dissenting.
Because I believe the conclusions of the district court should be affirmed, I respectfully dissent.
A. Standing
The first issue on appeal is whether Jewell had standing to bring his claim for a tax refund. As the majority correctly points out, the prudential limits of standing generally require plaintiffs to demonstrate they are asserting their own rights, and not the rights of a third party. See Powers v. Ohio, 499 U.S. 400, 410, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). This is equally true with respect to suits by corporate officers and shareholders. See Franchise Tax Bd. v. Alcan Aluminium Ltd., 493 U.S. 331, 336, 110 S.Ct. 661, 107 L.Ed.2d 696 (1990). Equitable restrictions prohibit shareholders from bringing suit solely to enforce the rights of a corporation or to recover for injuries sustained by the corporation. Id. What the majority fails to embrace is Jewell’s claim falls squarely within a recognized exception to this equitable restriction. This exception *1174permits “a shareholder with a direct, personal interest in a cause of action to bring suit even if the corporation’s rights are also implicated.” Id. Arkansas courts have repeatedly held a shareholder may bring a direct suit against a third party where the shareholder asserts a direct injury which is separate and distinct from the harm caused to the corporation. See, e.g., Hames v. Cravens, 332 Ark. 437, 966 S.W.2d 244, 247 (1998).
An analysis of the unique facts in this case shows Jewell had standing. On December 28, 2005, the Circuit Court of Pulaski County, Arkansas, determined JMFH had effectively dissolved as of July 25, 2002, “the last date upon which business of [JMFH] could have regularly been conducted.” Upon the July 2002 dissolution, the shareholders individually took possession of the corporation’s assets. As the district court found, JMFH had undergone a de facto dissolution and distribution long before Moser and Fletcher signed the IRS’s closing agreement in January 2004. As a result, Jewell was forced to pay one-third of the JMFH penalty with his own funds, for which Jewell was not reimbursed, nor could he be reimbursed, by the defunct corporation. The IRS admitted knowing “JMFH was no longer in business,” and one-third of the sanction would be paid by Fletcher’s law firm and two-thirds of the sanction would be paid by JMFH with Jewell contributing, under protest, $8,933.33.
It is true Murray v. United States, 686 F.2d 1320, 1325 n. 8 (8th Cir.1982), says only “the taxpayer from whom the tax was allegedly wrongfully collected” has standing to sue for a refund. Contrary to the majority’s conclusion, the $8,933.33 was, in fact, “collected” from Jewell, not from JMFH. Moreover, the $8,933.33 was not a tax. Jewell’s payment was a sanction or penalty relating directly to Jewell’s conduct in filing the amended plans.
The IRS also threatened not to join the settlement agreement if Jewell did not cooperate by (1) keeping his clients in the settlement, and (2) personally contributing to the penalty payment. The IRS informed Moser “the Closing Agreement was an all or nothing deal” and if Jewell did not “go along,” then Jewell “had the potential of being sued by [Moser’s and Fletcher’s clients].” In the IRS answer to Jewell’s complaint, the IRS admitted the settlement “agreement was structured as a ‘blanket’ agreement ... that necessarily extended to all individual plans adopted by [JMFH’s] clients and was not limited only to plan clients of one stockholder.” The IRS further acknowledged Jewell informed the IRS of Jewell’s “opposition to the [settlement] agreement” and the “payment of any sanction.”
The IRS is authorized under 26 U.S.C. § 7121(a) “to enter into an agreement ... with any person relating to the liability of such person” respecting a tax liability. Jewell was such a person. Based upon the facts of this case, Jewell did sustain a direct injury separate and distinct from any injury sustained by the extinct JMFH, and Jewell had standing to file suit for a tax refund.
B. Malfeasance
Upon finding standing, the court should consider the second issue on appeal: whether the district court erred in holding the closing agreement was procured by the IRS through fraud, misrepresentation, or malfeasance. We review de novo a district court’s grant of summary judgment. See Hawkeye Nat’l Life Ins. Co. v. AVIS Indus. Corp., 122 F.3d 490, 496 (8th Cir. 1997). “Summary judgment is proper only if the record, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id.; see also Fed.R.Civ.P. *117556(c). Under 26 U.S.C. § 7121(b), a closing agreement may only be set aside if either party can demonstrate the existence of fraud, malfeasance, or misrepresentation of a material fact.
Between 1994 and 2000, Congress passed several pieces of legislation, collectively referred to as GUST, which impacted the retirement plans sponsored by JMFH. See Rev. Proc.2000-20 § 1.01, 2000-6 I.R.B. 553. This legislation required several specific provisions to be included in JMFH’s retirement plans for those plans to gain or retain qualified status for favorable tax treatment. See 26 U.S.C. 401(b); Rev. Proc.2000-27 § 2.03, 2000-26 I.R.B. 1272; Rev. Proc.2001-55 § 2.01, 2001-49 I.R.B. 552. The deadline for these plan changes was the later of February 28, 2002, or the last day of the first plan year beginning on or after January 1, 2001. See Rev. Proc.2001-55 § 3.01, 2001^9 I.R.B. 552. If a sponsor submitted an amended prototype plan for IRS approval by December 31, 2000, the deadline was extended for those individual plans relying on the prototype plan until September 30, 2003, or the last day of the twelfth month after the IRS approved the amended prototype plan, whichever was later. See Rev. Proc.2000-20 § 19.01, 2000-6 I.R.B. 553; Rev. Proc.2003-72 § 2.03, 2003-38 I.R.B. 578.
After this legislation was enacted, JMFH was required to amend the four prototype retirement plans which it sponsored for JMFH clients. In an effort to comply, Jewell drafted amendments and submitted the firm’s four prototype plans to the IRS for approval on February 5, 2002, before the original deadline of February 28, 2002. See Rev. Proc.2001-55 § 3.01, 2001-49 I.R.B. 552. Because JMFH’s prototype plans were not submitted by December 31, 2000, the individual retirement plans did not qualify for the September 30, 2003 extension, and each had to be submitted by the later of February 28, 2002, or the last day of the first plan year beginning on or after January 1, 2001. See Rev. Proc.2000-20 § 19.07, 2000-6 I.R.B. 553.
JMFH could not make the required amendments to the individual plans until the IRS issued confirmation letters informing JMFH whether its prototype plans were acceptable. JMFH was forced to wait five months and twenty days before the IRS responded to JMFH’s timely request for confirmation letters. When the IRS finally responded on July 25, 2002, the IRS asked JMFH to make minor changes to the prototype plans, changes consisting often of typographical errors. Jewell made the requested alterations and forwarded the changes to the IRS the following day, July 26, 2002. Over two months later, on Friday, October 4, 2002, the IRS asked JMFH to make further inconsequential changes to its prototype plans. Jewell provided these changes to the IRS on the next working day, Monday, October 7, 2002. After eight months, the IRS issued opinion letters on October 9, 2002, approving JMFH’s amended prototype plans.
Because the IRS took over eight months to review JMFH’s timely prototype plans, Jewell faced a difficult situation. Jewell could either (1) begin submitting JMFH’s individual retirement plans before he received confirmation letters, without the changes eventually requested by the IRS, or (2) wait until the IRS issued confirmation letters, and then submit the individual plans after the deadline, which could result in those individual plans losing qualified status and favorable tax treatment. Believing he had an obligation to his clients, Jewell chose to begin submitting the individual retirement plans. As a consequence, some of the individual plans were submitted without one or more of the corrections the IRS later requested. Despite *1176Jewell’s attempts to ensure timely submission of the individual plans, the IRS claimed over sixty of the individual plans had not fully incorporated the required amendments by the applicable deadline.
The IRS sent Jewell a letter on May 23, 2003, informing Jewell of seven “deficiencies.” Each of the challenged plans had at least one of these deficiencies, making the plans “late-amenders” under GUST. Examples of the deficiencies include typographical errors, such as referencing an effective date of “August 5, 1997,” instead of “August 6, 1997,” and using the word “month” to specify a period of time instead of the phrase “calendar year month.” Some deficiencies Jewell had adopted from the IRS’ List of Required Modifications and still others were not deficiencies at all, but were mistakes made by the IRS.
The May 23, 2003 letter advised Jewell to proceed under the Correction on Audit Program whereby JMFH would enter into a closing agreement which would grant relief from disqualification to each of JMFH’s clients who adopted individual plans based upon one of the firm’s prototypes. If JMFH entered into such an agreement and paid a cash sanction, the IRS would treat the prototype as if it had been submitted by December 31, 2000, thereby allowing the individual plans an extension under Rev. Proc.2002-73. The IRS further notified Jewell, if an agreement could not be negotiated, the IRS would individually process the pending client plans as requests by late-amenders under GUST, subjecting many JMFH clients to disqualification and unfavorable tax treatment.
Jewell responded to the May 23, 2003 letter by indicating his willingness to negotiate an agreement. The IRS then proposed a $71,000 sanction, which did not “bear a reasonable relationship to the nature, extent, and severity” of the deficiencies, nor did it take “into account the extent to which correction occurred before audit,” as required by IRS Revenue Procedures pertaining to the Correction on Audit Program. See Rev. Proc.2003-44 § 1.03, 2003-25 I.R.B. 1051. Negotiations continued between Jewell and the IRS until Jewell was excluded from the negotiations by his former partners. The IRS reached a closing agreement with Jewell’s former partners, describing the agreement as between the IRS and JMFH, the dissolved corporation. The IRS agreed to grant an extension to JMFH’s individual client plans in exchange for $26,800. Jewell did not sign the closing agreement, and when Jewell resisted payment under the agreement, IRS agents threatened that if Jewell removed his clients from consideration under the agreement, or if Jewell failed to pay one-third of the penalty, the IRS would conduct individual investigations on each of Jewell’s client plans and also decline to enter into the agreement with JMFH, exposing Jewell to lawsuits from JMFH’s clients. Jewell then, under protest, paid $8,933.33 of his own funds to cover one-third of the sanction.
The United States Tax Court recognizes, “in determining whether closing agreements will be set aside the usual rules as to fraud and misrepresentation apply.” Bennett v. Commissioner, 56 T.C.M. (CCH) 796 (1988). “In order to establish fraud for purposes of setting aside a closing agreement,” a claimant must prove the “allegedly fraudulent misrepresentation: (1) [concerned material facts; (2) was knowingly false; (3) was made with the intention that it be relied on in good faith by the other party without knowledge of its falsity; and (4) proximately caused injury or damages to the innocent party.” Id. (citing Boatmen’s National Co. v. M.W. Elkins & Co., 63 F.2d 214, 216 (8th Cir.1933)). “In order to establish a misrepresentation of a material fact sufficient to set aside a closing agreement pursuant to section 7121(b),” the *1177claimant must prove “the representation made by one party contained incorrect or incomplete information or computations regarding the express terms reflected in the proposed closing agreement and that such information was in good faith and detrimentally relied upon by the other party in entering into the closing agreement.” Id. Malfeasance is a “wrongful or unlawful act; especially] wrongdoing or misconduct by a public official.” Black’s Law Dictionary 976 (8th ed.2004). In view of the IRS’s conduct, the district court set aside the closing agreement because the agreement was induced by the IRS’s fraud, misrepresentation of material fact, or malfeasance.
The IRS’s malfeasance began when it started pressuring Jewell concerning these relatively trivial deficiencies in JMFH’s plans. The district court found a great majority of JMFH’s individual plans were timely, the few plans which were late were late by only a few days, and all of the plans were substantially correct. The record supports the district court’s findings and its conclusion a “good faith, quality submission mitigates the need for an IRS imposed penalty.” Jewell v. United States, No. 4:06-CV-684, slip op. at 9, 2007 WL 4150206, at *4 (E.D.Ark. Nov.19, 2007). The IRS conceded the individual employer plans Jewell submitted were a bona fide effort to comply with GUST. The extended delays in response time were created by the IRS, not by Jewell or JMFH. As the district court aptly explained, “The IRS cannot be allowed to accept timely adoptions, ask for minor changes to those adoptions, and then declare the plan late and demand a penalty when the employer makes the IRS-requested changes.” Id. at *6.1 agree.
When the IRS induced Jewell to pay one-third of the sanction, the district court accurately described this conduct as “ex-tortionary, deplorable, and wrong.” Id. at *3. In the May 23, 2003 letter, the IRS informed Jewell it would be in his benefit to negotiate an umbrella agreement, and if he failed to do so, the IRS would individually process the pending client plans as requests by late-amenders under GUST, subjecting many JMFH clients to disqualification and unfavorable tax treatment. This compulsion was strengthened by a second letter dated August 22, 2003, in which the IRS notified Jewell the only way he could avoid “the harsh tax consequences of plan disqualification that would potentially be incurred by hundreds of employers, most of whom are very small entities” would be to pay a sanction under a closing agreement. Jewell’s choice was either to enter into an unfair closing agreement and pay a sanction or subject his clients to severe tax consequences. When Jewell was excluded from the negotiation process, Jewell suggested his clients should be removed from the agreement. The IRS threatened, if Jewell removed his clients from consideration under the agreement, or if Jewell failed to pay one-third of the penalty, the IRS would decline to enter into the agreement with JMFH, exposing Jewell personally to lawsuits from Moser’s and Fletcher’s clients.
The IRS’s conduct exceeded its legal authority and was wrongful. Employees of the IRS are public officials and should be held to a higher standard than their conduct displayed in this case. Acting the part of a playground bully does not become the IRS or any public servant. This malfeasance justifies setting aside the closing agreement and returning Jewell’s money-
For the foregoing reasons, I would affirm the district court’s grant of summary judgment in favor of Jewell.