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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 apply
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