Will K. Ng - Page 13

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          of November 14 and December 10, 2003, warned petitioner of the              
          potential for default and gave him an additional opportunity to             
          pay his taxes without defaulting on the OIC.  Petitioner again              
          failed to pay his 2002 tax liability.                                       
               Under the circumstances, petitioner’s failure to satisfy his           
          2002 tax liability amounted to a “material breach” of the OIC.              
          By withholding a sizable sum of money from respondent for a                 
          substantial period, petitioner deprived respondent of a material            
          financial benefit under the OIC.  Also, at the time respondent              
          declared petitioner in default on February 11, 2004, it appeared            
          unlikely that petitioner would cure his failure.  By that time,             
          petitioner had failed to comply with the terms not only of the              
          OIC but also of respondent’s letter of December 10, 2003 (again             
          requesting payment of petitioner’s 2002 taxes), thereby declining           
          an opportunity to “cure” his failure.                                       
               By failing to satisfy his 2002 tax liability for over a                
          year, petitioner committed a material breach of the terms of the            
          OIC.  Nor is there any applicable “excuse of a condition”.  As              
          explained supra, an express condition of a contract may be                  
          excused if a contracting party can show that (1) compliance with            
          the condition would result in a disproportionate forfeiture or              
          penalty, and (2) the condition was not a material part of the               
          bargain.  See 2 Restatement, supra sec. 229.  The record before             
          us does not indicate that strict compliance would have resulted             






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