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majority overcomes that obstacle by broadly framing the issue as
“compliance with the terms of the offer-in-compromise”, id.,
which, by implication, encompasses both actual (strict)
compliance (petitioner’s position) and deemed (substantial)
compliance (the majority’s position).
The majority’s expansive characterization of the contract
issue in this case is simply another way of saying that there is
more than one possible argument in support of petitioner’s claim
that the OIC remained in force. Petitioner argued to the Appeals
officer that the OIC remained in force because he had timely
filed his 1998 return. He did not present to the Appeals officer
the argument underlying the majority’s conclusion; viz., that the
OIC remained in force because petitioner’s untimely filing of his
1998 return was not a material breach. As we stated in Magana v.
Commissioner, supra at 493: “[G]enerally it would be anomalous
and improper for us to conclude that respondent’s Appeals Office
abused its discretion under section 6330(c)(3) in failing to
grant relief, or in failing to consider arguments, issues, or
other matter not raised by taxpayers or not otherwise brought to
the attention of respondent’s Appeals Office.” It is indeed
anomalous and improper for the majority to conclude that
respondent’s Appeals Office abused its discretion in this case
for failing to consider an argument not brought to its attention.
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