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estoppel is claimed; and (5) adverse effects of the acts or
statement of the one against whom estoppel is claimed. Norfolk
S. Corp. v. Commissioner, 104 T.C. 13, 60 (1995), affd. 140 F.3d
240 (4th Cir. 1998).
In addition to the traditional elements of equitable
estoppel, the Court of Appeals for the Ninth Circuit, to which
appeal lies in these cases, requires the party seeking to apply
the doctrine against the Government to prove affirmative
misconduct. Purcell v. United States, 1 F.3d 932, 939 (9th Cir.
1993). The aggrieved party must prove “‘affirmative misconduct
going beyond mere negligence’” and, even then, “‘estoppel will
only apply where the government’s wrongful act will cause a
serious injustice, and the public’s interest will not suffer
undue damage by imposition of 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.
Purcell v. United States, supra at 940. Affirmative misconduct
is a threshold issue to be decided before determining whether the
traditional elements of equitable estoppel are present. Id. at
939.
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