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after he was first requested to do so. That hardly qualifies as
a “foot fault”.
C. Doctrine of Express Conditions
Regardless of the nature of the breach and respondent’s
response thereto, we think that the most relevant doctrines of
contract law are not “substantial performance” and “material
breach.”8 Petitioner’s obligation to timely file all his returns
for 5 years was an express condition and so, as a general rule,
is subject to strict performance. See Calamari & Perillo, The
Law of Contracts, sec. 11.9, at 403 (4th ed. 1998); 13 Williston
on Contracts, sec. 38:6, at 384-385 (4th ed. 2000). The relevant
question should be whether there is an “excuse of conditions”
that may apply. Under that doctrine, petitioner would have to
show that (1) strict compliance with the timely filing condition
would result in an extreme forfeiture or penalty, and (2) timely
filing was not an essential part of the bargain. See 2
Restatement, Contracts 2d, sec. 229 (1981); 1 Restatement,
Contracts, sec. 302 (1932). If we are going to say that, as a
matter of law, the Appeals officer should not have enforced the
8 While the majority assumes that Arkansas law governs the
contract issue, it is quite possible that, under principles set
forth in Clearfield Trust Co. v. United States, 318 U.S. 363,
366-367 (1943), and United States v. Kimbell Foods, Inc., 440
U.S. 715, 727-729 (1979), the Federal common law of contracts is
the appropriate choice of law. See Saltzman, IRS Practice and
Procedure, par. 15.03[4][b], at 15-82 n.200 (rev. 2d ed. 2002).
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