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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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