Taylor Miller - Page 26




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          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 of            





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