- 39 -
Emerson v. Commissioner, 67 T.C. 612, 617 (1977)), affd. 810 F.2d
209 (D.C. Cir. 1987), and it applies only if: (1) There is a
false representation or wrongful misleading silence; (2) the
error is in a statement of fact and not in an opinion or a
statement of law; (3) the person claiming the benefits of
estoppel is ignorant of the true facts; and (4) the person
claiming the benefits of estoppel is adversely affected by the
acts or statements of the person against whom an estoppel is
claimed, Estate of Emerson v. Commissioner, supra at 617-618;
Foam Recycling Associates v. Commissioner, T.C. Memo. 1992-645,
affd. without published opinion 159 F.3d 1346 (2d Cir. 1998).
In the Ninth Circuit, in which this case is appealable, “the
aggrieved party must also demonstrate ‘affirmative conduct going
beyond mere negligence’ and “that the government’s act will cause
a serious injustice and the imposition of estoppel will not
unduly harm the public interest”. Purcell v. United States, 1
F.3d 932, 939 (9th Cir. 1993) (quoting S & M Inv. Co. v. Tahoe
Regl. Planning Agency, 911 F.2d 324, 329 (9th Cir. 1990)).
“Affirmative misconduct involves ‘“ongoing active
misrepresentations” or a “pervasive pattern of false promises”’
as opposed to ‘an isolated act of providing misinformation.’”
Id. at 940 (quoting S & M Inv. Co. v. Tahoe Regl. Planning
Agency, supra at 329 (quoting Watkins v. United States Army, 875
F.2d 699, 708 (9th Cir. 1990))).
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