James M. Robinette - Page 43

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               Uncertainty.  Under this factor, the comments in the                   
          Restatement note:                                                           
               To the extent that expectation is already reasonably                   
               secure, in spite of the failure, there is less reason                  
               to conclude that the failure is material.  The                         
               likelihood that the failure will be cured is therefore                 
               a significant circumstance in determining whether it is                
               material * * *.  The fact that the injured party                       
               already has some security for the other party’s                        
               performance argues against a determination that the                    
               failure is material.  [1 Restatement, supra, sec. 241,                 
               comment e.]                                                            
          As stated supra, respondent was reasonably secured.  Respondent             
          had possession of petitioner’s 1998 refund, making it likely that           
          petitioner would perform under the agreement by filing his 1998             
          return.  Respondent also had received $100,000 within 60 days of            
          his acceptance of the offer, which was the amount offered and               
          accepted as payment of petitioner’s outstanding tax liabilities             
          from 1983 to 1991.  Additionally, before the Appeals officer                
          determined to proceed with collection, petitioner had cured the             
          defect.  Petitioner submitted his 1998 return to the Appeals                
          officer, at the request of the Appeals officer, to be filed as an           
          original return.                                                            
               Absence of good faith or fair dealing.  Petitioner acted in            
          good faith.  Petitioner signed his 1998 return on the due date              
          and gave it back to Mr. Coy for mailing.  This was the pattern              
          and practice petitioner had used in filing the returns prepared             
          by Mr. Coy.  He paid the full amount of the offer-in-compromise             
          within 60 days after acceptance of the offer, with borrowed                 





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