Kenneth and Dorothy Hitchen - Page 32

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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             

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