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breach” analysis as applied in the majority opinion of this
Court’s decision in Robinette v. Commissioner, supra at 109-112.
Applying that analysis, petitioner argues that late payment of
his 2002 taxes was not material, and that respondent therefore
abused his discretion by finding that petitioner defaulted on his
OIC. Petitioner also urges that the Court consider his
Installment Agreement Request and his testimony at trial, neither
of which is part of the administrative record that respondent
considered at the section 6330 hearing. Petitioner argues that,
under this Court’s decision in Robinette, the evidence is within
the scope of this Court’s review of a determination under section
6320 and/or 6330 for an abuse of discretion. On the basis of his
testimony, respondent’s internal procedures, and the Installment
Agreement Request, petitioner urges that we should treat his
Installment Agreement Request as having been granted. Had the
Installment Agreement Request been granted, petitioner argues,
late payment of his 2002 taxes would not have been a material
breach of the OIC.
As to the contractual issue, respondent argues that we
should apply the “doctrine of express conditions” analysis
applied by the U.S. Court of Appeals for the Eighth Circuit in
reversing this Court’s decision. Robinette v. Commissioner, 439
F.3d at 462-463. Respondent also argues that, even under a
“material breach” analysis, respondent did not abuse his
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