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negligence by the Government, and (2) the Government’s wrongful
act causes a serious injustice and the public’s interest does not
suffer undue damage by imposition of estoppel. See Watkins v.
United States Army, 875 F.2d 699, 707 (9th Cir. 1989).
Affirmative misconduct requires an affirmative
misrepresentation or affirmative concealment of a material fact
by the Government. See United States v. Ruby Co, 588 F.2d 697,
703-704 (9th Cir. 1978). Affirmative misconduct must be more
than negligence, but it does not require that the Government
intends to mislead. See United States v. Hatcher, 922 F.2d 1402,
1410 (9th Cir. 1991); S&M Inv. Co. v. Tahoe Regl. Planning
Agency, 911 F.2d 324 (9th Cir. 1990); Watkins v. United States
Army, supra; Morgan v. Heckler, 779 F.2d 544 (9th Cir. 1985);
Jablon v. United States, 657 F.2d 1064, 1067 n.5 (9th Cir. 1981).
Petitioner argues that respondent should be estopped from
assessing additional estate taxes on two grounds: (1)
Respondent’s closing letter constituted affirmative misconduct on
which petitioner relied to its detriment; and (2) respondent
failed to follow the procedures for reopening a case outlined in
the Internal Revenue Manual (the Manual) and closing letter.
There is no doubt that the Ogden Service Center’s closing
letter was erroneous. It, however, appears from the sparse
record on this point that the error occurred because an Ogden
Service Center employee neglected to check the estate’s
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