- 26 - the liability.’” Purer v. United States, 872 F.2d 277, 278 (9th Cir. 1989) (quoting Wagner v. Director, Fed. Emergency Mgmt. Agency, 847 F.2d 515, 519 (9th Cir. 1988)). Affirmative misconduct requires “ongoing active misrepresentations” or a “pervasive pattern of false promises,” as opposed to an isolated act of providing misinformation. Watkins v. United States Army, 875 F.2d 699, 708 (9th Cir. 1989). Affirmative misconduct is a threshold issue to be decided before determining whether the traditional elements of equitable estoppel are present. See Purcell v. United States, supra at 939. Before beginning the inquiry into whether the no change letter satisfied the conditions for invoking equitable estoppel against respondent, we must isolate and characterize the representation, if any, made by the no change letter. The letter says two things: “We examined your * * * return * * * and made no changes to the tax year reported”, and it alerts the taxpayer to the possibility of a later change if the Service makes a change on examination of an S corporation, trust, or partnership of which the taxpayer is a shareholder, beneficiary, or partner. The letter thereby creates an impression that the return will not be changed in any other circumstances, but this is more a possible inference from silence than an affirmative representation. In this respect, the letter is different from the estate tax closing letters that were considered in Estate ofPage: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Next
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