct as "something more than mere negligence")). Moreover, the often-stated general rule is that a revenue agent does not have the authority to bind the Commissioner. See Dixon v. United States, 381 U.S. 68, 73 (1965); United States v. Stewart, 311 U.S. 60 (1940). A claim of estoppel is usually rejected, even though the taxpayer contends that he followed the erroneous advice of an agent and acted in reliance upon it. Boulez v. Commissioner, supra; Montgomery v. Commissioner, 65 T.C. 511, 522 (1975). Accordingly, petitioners' equitable estoppel claim fails. Petitioners also raise arguments that the period of limitations should be extended in light of the misrepresentations allegedly made by the IRS agents. In tax refund cases, the actions of the IRS and its agents may equitably toll a period of limitations. Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990) (rebuttable presumption of equitable tolling applies to suits against the United States); Brockamp v. United States, 67 F.3d 260, 261 (9th Cir. 1995), cert granted ___ U.S. ___, 116 S. Ct. 1875 (1996). The elements of equitable tolling are similar to those of equitable estoppel. A taxpayer seeking to applyPage: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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