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figures that were previously communicated by Garofalo to Gilson
by telephone and which reduced the settlement amount slightly.
The November 6 letter required a response by 1:00 p.m. Also by
telephone during the morning of November 6, 1995, Garofalo
extended the 1:00 p.m., deadline contained in the November 6
letter. At 3:30 p.m., on November 6, 1995, Gilson faxed a letter
to Garofalo (the November 6 response) accepting respondent’s
revised offer of November 6, 1995.
Dorchester and Frank Wheaton point to some uncertainty in
Garofalo’s testimony concerning whether he faxed the November 6
letter to Gilson or whether he had his secretary fax that letter.
Dorchester and Wheaton conclude that respondent has failed to
prove that the November 6 letter was transmitted to Gilson on
November 6, 1995. They view the November 3 letter as a proposal
and not a definite offer. They argue:
A prerequisite to the formation of an agreement is
the manifestation of mutual assent to material terms by
all the parties. Lamborn v. Commissioner, T.C. Memo.
1994-5[1]5. Consequently, there must be a “meeting of
the minds” on material terms in order to reach an
agreement. Olefins Trading, Inc. v. [Han Yang Chem.]
Corp., 9 F.3d 282 (3d Cir. 1993). This intended
agreement [the November 3 letter] purports to conclude
cases involving eleven calendar years, between 133 and
155 issues and numerous penalties. This document
outlined above simply does not show a settlement was
ever reached of a case of this complexity and
magnitude.
The attachments to the November 3 letter contain a great
amount of detail supporting respondent’s proposed settlement
figures for the docketed cases. On the morning of November 6,
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