- 42 - 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.Page: Previous 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 Next
Last modified: May 25, 2011