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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 competent 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 disposing 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 purchased 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/

03/15/2024 08:06 AM CDT
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upon the sale, lease, rental, use, storage, distribution, or other consumption of all tangible personal property.

9. Taxation: Proof. In proceedings before the Tax Commissioner, the taxpayer 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 supports 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 concealment 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 inexcusable 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 prejudice of another.

18. Laches. What constitutes laches depends on the circumstances of 

the case.
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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 redetermination 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 responsible 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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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 determination 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 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 checksigning authority. He made decisions regarding the disbursement 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 alternative 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 reasonably 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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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 hearing, 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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at that time, its records were for only the 3 years prior to 

the audit.

The Commissioner also reviewed Crow’s testimony suggesting, based on his telephone conversations with some vendors, that some taxes had been collected in connection with 

some transactions. However, Crow did not produce documentary 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 stipulated 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 pending 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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determination and affirmed the Department’s notice of deficiency 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, arbitrary 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 liability, the court stated that Crow’s testimony—to the effect that 

he had talked to some vendors who had told him they collected 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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was aware of Direct Media’s tax debt as of 2007, yet subsequently 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 prosecution 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, especially 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 judgment 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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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 determine that the record supports the district court’s determinations that (1) the amount of the tax assessment against Direct 

Media was not rebutted; (2) as a corporate officer, Crow willfully 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 deficiency 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 personal property in this state at some point in the chain of commerce, 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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use taxes are thus interrelated, and together, they provide a 

uniform tax upon the sale, lease, rental, use, storage, distribution, 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 transactions 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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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 contemplated in § 77-1783.01, because Direct Media had protested the 

deficiency determination. We disagree.

Section 77-1783.01(1) regarding liability of responsible officers provides, in relevant part:

(1) Any officer or employee with the duty to collect, 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 officer 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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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 competent 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 paying 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 nevertheless 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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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 operations 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 docketed, 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 estoppel. 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 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 
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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 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.

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, detriment, 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 litigant 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 position 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 general 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 taxing 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 serious 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 without 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 correctly 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 challenged 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 willful. His petition attached only the Department’s order regarding 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 responsibility, 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 assessment of the liability against the Company.

(e) That an unreasonable delay of more than 14 years 

in the Department’s issuing the officer liability assessment against Crow prejudiced Crow’s ability to defend 

against the officer liability assessment and was fundamentally 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 district 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 deficiency]. 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 petition 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 “petition” referred to in § 77-1783.01(2) is a petition for redetermination 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 district court should have analyzed only the issue of Crow’s personal 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.