                                                                             FILED
                            NOT FOR PUBLICATION                              DEC 17 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 14-15015

              Plaintiff - Appellee,              D.C. No. 2:11-cv-03079-GEB-
                                                 EFB
 v.

STANLEY K. BURRELL; STEPHANIE                    MEMORANDUM*
D. BURRELL,

              Defendants - Appellants,

  and

IMAGE, LIKENESS, POWER LLC,

              Defendant.


                   Appeal from the United States District Court
                       for the Eastern District of California
              Garland E. Burrell, Jr., Senior District Judge, Presiding

                           Submitted December 10, 2015**
                              San Francisco, California

Before: GRABER, WARDLAW, and MURGUIA, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      Defendants Stanley and Stephanie Burrell appeal from a judgment in favor

of the United States for 1996 and 1997 income taxes. On de novo review of this

summary judgment, Baccei v. United States, 632 F.3d 1140, 1144 (9th Cir. 2011),

we affirm.

      Like the district court, we reject Defendants’ argument that the government

was equitably estopped from collecting the 1996 and 1997 taxes. Defendants

argue for estoppel based on the government’s failure to include those taxes in a

proof of claim in their bankruptcy proceeding, along with a stipulation entered into

in 2000 stating that "the only amount [of tax] due and owing" at the time was a

portion of Defendants’ 1995 tax liability.

      To establish equitable estoppel against the government, Defendants must

show not only the traditional elements of the doctrine, but also "both (1)

affirmative misconduct on the part of the government and (2) that the

government’s wrongful act will cause a serious injustice, and the public’s interest

will not suffer undue damage." Indus. Customers of Nw. Utils. v. Bonneville

Power Admin., 767 F.3d 912, 928 (9th Cir. 2014) (internal quotation marks

omitted). The evidence fails to establish either of those elements.

      Affirmative misconduct means "a deliberate lie or a pattern of false

promises." Elim Church of God v. Harris, 722 F.3d 1137, 1144 (9th Cir. 2013)


                                             2
(internal quotation marks omitted). Here, the government did not commit

affirmative misconduct. See Baccei, 632 F.3d at 1147 (IRS did not commit

affirmative misconduct by failing to notify defendant that his extension request

was invalid). Although the government’s failure to include the 1996 and 1997

income tax liabilities in the proof of claim, and its signing of the stipulation, may

have been negligent, negligence does not support a claim of equitable estoppel

against the government. Id.

      And holding Defendants accountable for their unpaid taxes will not cause a

serious injustice. Defendants’ counsel told the bankruptcy court in 1998 that

Defendants were aware of the 1996 and 1997 tax liabilities and that they had

worked out a separate post-bankruptcy payment plan with the government.

Counsel also represented to the bankruptcy court that the 1996 and 1997 taxes,

which would be paid later, would not have a negative effect on payments to

unsecured creditors.

      AFFIRMED.




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