reporting purposes within three years, three months and 15 days from the end of the taxable year in order to receive credit on his earnings record. Plaintiff is in effect asking that the Secretary be "estopped" from relying on the statute of limitations in barring Plaintiff's claim for Retirement Age Benefits. Plaintiff, however, has alleged no facts or circumstances that even constitute an estoppel, . . . "as estoppel arises where one party by words or action makes a false representation of fact and the other party reasonably relies on that representation and is prejudiced thereby." Brown v. Richardson, 395 F. Supp. 185, 191 (W.D. Pa. 1975). Although an omission or mere silence can constitute the required "misrepresentation," it is far from certain that plaintiff relied to his detriment on a misrepresentation by the Social Security Office regarding any deadline for filing the tax returns for Social Security purposes. The Defendant does not assert that an employee of the Social Security Office actually informed the plaintiff personally of the requirement when he visited the office in 1968. However the summary of earnings form that Plaintiff received in the mail from the Bureau of Data Processing and Accounts, Department of Health, Education and Welfare, Social Security Administration, Baltimore, Maryland stated in part: If this statement does not agree with your own record, please T. at 91. Although the statement was certainly not as clear as it could have been and the enclosed booklet Plaintiff received along with the earnings statement made no mention of the time limitation, Plaintiff should have at least become suspicious that the Social Security records showing no earnings for 1967 and 1968 could not be amended after a certain date, and inquired further: 'One who claims the benefits of an estoppel an the ground that Brown v. Richardson, supra at 191. But even if estoppel arises from the facts in this case, it cannot be used by the plaintiff against the government in this action. Estoppel will not lie against the government because of a misrepresentation or omission on the part of a government employee. Felice v. Celebrezze, 319 F.2d 443 (9th Cir. 1963); Mahr v. Mathews, 402 F. Supp. 1165 (D. Del. 1975); Brown v. Richardson, supra; Eastland v. Tennessee Valley Authority, 398 F. Supp. 185 (N.D. Ala. 1974); Terrell v. Finch, 302 F. Supp. 1063 (S.D. Tex. 1969); Feil v. Gardner, 281 F. Supp. 983 (E.D. Wis. 1968), aff'd, 402 F.2d 481 (7th Cir. 1968); Flamm v. Ribicoff, 203 F. Supp. 507 (S.D. N.Y. 1961); Taylor v. Flemming, 186 F. Supp. 280 (W.D. Ark. 1960). See generally United States Immigration & Naturalization Service v. Hibi, 414 U.S. 5 (1973); Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380 (1947). In Terrell v. Finch, supra, one of the Social Security Administration's employees mistakenly told the plaintiff that her remarriage would not affect her benefits. Although she relied on that statement to her detriment when she remarried, the court held that the Administration was not estopped to deny her benefits in part because "[P]laintiff must comply with the statutory requirements in order to have an enforceable right." Id. at 1064. In so holding, the court emphasized that "the unauthorized act of a government employee cannot vary the requirements established by an Act of Congress." Ibid. For similar results, see Brown v. Richardson, supra; Flamm v. Ribicoff, supra;2 Taylor v. Flemming, supra. In United States Immigration & Naturalization Service v. Hibi, supra, the Court held in part that the government was not estopped from relying on a time deadline for filing naturalization applications because of its failure to fully publicize the rights to naturalization afforded by the Nationality Act of 1940 to non-citizens who served in the United States Armed Forces during World War II. The rationale of the Hibi opinion certainly supports the view that even if the Social Security Administration was wrong in failing to give notice, such failure cannot create an estoppel against the Government to claim the benefit of the limitation period of three years, three months and fifteen days expressly fixed by Congress in Section 205 of the Act, 42 U.S.C.A. § 405(c) (1) (B). See Mahr v. Mathews, supra, where the court held that poor performance on the part of the Social Security Administration in notifying the plaintiff of certain facts concerning his eligibility for the receipt of benefits did not give rise to an implied contract to certain benefits, nor to estoppel against the federal government. Although the outcome in the immediate case may be harsh, this Court has no authority to waive the "conditions defined by Congress for charging the public treasury." Federal Crop Insurance Corp. v. Merrill, supra at 385. Since Plaintiff has failed to establish that he is entitled to Retirement Age Benefits, Plaintiff's action to overturn the decision of the Secretary 'In Flamm v. Ribicoff, supra, the court stated that: ***parties dealing with the Government are charged with knowledge of and are bound by statutes and lawfully promulgated regulations despite reliance to their pecuniary detriment upon incorrect information received from Government agents or employees. Failure to comply with the applicable statute and regulations precluded recovery against the Government 'no matter with what good reason' the claimant believed she had come within the requirements. Estoppel will not lie regardless of the financial hardship 'resulting from innocent ignorance.' Federal Crop Insurance Corp. v. Merrill, supra; **; James v. United States, 185 F.2d 115, 22 A.L.R. 2d 830 (4th Cir. 1950). of Health, Education and Welfare must therefore fail. Accordingly, it is adjudged and ORDERED that the decision of the Secretary in this case be and hereby is AFFIRMED. SECTION 211(c) (42 U.S.C. 411(c))- SELF-EMPLOYMENT-TRADE OR BUSINESS-SERVICES OF NON-PROFESSIONAL FIDUCIARY IN ADMINISTERING RELATIVE'S ESTATE 20 CFR 404.1070 SSR 76-31c Silverman v. Secretary, HEW, USDC, C.D. CA., Civ. No. 75-1142-IH(G) (2/10/76) In judicial decision upholding the Secretary's determination denying claimant credit for self-employment income on the basis of fees allowed by Probate Court for his services as trustee of a deceased relative's estate, held, that while there are rare cases in which the activities of a nonprofessional fiduciary for a single estate may be considered to be self-employment, there was substantial evidence supporting the conclusion that the claimant's activities were not sufficiently extensive to constitute the conduct of a trade or business within the meaning of section 211(a) of the Social Security Act. HILL, District Judge: This Report and Recommendation is submitted to the Honorable Irving Hill, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636(b) (3) and General Order No. 104-D of the United States District Court for the Central District of California. On April 1, 1975, plaintiff filed a complaint to review the decision of the Secretary of Health, Education, and Welfare concerning retirement benefits. On August 8, 1975, defendent filed an answer to the complaint, with a certified copy of the transcript of the administrative record. Thereafter a motion for summary judgment, with memorandum of points and authorities in support thereof, was filed by defendant, and proposed findings of fact, conclusions of law and judgment were lodged. Plaintiff filed opposition thereto. On October 7, 1975, the Magistrate heard the motion for summary judgment. It was stipulated that the plaintiff's opposition documents be deemed to include a motion by plaintiff for summary judgment, and that the government's Motion for Summary Judgment be deemed to constitute opposition thereto. After hearing oral argument by counsel, the Magistrate ordered the motions for summary judgment to stand submitted for decision. DISCUSSION The Magistrate, having subsequently reviewed the entire transcript, pleadings and memoranda, and having reflected upon the state of the entire record now makes this report. This action was brought pursuant to § 205(g) of the Social Security Act, as amended, 42 U.S.C.A. § 405(g), to obtain judicial review of a final decision of the Secretary of Health, Education, and Welfare finding that the plaintiff was not entitled to retirement insurance benefits because he was not "fully insured" within the meaning of the Act. The plaintiff filed an application for retirement insurance benefits on June 12, 1973, alleging that he had been self-employed as a fiduciary from 1969 through 1972. This application was denied initially and on reconsideration on the grounds that the plaintiff did not have sufficient quarters of coverage to be entitled to retirement insurance benefits. The plaintiff then requested a hearing which was held on October 8, 1974, at Los Angeles, California, where the plaintiff appeared and testified. The administrative law judge considered this testimony and all other evidence of record de novo, and on October 17, 1974, issued his decision finding that the plaintiff was not entitled to retirement insurance benefits. The administrative law judge's decision became the final decision of the Secretary of Health, Education, and Welfare when it was approved by the Appeals Council on February 11, 1975, and that decision is now subject to review by this Court. The plaintiff, who was born on August 16, 1898, filed an application for retirement insurance benefits, and a statement of claimant in support thereof, on June 12, 1973. Plaintiff had previously worked for several years as a civil engineer and for many years had worked part-time as a real estate broker, neither of which jobs were covered by social security. It is undisputed that plaintiff obtained one quarter of insured coverage in 1956. Having attained age 65 in 1963, plaintiff needed 12 quarters (one for each year after 1950 and prior to 1963) of coverage to establish "fully insured status". Plaintiff sought to have four quarters of coverage for each year from 1969 through at least 1972 credited to his social security account, contending that he was self-employed as a nonprofessional fiduciary during that time. Plaintiff's uncle died February 27, 1967. Plaintiff served as executor of the estate until 1969, when he assumed responsibilities as trustee of a testimentary trust established by his uncle's will, with the uncle's widow as life beneficiary. Plaintiff was still serving as trustee at the time of his hearing in October, 1974. The estate consisted of a commercial building in Los Angeles which generated rental income by reason of four stores which rented space therein and cash of approximately $10,000. The rental property had an appraised value of $36,000 in 1974, although plaintiff thought it was worth $65,000, so the value of the trust assets, after disbursements, was somewhere between $47,000 and $75,000. Plaintiff received from $500 to $750 per year in fees for his services as trustee, and would receive a one-quarter interest in the estate upon the death of the life beneficiary. Plaintiff's duties as trustee included keeping the commercial building rented, collecting rent, and getting repairs made. He had no business expenses or office, "as my services are relatively simple as fiduciary". He took care of the estate's bookkeeping and correspondence, which his wife typed. Regarding the amount of time spent as trustee, plaintiff testified that "there isn't a day that I don't have something to do with it" and estimated he had spent 16 hours performing his duties in the month prior to the hearing, September, 1974. In a letter dated March 13, 1974, plaintiff explained the nature of his trustee responsibilities to support his contention that the trusteeship had been of long duration (since July 15, 1969), involving a complex estate (originally involving two commercial buildings) of very large size (property worth about $60,000, generating $595 monthly rental income). By letter dated October 9, 1974, plaintiff described the amounts of time he spent tending the estate from December, 1973 through February, 1974 as a result of fire damage to the building, and in 1971 due to earthquake damage, including notes of calls and tasks he performed. He also submitted annual reports for each year of his service as trustee of the estate, detailing receipts and disbursements thereof. The law requires that an applicant for retirement insurance benefits must be "fully insured". 42 U.S.C.A. § 402(a). Pursuant to 42 U.S.C.A. § 414(a), plaintiff herein must have 12 quarters of insured coverage to be fully insured. Plaintiff alleges entitlement to 16 quarters of coverage for the years 1969 through 1972, during which time he received more than $100 in each calendar quarter. See 42 U.S.C.A. § 413(a). The determinative question here is whether plaintiff's services as a non-professional fiduciary constitute a "trade or business" within the meaning of 42 U.S.C.A. § 411(c) so as to qualify plaintiff as a self-employed individual for social security purposes. The Secretary has determined that plaintiff was not engaged in a trade or business and therefore was not entitled to retirement insurance benefits. This decision is supported by substantial evidence in the record and therefore should be affirmed. Social Security Ruling No. 27 for 1960, SSR 60-27, C.B. 1960-61, pp. 60-61, concerns whether a non-professional fiduciary, such as an administrator or executor of an estate, is engaged in a trade or business within the meaning of 42 U.S.C.A. § 411(c). This Ruling recognizes that the term "trade or business" shall have the same meaning as in section 162 of the Internal Revenue Code, and states that all the facts and circumstances in a particular case must be considered. SSR 60-27 sets forth the following general guidelines: (1) a professional fiduciary who regularly engages in fiduciary services and handles a number of estates is engaged in a trade or business; (2) a nonprofessional fiduciary (for example, one who serves as executor in isolated instances, and then as personal representative of a deceased friend or relative) generally is not engaged in a trade or busi ness; (3) a nonprofessional fiduciary who actually carries on a trade or business in connection with administering an estate, such as operating a store which is part of the estate, may have net earnings from self-employment, if: |