James M. Robinette - Page 42

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          the facts of this case, the late filing, by itself, is not                  
          sufficient basis for a material breach of the contract.                     
               Adequacy of compensation for loss.  The IRS was adequately             
          compensated for its “loss”.  Respondent suffered minimal, if any,           
          damages, as he held petitioner’s refund as security.                        
               Forfeiture by party who fails.  Under this factor, the                 
          comments in the Restatement explain:  “[A] failure is less likely           
          to be regarded as material if it occurs late, after substantial             
          preparation or performance, and more likely to be regarded as               
          material if it occurs early, before reliance.”  1 Restatement,              
          supra, sec. 241, comment d.  In this case, petitioner had                   
          substantially performed under the terms of the offer-in-                    
          compromise at the time the offer was declared in default.                   
          Petitioner’s untimely mailing of the return occurred in the                 
          fourth year of a 5-year agreement.  Petitioner had already paid             
          the full amount of the offer-in-compromise, with borrowed funds,            
          within 60 days after the offer had been accepted.  Petitioner had           
          complied with the filing requirements for the first 3 years of              
          the agreement.  Further, at the time the Appeals officer                    
          determined to proceed with collection, petitioner had filed his             
          1998 return and complied with all other terms of the offer-in-              
          compromise.                                                                 









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