US V. Plantier, et al.

2004 DNH 172

• Court: District Court, D. New Hampshire
• Decided: November 29, 2004
• Docket: CV-02-599-SM
• Status: Published

Opinion

US V. Plantier, et al. CV-02-599-SM 11/29/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America, Plaintiff

v. Civil No. 02-599-SM Opinion No. 2004 DNH 172 Dick Plantier and Corrine Doe, f/k/a Corrine Plantier, Defendants

O R D E R

The United States has sued Dick Plantier and his former

wife, Corrine Doe, in order to reduce to judgment outstanding

liabilities for federal taxes, interest and penalties. Before

the court is the government's motion for summary judgment.

Defendant, Dick Plantier, objects.1 For the reasons given, the

government's motion for summary judgment is granted.

Resolution of this dispute turns on a single issue: whether

defendant is entitled to a trial on his asserted eguitable

estoppel defense. Plantier says that the government should not

1 Defendant Corrine Doe apparently resides in Australia. She has not appeared, and it is unclear from the record whether she has been served. be allowed to invoke his earlier agreement to suspend the

statutory limitations period that governs collection of taxes by

the Internal Revenue Service ("IRS").2 That agreement was

memorialized in an August 26, 1998, "Offer in Compromise" (Form

656) executed by both defendants and an authorized representative

of the IRS. (Pl.'s Mot. Summ. J., Ex. 13.) According to

Plantier, the United States should be estopped from relying upon

that waiver because he and his former wife agreed to suspend the

limitations period in reliance upon false representations made by

an IRS official, Boyd Chivers. Chivers allegedly told defendants

that their offer to compromise the tax claims would be accepted,

and, say defendants, they would not have agreed to toll the

limitations period but for that representation. Defendant's

argument is without merit.

"The doctrine of eguitable estoppel in its traditional

incarnation does not apply against the federal government."

Frillz, Inc. v. Lader, 104 F.3d 515, 518 (1st Cir. 1997) (citing

PPM v. Richmond, 496 U.S. 414, 419 (1990); United States v. Ven-

2 At no point has defendant ever indicated that he challenges the validity or amount of the tax liability assessed against him.

2 Fuel, Inc., 758 F.2d 741, 761 (1st Cir. 1985); Heckler v. Cmty.

Health Servs., 467 U.S. 51, 67 (1984) (Rehnquist, J., concurring)

(noting that the Supreme Court has never upheld an estoppel claim

against the government)). For the doctrine to apply at all, "[a]

party . . . 'must have reasonably relied on some "affirmative

misconduct" attributable to the sovereign.'" Frillz, 104 F.3d at

518 (quoting Ven-Fuel, 758 F.2d at 761)).

Here, the "affirmative misconduct" on which defendant relies

is Boyd Chivers's allegedly false statement that the Plantiers'

offer in compromise would be accepted by other IRS officials who

had the authority (and discretion) to accept or reject it.

According to defendant, Chivers's statement that the offer would

be accepted was a statement of material fact because it came from

an experienced IRS officer. Defendant is mistaken.

Chivers's statement, as reported, constituted at most an

opinion in the form of a prediction. And, as defendant correctly

acknowledges, opinions do not qualify as statements of fact for

purposes of equitable estoppel. Moreover, as it is undisputed

that Chivers was not the official making the decision, his

3 statement cannot be characterized as a promise (a form of

statement that can constitute a false representation, if made by

a promisor who knows that he or she does not intend to keep the

promise made). As Plantier has acknowledged: "I don't think he

[Chivers] was dishonest with me in representing to me that this

offer would be accepted. But as we can see in hindsight, there

are things beyond his control." (Pl.'s Obj. to Summ. J., Ex. A.

(Plantier Dep.) at 75.) At best, defendant might prove that

Chivers incorrectly predicted what IRS agents with decision­

making authority over the Offer in Compromise would decide, but,

as a matter of law, that showing would fall far short of meeting

the "affirmative misconduct" test.

Because defendant is not entitled to avoid his agreement to

extend the limitations period, and because there is no other

legal or factual issue in dispute (defendant does not dispute

that he is otherwise liable to the IRS in the amount claimed),

the United States is entitled to judgment as a matter of law.

Accordingly, plaintiff's motion for summary judgment (document

no. 17) is granted as to Dick Plantier.

4 Regarding Corrine Doe, the government shall show cause,

within twenty days of the date of this order, why the case

against Corrine Doe should not be dismissed, without prejudice,

for failure to effect service of process (the record does not

evidence service upon Defendant Corrine Doe).

SO ORDERED.

Steven J. McAuliffe United States District Judge

November 2 9, 2 004

cc: Thomas P. Cole, Esg. Scott H. Harris, Esg.