Crow v. Nebraska Dept. of Rev.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CROW v. NEBRASKA DEPT. OF REV.
Cite as 316 Neb. 154
Allen Crow, appellant, v. Nebraska
Department of Revenue, appellee.
___ N.W.3d ___
Filed March 15, 2024. 	No. S-23-060.
1. Administrative Law: Taxation: Final Orders: Appeal and Error.
Any final action of the Tax Commissioner may be appealed, and the
appeal shall be in accordance with the Administrative Procedure Act.
2. Administrative 	Law: 	Judgments: 	Appeal 	and 	Error. 	In 	an
Administrative Procedure Act review proceeding, the district court
reviews the agency’s decision de novo on the record of the agency and
may affirm, reverse, or modify the decision of the agency or remand the
cause for further proceedings.
3. ____: ____: ____. In an appeal under the Administrative Procedure Act,
an appellate court may reverse, vacate, or modify the judgment of the
district court for errors appearing on the record.
4. ____: ____: ____. When reviewing an order of a district court under
the Administrative Procedure Act for errors appearing on the record, the
inquiry is whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unreasonable.
5. Estoppel. Although a party can raise estoppel claims in both legal and
equitable actions, estoppel doctrines have their roots in equity.
6. Laches: Equity. The defense of laches is equitable in nature.
7. Equity: Appeal and Error. In reviewing judgments and orders dispos-
ing of claims sounding in equity, an appellate court decides factual
questions de novo on the record and reaches independent conclusions on
questions of fact and law.
8. Taxation: Property. Nebraska imposes a tax on each item of tangible
personal property in this state at some point in the chain of commerce,
unless the item is specifically excluded from taxation. If the item is
purchased in Nebraska, the sales tax applies, and if the item is pur-
chased outside Nebraska, the use tax applies. Nebraska’s sales and use
taxes are thus interrelated, and together, they provide a uniform tax
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:34 AM CDT

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CROW v. NEBRASKA DEPT. OF REV.
Cite as 316 Neb. 154
upon the sale, lease, rental, use, storage, distribution, or other consump-
tion of all tangible personal property.
9. Taxation: Proof. In proceedings before the Tax Commissioner, the tax-
payer generally has the burden of proof.
10. Judgments: Appeal and Error. In conducting such a review for errors
appearing on the record, an appellate court will not substitute its factual
findings for those of the district court where competent evidence sup-
ports those findings.
11. Intent: Proof: Circumstantial Evidence. Intent is a question of fact,
which may be determined by circumstantial evidence.
12. Estoppel. Equitable estoppel generally bars a party from relief because
of its prior actions.
13. Political Subdivisions: Estoppel: Equity. The State and its political
subdivisions can be equitably estopped, but the doctrine of equitable
estoppel will not be invoked against a governmental entity except under
compelling circumstances where right and justice so demand; in such
cases, the doctrine is to be applied with caution and only for the purpose
of preventing manifest injustice.
14. Estoppel. The elements of equitable estoppel are, as to the party
estopped: (1) conduct which amounts to a false representation or con-
cealment of material facts, or at least which is calculated to convey
the impression that the facts are otherwise than, and inconsistent with,
those which the party subsequently attempts to assert; (2) the intention,
or at least the expectation, that such conduct shall be acted upon by, or
influence, the other party or other persons; and (3) knowledge, actual
or constructive, of the real facts. As to the other party, the elements
of equitable estoppel are: (1) lack of knowledge and of the means of
knowledge of the truth as to the facts in question; (2) reliance, in good
faith, upon the conduct or statements of the party to be estopped; and
(3) action or inaction based thereon of such a character as to change
the position or status of the party claiming the estoppel, to his or her
injury, detriment, or prejudice.
15. Laches. The defense of laches is not favored in Nebraska.
16. ____. Laches occurs only if a litigant has been guilty of inexcus-
able neglect in enforcing a right and his or her adversary has suffered
prejudice.
17. Laches: Equity. Laches does not result from the mere passage of time,
but because during the lapse of time, circumstances changed such that to
enforce the claim would work inequitably to the disadvantage or preju-
dice of another.
18. Laches. What constitutes laches depends on the circumstances of
the case.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CROW v. NEBRASKA DEPT. OF REV.
Cite as 316 Neb. 154
19. ____. Laches cannot be applied where there has been no material change
in a party’s position.
20. Laches: Political Subdivisions. As a general rule, the doctrine of laches
cannot be applied against public rights. In other words, laches is not
available against the government or state in a suit by it to enforce a
public right or to protect a public interest.
Appeal from the District Court for Lancaster County: Lori
A. Maret, Judge. Affirmed.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellant.
Michael T. Hilgers, Attorney General, and L. Jay Bartel for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
I. NATURE OF CASE
In 2007, the Nebraska Department of Revenue (Department)
assessed a tax deficiency against Direct Media Marketing, Inc.
(Direct Media), and Direct Media filed a protest and petition
for redetermination. Direct Media did not request a hearing,
nor did it make a payment to the Department. Years passed
without a hearing, and Direct Media’s petition for redetermi-
nation remained unresolved. Direct Media ceased operations
in 2011.
In 2021, the Department issued a notice and demand for
payment to Allen Crow as a responsible officer of Direct
Media. Crow petitioned the Department for redetermination
of the amount assessed and of his liability as the respon-
sible officer for Direct Media’s taxes. The Tax Commissioner
(Commissioner) held a consolidated hearing on both Direct
Media’s petition for redetermination and Crow’s petition for
redetermination and, in two separate orders, ruled against
Direct Media and Crow. Crow sought review in the district
court for Lancaster County pursuant to the Administrative

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CROW v. NEBRASKA DEPT. OF REV.
Cite as 316 Neb. 154
Procedure Act, see Neb. Rev. Stat. § 84-917 (Cum. Supp.
2022), specifically addressing the order concerning officer
liability. The district court affirmed. Crow appeals from the
order of the district court. We affirm.
II. STATEMENT OF FACTS
1. Direct Media Audit and Tax
Deficiency Determination
Direct Media, a direct mail processor, operated from the
1980s through 2011. Crow was a corporate officer of Direct
Media. In 2007, the Department audited Direct Media for
the period from January 1, 2001, to January 31, 2007, and
examined invoices for supplies Direct Media purchased for its
business, mostly from out-of-state vendors. As a result of this
audit, the Department issued a notice of deficiency determina-
tion to Direct Media and assessed unpaid use taxes against
Direct Media. Crow received audit schedules and explanations
of what was due from Direct Media. Crow was advised of the
information that would be required to remove line items from
the assessment. Crow’s representative conceded that some
deficiency was due. In September 2007, Direct Media filed
a protest and petition for redetermination of the assessment,
and several filings were made in Direct Media’s protest case
through October 2010. The hearing officer recused herself in
2010, and there is no evidence that any further action was
taken on the case until 2021.
2. Direct Media Does Not Pay Taxes
and Ceases Operations
Direct Media lost major customers in 2008 and 2009, and
ultimately, it ceased operations in 2011. In his role as an
officer, Crow made decisions for Direct Media regarding the
disbursement of funds and the payment of creditors for Direct
Media. According to Crow’s testimony, when Direct Media
ceased operations, it paid its bank loan with proceeds of the
sale of hard assets, and there were some assets left over that

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CROW v. NEBRASKA DEPT. OF REV.
Cite as 316 Neb. 154
Crow took to his next employer. The Commissioner found that
Crow’s testimony “made clear that lack of funds to pay bills
was not the reason for the failure of [Direct Media] to pay the
taxes. Instead, it was because [Crow] did not believe he had
to pay the taxes yet” because the protest of the taxes had not
been decided.
3. Corporate Officer
Liability for Crow
The parties agree that Crow served as the president, vice
president, secretary, and treasurer of Direct Media, which
operated from the 1980s through 2011. Crow had significant
ownership of Direct Media and oversaw its corporate financial
affairs. He had the authority to hire and fire employees for
Direct Media, controlled its bank accounts, and had check-
signing authority. He made decisions regarding the disburse-
ment of funds and the payment of creditors.
In February 2021, the Department issued a notice and
demand for payment pursuant to Neb. Rev. Stat. § 77-1783.01
(Reissue 2018) that alleged that Crow was a responsible
officer personally liable for the amount of Direct Media’s
assessed taxes. Crow filed a petition for redetermination and
a request for hearing, which sought to redetermine the amount
of any sales or use taxes found to be due and owing by Direct
Media and to redetermine his liability as a responsible officer.
Specifically, Crow alleged that he had acted reasonably and
thus was not liable for the taxes. Crow asserted in the alter-
native that because of the Department’s lack of diligence in
Direct Media’s protest case, the Commissioner should apply
equitable principles to prevent injustice and forbear from
ordering Crow to pay Direct Media’s tax liability. Crow also
challenged the amount of taxes owed by Direct Media and
the interest assessment, and he further stated that he had rea-
sonably believed that some of the payments made by Direct
Media were exempt from sales and use taxes or had already
been paid.

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CROW v. NEBRASKA DEPT. OF REV.
Cite as 316 Neb. 154
4. Department Hearing and Two Orders
Direct Media’s petition for redetermination of its deficiency
determination and Crow’s petition for redetermination of his
officer liability were consolidated for hearing. In two orders,
the Commissioner, on behalf of the Department, affirmed the
deficiency determination against Direct Media in the case
against Direct Media and separately affirmed Crow’s personal
liability for the payment of taxes as the responsible officer of
Direct Media in the case against Crow.
At 	the 	consolidated 	hearing, 	the 	issues 	before 	the
Commissioner on Crow’s petition were (1) whether Crow
rebutted the presumption that Direct Media owed the use
taxes and (2) whether Crow was liable for the taxes as the
responsible officer for Direct Media by willfully failing to
have Direct Media pay taxes owed by Direct Media.
The 	Commissioner 	first 	addressed 	Crow’s 	challenge 	to
the amount of taxes owed by Direct Media for which the
Department sought to hold him personally liable. At the hear-
ing, the parties to the consolidated docket stipulated that
“[i]f the liability is upheld against Direct Media . . . the correct
amount due is $51,233.54 in tax, $5,168 in penalty, and all
accrued and accruing interest.”
Turning to the question of whether liability existed, the
Commissioner noted that Direct Media had been unable to
rebut the presumption that it was liable for use taxes or rebut
the amount of the taxes. Despite the Department’s substantial
delay in conducting the proceedings, the Commissioner found
that Direct Media could have asked for a hearing at any point.
Further, the Commissioner found that Crow did not show he
was prejudiced by the Department’s delay in resolving the
protest of Direct Media’s liability, because even at the time
of the audit in 2007, Direct Media did not possess complete
records to rebut the presumption that the taxes assessed
against it are correct. In this regard, Crow had testified that
Direct Media kept records for only 3 to 5 years, so it lacked
the complete records necessary for the 2007 audit, and that

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CROW v. NEBRASKA DEPT. OF REV.
Cite as 316 Neb. 154
at that time, its records were for only the 3 years prior to
the audit.
The Commissioner also reviewed Crow’s testimony sug-
gesting, based on his telephone conversations with some ven-
dors, that some taxes had been collected in connection with
some transactions. However, Crow did not produce documen-
tary evidence that showed taxes had been paid or suggested
that transactions and invoices identified by the Department
were not subject to taxes. The Commissioner determined
that Direct Media failed to carry its burden to show that the
assessment of tax deficiency against it was incorrect and
affirmed the Department’s deficiency determination against
Direct Media.
Regarding the issue of whether Crow was responsible for
Direct Media’s liability, the record shows that the parties stip-
ulated to Crow’s activities and control of finances for Direct
Media. The Commissioner determined that Crow oversaw
the financial affairs of Direct Media and was a responsible
officer of Direct Media for purposes of § 77-1783.01. See
316 Neb. Admin. Code, ch. 36, § 013.01A (2014). Crow does
not dispute that he was a responsible officer of Direct Media.
However, he continues to contend that he could not be liable
for Direct Media’s use tax deficiency, because there was no
“willful failure” on his part to pay Direct Media’s taxes. Crow
claimed that it was reasonable for him to assume that Direct
Media did not need to pay the taxes, because of the pend-
ing protest.
The Commissioner found that Crow had chosen to pay
all other expenses and creditors of Direct Media but not
the use tax deficiency, even though Crow was aware of the
deficiency determination and knew that Direct Media lacked
records for many of the audit years. The Commissioner found
that Crow failed to show that on behalf of Direct Media, he
did not intentionally, consciously, and voluntarily fail to pay
taxes that were due and owing. The Commissioner denied
Crow’s petition for redetermination of notice of deficiency

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Nebraska Supreme Court Advance Sheets
316 Nebraska Reports
CROW v. NEBRASKA DEPT. OF REV.
Cite as 316 Neb. 154
determination and affirmed the Department’s notice of defi-
ciency determination for Crow.
5. Petition for Review to District Court,
and District Court Order
Crow filed a petition for review in the district court for
Lancaster County, challenging the outcome of the Department
proceedings as being unsupported by competent evidence, arbi-
trary or capricious, or affected by errors of law. See Neb. Rev.
Stat. § 77-27,127 (Reissue 2018) and § 84-917. Crow attached
the Commissioner’s order in Crow’s case in which he sought
a redetermination of his liability as a responsible officer of
Direct Media.
The district court affirmed the Commissioner’s order. In its
order, the district court stated that Crow had filed a petition for
review but Direct Media had not and that
[t]hus, the matter docketed [as Crow’s responsible officer
matter] is before this Court but not the matter docketed
as [Direct Media’s deficiency]. Under the relevant statute,
however, [Crow] can challenge both the amount of Direct
Media’s unpaid taxes and [his] personal liability therefor.
See Neb. Rev. Stat. § 77-1783.01(2) . . . .
With regard to the amount of Direct Media’s use tax liabil-
ity, the court stated that Crow’s testimony—to the effect that
he had talked to some vendors who had told him they col-
lected sales tax—had not rebutted the presumption that the
deficiency amount was correct, especially in light of the fact
that the Department’s auditor had reviewed actual invoices
for the majority of the payments on which sales taxes had not
been collected. The court also cited a concession by Crow’s
representative in a 2008 letter that some of the deficiency
was due.
The district court addressed whether Crow’s decision not
to pay Direct Media’s taxes amounted to a “willful failure”
sufficient to hold him liable as a responsible corporate officer
under § 77-1783.01. The court found it significant that Crow

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316 Nebraska Reports
CROW v. NEBRASKA DEPT. OF REV.
Cite as 316 Neb. 154
was aware of Direct Media’s tax debt as of 2007, yet subse-
quently paid other debts of the company. The court agreed with
the Commissioner’s conclusion that there was no evidence that
Crow was prejudiced by the delay in the Department’s pros-
ecution of the matter. Regarding Crow’s request for equitable
relief under the theory of laches based on the unexplained
significant delays in the case, the district court concluded that
laches should not be applied against the government, espe-
cially where there was no prejudice shown to the party seeking
the relief.
Crow appeals.
III. ASSIGNMENTS OF ERROR
Crow assigns, summarized and restated, that the district
court erred when it determined that (1) Crow failed to rebut
the presumption that the use tax deficiency assessment against
Direct Media was correct; (2) Crow was personally liable for
Direct Media’s unpaid taxes because, as a responsible officer,
he willfully failed to pay the taxes; and (3) equitable relief
was not justified in this case.
IV. STANDARDS OF REVIEW
[1,2] Any final action of the Commissioner may be appealed,
and the appeal shall be in accordance with the Administrative
Procedure Act. Houghton v. Nebraska Dept. of Rev., 308 Neb.
188, 953 N.W.2d 237 (2021). In an Administrative Procedure
Act review proceeding, the district court reviews the agency’s
decision de novo on the record of the agency and may affirm,
reverse, or modify the decision of the agency or remand the
cause for further proceedings. Houghton v. Nebraska Dept. of
Rev., supra.
[3,4] In an appeal under the Administrative Procedure Act,
an appellate court may reverse, vacate, or modify the judg-
ment of the district court for errors appearing on the record.
Houghton v. Nebraska Dept. of Rev., supra. When reviewing
an order of a district court under the Administrative Procedure
Act for errors appearing on the record, the inquiry is whether

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CROW v. NEBRASKA DEPT. OF REV.
Cite as 316 Neb. 154
the decision conforms to the law, is supported by competent
evidence, and is neither arbitrary, capricious, nor unreasonable.
Houghton v. Nebraska Dept. of Rev., supra.
[5-7] Although a party can raise estoppel claims in both
legal and equitable actions, estoppel doctrines have their roots
in equity. Nelssen v. Ritchie, 304 Neb. 346, 934 N.W.2d 377
(2019). The defense of laches is also equitable in nature. In re
Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020). In
reviewing judgments and orders disposing of claims sounding
in equity, we decide factual questions de novo on the record
and reach independent conclusions on questions of fact and
law. Nelssen v. Ritchie, supra.
V. ANALYSIS
Crow claims that the district court erred in several respects.
Below, we discuss each of his assignments of error and deter-
mine that the record supports the district court’s determina-
tions that (1) the amount of the tax assessment against Direct
Media was not rebutted; (2) as a corporate officer, Crow will-
fully failed to pay Direct Media’s tax liability; and (3) Crow is
not entitled to equitable relief against the Department.
1. Amount of Direct Media’s
Unpaid Taxes
In its de novo review, the district court determined that
Crow failed to rebut the presumption that the use tax defi-
ciency assessment against Direct Media was correct. We find
no errors appearing on the record and reject this assignment
of error.
[8] Nebraska imposes a tax on each item of tangible per-
sonal property in this state at some point in the chain of com-
merce, unless the item is specifically excluded from taxation.
Big Blue Express v. Nebraska Dept. of Rev., 309 Neb. 838,
962 N.W.2d 528 (2021). Currently, if the item is purchased in
Nebraska, the sales tax applies, and if the item is purchased
outside Nebraska, the use tax applies. Id. Accord Neb. Rev.
Stat. § 77-2703 (Cum. Supp. 2022). Nebraska’s sales and

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CROW v. NEBRASKA DEPT. OF REV.
Cite as 316 Neb. 154
use taxes are thus interrelated, and together, they provide a
uniform tax upon the sale, lease, rental, use, storage, distribu-
tion, or other consumption of all tangible personal property.
Big Blue Express v. Nebraska Dept. of Rev., supra. A taxpayer
does not owe the use tax if the seller paid the sales tax on the
purchase. § 77-2703(2)(a). An out-of-state vendor not engaged
in business in Nebraska may have had no obligation to collect
Nebraska sales tax until South Dakota v. Wayfair, Inc., 585
U.S. 162, 138 S. Ct. 2080, 201 L. Ed. 2d 403 (2018), but use
tax has been due on all purchases for which sales tax was not
remitted, since the adoption of the Nebraska Revenue Act of
1967. See Neb. Rev. Stat. § 77-2701 et seq. (Reissue 2018 and
Cum. Supp. 2022).
[9] In proceedings before the Commissioner, the taxpayer
generally has the burden of proof. § 77-2781. Crow stipulated
at the hearing that “[i]f the liability is upheld against Direct
Media . . . the correct amount due is $51,233.54 in tax, $5,168
in penalty, and all accrued and accruing interest.” Even though
this stipulation exists in the record, Crow claims he carried
the burden of proof and rebutted the correctness of the amount
of use taxes assessed, based on his testimony that suggested
some taxes may have been paid in connection with transac-
tions with some of Direct Media’s vendors.
[10] Our decision is driven by our standard of review.
Houghton v. Nebraska Dept. of Rev., 308 Neb. 188, 953
N.W.2d 237 (2021). As recited above, this court’s review is not
de novo. Id. Instead, we review the district court’s order for
errors appearing on the record. Id. We are not entitled to weigh
evidence or decide issues anew. Acklie v. Nebraska Dept. of
Rev., 313 Neb. 28, 982 N.W.2d 228 (2022). In conducting such
a review, we will not substitute our factual findings for those
of the district court where competent evidence supports those
findings. Houghton v. Nebraska Dept. of Rev., supra.
The record shows that the Department relied on Direct
Media’s invoices to determine whether taxes had been paid
in connection therewith. The deficiency determination was

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CROW v. NEBRASKA DEPT. OF REV.
Cite as 316 Neb. 154
based on invoices for about three-quarters of the payments
showing no taxes were paid. Crow offered no documentary
evidence showing collection of the taxes for payments where
the invoice lacked documentation of taxes, or for payments
without an invoice. The record supports the district court’s
determination that Crow did not rebut the presumption that
the use taxes assessed against Direct Media were correct. This
assignment of error is without merit.
2. Crow’s Personal Liability
for Direct Media’s Taxes
Crow next claims that his decision not to pay Direct Media’s
use taxes was reasonable and not “willful failure” as contem-
plated in § 77-1783.01, because Direct Media had protested the
deficiency determination. We disagree.
Section 77-1783.01(1) regarding liability of responsible offi-
cers provides, in relevant part:
(1) Any officer or employee with the duty to col-
lect, account for, or pay over any taxes imposed upon a
corporation or with the authority to decide whether the
corporation will pay taxes imposed upon a corporation
shall be personally liable for the payment of such taxes
in the event of willful failure on his or her part to have a
corporation perform such act.
There is no dispute in this case that Crow is a responsible offi-
cer under § 77-1783.01(1).
[11] Crow contends that the district court erred when it
found on de novo review that insofar as Crow is a responsible
officer, there was a “willful failure” on his part to have Direct
Media pay the taxes. Under the corporate officer or employee
personal liability statute, willful failure is defined to mean
“that failure which was the result of an intentional, conscious,
and voluntary action.” § 77-1783.01(7)(c). Intent is a question
of fact, which may be determined by circumstantial evidence.
Houghton v. Nebraska Dept. of Rev., supra.

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CROW v. NEBRASKA DEPT. OF REV.
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The district court applied this definition and found that
Crow willfully failed to have Direct Media pay its taxes. It
found that Crow was personally involved in paying vendors
and was subjectively aware of Direct Media’s tax debt by
August 31, 2007, the date of the deficiency determination,
and noted evidence that Crow may have known earlier. Crow
was informed by the Department’s auditor of the results of the
audit, was shown the audit schedules, and learned what was
needed to remove items from the assessment of the deficiency.
As noted above, in reviewing the district court’s order for
errors appearing on the record, we will not substitute our
factual findings for those of the district court where compe-
tent evidence supports those findings. Houghton v. Nebraska
Dept. of Rev., supra. Here, such evidence supports the district
court’s factual findings. The evidence shows that despite
learning of Direct Media’s unpaid taxes, Crow deliberately
chose to pay other creditors over the next 4 years. When
Direct Media ceased operations, Crow elected to pay a bank
loan and take assets to his next employment rather than pay-
ing the unpaid deficiency. The Nebraska Administrative Code
provides that “[e]vidence of willfulness” is shown where a
responsible party is aware taxes are due and owing and nev-
ertheless pays other creditors. 316 Neb. Admin. Code, ch. 36,
§ 013.01B(1) and (2).
We further note that although Direct Media had protested
the tax assessment, Crow could not reasonably have believed
that the tax assessment would be rebutted in any significant
way, since Direct Media did not possess supporting records
to prove that taxes were paid. Crow knew that Direct Media
owed taxes and, given its document retention policy, knew
that Direct Media lacked evidence to show the deficiency
assessment was in error. The record supports the district
court’s findings that under the plain and ordinary meaning
of § 77-1783.01, Crow willfully failed to pay Direct Media’s
taxes. The district court did not err when it determined that
Crow was a responsible officer who willfully failed to pay

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CROW v. NEBRASKA DEPT. OF REV.
Cite as 316 Neb. 154
Direct Media’s use taxes under § 77-1783.01. We reject
Crow’s second assignment of error.
3. Equitable Relief
Notwithstanding that Crow willfully failed to have Direct
Media pay the taxes owed, he seeks equitable relief based on
the Department’s delay in pursuing this case. Crow observes
that the demand for payment by Crow as a responsible officer
was issued in 2021, a decade after Direct Media ceased opera-
tions and 20 years after the first transactions giving rise to the
underlying audit. It appears from the record that after Direct
Media’s protest of the deficiency determination was dock-
eted, several filings were made. But after the hearing officer
recused herself in 2010, no further action was taken until July
2021. During this gap between 2010 and 2021, neither Direct
Media nor the Department requested a hearing on Direct
Media’s petition to redetermine the use tax assessment. Crow
claims that equitable principles should be applied to avoid
injustice. Below, we analyze Crow’s request for application
of equitable estoppel and laches that, if applied, Crow asserts
would permit him to avoid being liable for Direct Media’s
unpaid taxes. We determine that despite the lengthy delays in
this case, Crow was not prejudiced and the facts of this case
do not support equitable relief.
(a) Equitable Estoppel
[12] Crow seeks relief based on a theory of equitable estop-
pel. Equitable estoppel generally bars a party from relief
because of its prior actions. See Berrington Corp. v. State, 277
Neb. 765, 765 N.W.2d 448 (2009). In this case, Crow seeks to
estop the Department from achieving relief because it delayed
pursuing this case. We find equitable estoppel inapplicable to
this case.
[13] The State and its political subdivisions can be equita-
bly estopped, but the doctrine of equitable estoppel will not
be invoked against a governmental entity except under com-
pelling circumstances where right and justice so demand; in

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such cases, the doctrine is to be applied with caution and only
for the purpose of preventing manifest injustice. Id.
[14] The elements of equitable estoppel are, as to the party
estopped:
(1) conduct which amounts to a false representation or
concealment of material facts, or at least which is calcu-
lated to convey the impression that the facts are otherwise
than, and inconsistent with, those which the party subse-
quently attempts to assert; (2) the intention, or at least the
expectation, that such conduct shall be acted upon by, or
influence, the other party or other persons; and (3) knowl-
edge, actual or constructive, of the real facts.
Id. at 774, 765 N.W.2d at 455.
As to the other party, the elements are:
(1) lack of knowledge and of the means of knowledge
of the truth as to the facts in question; (2) reliance, in
good faith, upon the conduct or statements of the party
to be estopped; and (3) action or inaction based thereon
of such a character as to change the position or status of
the party claiming the estoppel, to his or her injury, detri-
ment, or prejudice.
Id.
With respect to estopping the Department from assessing
taxes against Crow, this theory fails at the onset. Crow did not
allege, nor did any evidence show, that the Department made
a misrepresentation or represented any position other than the
position that Direct Media owed unpaid use taxes. A taxpayer
cannot ignore ongoing proceedings to redetermine assessed
taxes in the hope that the tax assessment may be relieved by
the errors or negligence of government employees. Neither
Direct Media nor Crow ever possessed sufficient evidence to
rebut the presumption that the deficiency determination was
correct, and Crow could not reasonably rely on procedural
delays in the hope that the passage of time would satisfy the
unpaid taxes. To the extent that Crow’s third assignment of
error is based on equitable estoppel, it is without merit.

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(b) Laches
[15-19] Crow also argues that application of the doctrine
of laches precludes him from being found liable for Direct
Media’s unpaid taxes. We have explained that the defense of
laches is not favored in Nebraska. In re Estate of Adelung, 306
Neb. 646, 947 N.W.2d 269 (2020). Laches occurs only if a liti-
gant has been guilty of inexcusable neglect in enforcing a right
and his or her adversary has suffered prejudice. Id. Laches
does not result from the mere passage of time, but because
during the lapse of time, circumstances changed such that to
enforce the claim would work inequitably to the disadvantage
or prejudice of another. Id. What constitutes laches depends on
the circumstances of the case. Cleaver-Brooks, Inc. v. Twin City
Fire Ins. Co., 291 Neb. 278, 865 N.W.2d 105 (2015). Notably,
laches cannot be applied where there has been no material
change in a party’s position. See State v. Jarchow, 219 Neb. 88,
362 N.W.2d 19 (1985).
As an initial matter, we note that because the Department’s
demand on Crow for payment was made no more than 3 years
after the final determination of Direct Media’s liability, it was
timely. See § 77-1783.01(6). In this way, the demand on Crow
was not delayed. Further, as noted above, there is no evidence
in the record that Crow suffered a material change in his posi-
tion or that he was prejudiced by the passage of time in this
case after Direct Media’s protest proceedings stalled. Crow
did not testify or show that his defense was affected, likely
because Direct Media had not possessed complete records at
the time of the audit in 2007, and the existing records showed
the taxes were not paid for many invoices. At that time, Direct
Media kept records for only 3 years in some cases. Thus, there
is no indication that records or material witnesses were lost
due to the passage of time.
[20] While the delay in pursuing Direct Media in this case
was extreme, we must also consider that the activity Crow
wishes to estop is that of the government while carrying out
its “unique governmental functions for the benefit of the

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whole public.” United States v. Georgia-Pacific Company, 421
F.2d 92, 101 (9th Cir. 1970). We have long recognized the gen-
eral rule that the doctrine of laches cannot be applied against
public rights. See State v. Jarchow, supra. We have stated that
laches is not available against the government or state in a suit
by it to enforce a public right or to protect a public interest.
Id. (citing State v. Platte Valley Public Power and Irrigation
District, 143 Neb. 661, 10 N.W.2d 631 (1943)). Courts have
found that the assertion of laches is not available against tax-
ing authorities seeking to collect taxes belatedly. E.g., In re
A-Plus Auto Wholesalers, LLC, 379 B.R. 228 (D. Conn. 2007);
United States v. Huyser, No. 4:23-cv-00144-SHL-SBJ, 2023
WL 6477930 (S.D. Iowa 2023).
The 	government’s 	neglect 	of 	its 	proceedings 	regarding
Direct Media is troubling, and we do not condone the long
delays in this case. However, as the U.S. Supreme Court has
explained, applying laches to the government would violate a
“great public policy,” and the Court has observed:
The government can transact its business only through
its agents[;] and its fiscal operations are so various, and
its agencies so numerous and scattered, that the utmost
vigilance would not save the public from the most seri-
ous losses, if the doctrine of laches can be applied to its
transactions. . . . On the other hand, the mischiefs to the
agents and their sureties would be scarcely less tolerable.
United States v. Kirkpatrick, 22 U.S. (9 Wheat.) 720, 735, 6 L.
Ed. 199 (1824).
Because the Department sought to enforce a public right—to
protect public money—and Crow was not prejudiced by the
passage of time, laches is not a defense to Crow’s liability for
the unpaid use taxes owed by Direct Media. To the extent that
Crow’s third assignment of error is based on laches, it is with-
out merit.
VI. CONCLUSION
The record supports the district court’s determination that
Crow failed to rebut the presumption of correctness of the

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amount of use taxes assessed against Direct Media. Further,
the evidence established that Crow was a responsible officer
of Direct Media and that because of his willful failure to pay
the use taxes for Direct Media, he was personally liable for
the tax deficiency of Direct Media as the district court cor-
rectly determined.
We do not condone the Department’s delay in pursuing
proceedings against Direct Media and Crow. However, in the
absence of demonstrated prejudice, equitable relief does not
absolve Direct Media and Crow of liability in this case. We
affirm the order of the district court that affirmed the order of
the Commissioner.
Affirmed.
Miller-Lerman, J., concurring.
As I read the petition filed in the district court, Crow chal-
lenged his personal liability for Direct Media’s unpaid use
taxes and claimed the evidence was not sufficient to show that,
as a responsible officer, his failure to pay the taxes was will-
ful. His petition attached only the Department’s order regard-
ing his personal liability. Direct Media did not seek judicial
review of the order affirming the amount of Direct Media’s
deficiency determination in its case.
In district court, Crow assigned the following errors to the
decision of the Department regarding his personal responsibil-
ity, which decision was attached to Crow’s petition filed in
district court:
(a) That the evidence was insufficient to establish that
the failure to pay use tax was willful.
(b) The decision was contrary to law.
(c) 	The 	decision 	was 	arbitrary, 	capricious 	and
unreasonable.
(d) That an unreasonable delay of more than 14 years
in the Department’s disposition of an appeal of the
underlying use tax liability of the Company, prejudiced

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Crow in his ability to defendant [sic] against the assess-
ment of the liability against the Company.
(e) That an unreasonable delay of more than 14 years
in the Department’s issuing the officer liability assess-
ment against Crow prejudiced Crow’s ability to defend
against the officer liability assessment and was funda-
mentally unfair.
I do not believe that Crow sought review in district court
of the determination of the amount of the use tax assessed
against Direct Media. Perhaps sensing this ambiguity, the dis-
trict court accommodated Crow by considering both Crow’s
personal liability as a corporate officer and the amount of
Direct Media’s unpaid taxes. The district court stated:
Thus, the matter docketed before the Tax Commissioner
as [Crow’s responsible officer matter] is before this Court
but not the matter docketed as [Direct Media’s defi-
ciency]. Under the relevant statute, however, [Crow] can
challenge both the amount of Direct Media’s unpaid taxes
and [Crow’s] personal liability therefor. See Neb. Rev.
Stat. § 77-1783.01(2) (Reissue 2018).
In support of its decision to consider both Crow’s personal
liability and the amount of the use tax liability of Direct Media,
the district court cited Neb. Rev. Stat. § 77-1783.01(2) (Reissue
2018), which concerns how a corporate officer or employee
files a petition for redetermination with the Department. Under
§ 77-1783.01(2), when an officer or employee files a peti-
tion seeking to challenge a responsible officer assessment by
the Commissioner, the petition may include “a request for
the redetermination of the personal liability of the corporate
officer or employee, the redetermination of the amount of the
corporation’s unpaid taxes, or both.” This statute permits a
taxpayer protestor to combine the issues of personal liability
and the amount of tax into one “petition.” However, the “peti-
tion” referred to in § 77-1783.01(2) is a petition for redeter-
mination filed before the agency, not a petition to the district
court for review under the Administrative Procedure Act.

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See Neb. Rev. Stat. §§ 77-27,127 (Reissue 2018) and 84-917
(Cum. Supp. 2022).
In my view, the district court’s stated reason for examining
both issues was based on an error of law. The trial court read
the statute differently than I do. I believe that based on the
limited scope of Crow’s petition filed in district court, the dis-
trict court should have analyzed only the issue of Crow’s per-
sonal liability. Regarding Crow’s personal liability for Direct
Media’s unpaid use taxes, I agree with the reasoning of the
district court, as affirmed by the majority opinion.
That said, I concur in the result.