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(4th Cir. 1998); Estate of Emerson v. Commissioner, 67 T.C. 612,
617-618 (1977). In addition, the Court of Appeals for the Ninth
Circuit requires the party seeking to apply the doctrine against
the Government to prove affirmative misconduct. Miller v.
Commissioner, T.C. Memo. 2001-55.
Respondent has not explained why the closing notice was sent
to petitioner. Nevertheless, we cannot apply equitable estoppel
against respondent because petitioner timely petitioned the Tax
Court. Thus, he did not rely to his detriment on the closing
notice. Even if petitioner had relied to his detriment, there is
no evidence of affirmative misconduct by respondent. Finally, we
note that section 6212(d) provides the Secretary with the
authority to rescind a notice of deficiency with the consent of
the taxpayer. Where that has not occurred, we have stated that
only a closing agreement or decision by the Court binds the
parties. Miller v. Commissioner, supra. Respondent did not
rescind the notice of deficiency. Because there was no closing
agreement or decision of the Court, the parties are not bound by
the closing notice.
Petitioner also notes that he received a closing notice for
his taxable year 2001. Petitioner appears to argue that the
favorable result reflected in the closing notice for that year
should also apply to his taxable year 2002. We disagree. Each
taxable year stands on its own, and the Commissioner may
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