Will K. Ng - Page 15

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          Installment Agreement by not making the monthly payments he had             
          offered.  Such noncompliance hardly inspires the Court to find              
          that petitioner’s late payment of his 2002 taxes did not form               
          adequate grounds upon which to find him in default of his OIC.              
               Indeed, consideration of petitioner’s testimony would only             
          bolster the conclusions that his breach was material and that               
          there was no “excuse of conditions” because reinstatement of his            
          original tax liability would not work a disproportionate                    
          forfeiture upon him.  At trial, petitioner admitted that the                
          terms of the OIC were explained to him by his tax advisers when             
          he entered into the compromise.  Petitioner also admitted that he           
          realized a capital gain of $416,895 upon the sale of his home in            
          December 2002.  Even after purchasing a new home and remodeling             
          it, petitioner admitted he had slightly over $100,000 in cash               
          with which to satisfy his 2002 tax liability.  Under such                   
          circumstances, petitioner’s late payment of his 2002 taxes seems            
          to be exactly the sort of “evasion of the spirit of the bargain,            
          lack of diligence and slacking off, [and/or] willful rendering of           
          imperfect performance” that typifies a failure of good faith                
          performance and therefore indicates a material breach.  See 2               
          Restatement, supra sec. 205 cmt. d.  Accordingly, we need not               
          decide herein whether we may consider evidence beyond the                   
          administrative record.                                                      







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