- 14 -
whether the Government has entirely forfeited its right to
the money. [Id. at 61-62; fn. refs. omitted.]
In Kennedy v. United States, supra, the Court of Appeals for
the Seventh Circuit held that the underpayment of taxes lawfully
owing did not constitute a detriment, relying on Heckler v.
Community Health Services, supra. The Court of Appeals for the
Seventh Circuit stated that "We do not believe the estoppel
doctrine should be used against the government when the estoppel
claimant's detriment is the loss of a windfall that could have
never been statutorily effectuated". Kennedy v. United States,
supra at 418-419; see also Thomas v. Commissioner, 92 T.C. 206,
227 (1989). Accordingly, petitioner is not entitled to relief
under the equitable estoppel doctrine.
Petitioner also demands a jury trial. In Mathes v.
Commissioner, 576 F.2d 70, 71-72 (5th Cir. 1978), affg. T.C.
Memo. 1977-220, the Court of Appeals for the Fifth Circuit
answered this demand by stating that:
The Seventh Amendment preserves the right to jury trial "in
suits at common law." Since there was no right of action at
common law against a sovereign, enforceable by jury trial or
otherwise, there is no constitutional right to a jury trial
in a suit against the United States. Thus, there is a right
to a jury trial in actions against the United States only if
a statute so provides. Congress has not so provided when
the taxpayer elects not to pay the assessment and sue for a
redetermination in the Tax Court. For a taxpayer to obtain
a trial by jury, he must pay the tax allegedly owed and sue
for a refund in [United States] district court. The law is
therefore clear that a taxpayer who elects to bring his suit
in the Tax Court has no right, statutory or constitutional,
to a trial by jury. [Citations omitted.]
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