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not timely mailed, the presumption of delivery discussed in
Estate of Wood has not been raised.
On the basis of the foregoing, we hold that petitioner has
not proven that he filed his return on October 15, 1999. Mr. Coy
sent Mr. Talbott a copy of petitioner’s 1998 return. On February
16, 2001, Mr. Talbott received the copy of petitioner’s 1998
return, which he forwarded to the Austin Service Center and which
was then processed by the IRS as an original return.
Petitioner’s transcript of account for 1998 states: “return
filed and tax assessed” on April 2, 2001. Thus, petitioner’s
return was late filed.
B. Whether Petitioner Materially Breached the
Offer-in-Compromise
Despite the late filing of petitioner’s return, under the
facts and circumstances of this case, respondent abused his
discretion in determining to proceed with collection. The
Appeals officer acted arbitrarily and without sound basis in law
and had a closed mind to the arguments presented on petitioner’s
behalf. He failed to consider the facts and circumstances of
this case. He determined to proceed with collection even though
the breach in the contract was not material and under contract
law the contract remained in effect.
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