- 18 - (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 mayPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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