Will K. Ng - Page 10

                                       - 10 -                                         
          discretion by declaring petitioner in default on his OIC because            
          petitioner’s late payment of his 2002 taxes was a material                  
          breach.  Finally, relying on the Court of Appeals’ opinion in               
          Robinette, respondent argues that we may not consider evidence              
          beyond the administrative record when reviewing a determination             
          under section 6320 and/or 6330 for an abuse of discretion.                  
          IV.  Analysis                                                               
               A.  Applicable Contract Law                                            
               1.  Material Breach Analysis                                           
               Under the “material breach” analysis applied by the Tax                
          Court in Robinette, “‘If the plaintiff’s breach is material and             
          sufficiently serious, the defendant’s obligation to perform may             
          be discharged. * * *  Not so, however, if the plaintiff’s breach            
          is comparatively minor.’”  Robinette v. Commissioner, 123 T.C. at           
          108 (quoting TXO Prod. Corp. v. Page Farms, Inc., 698 S.W.2d 791,           
          793 (Ark. 1985)).                                                           
               The Court went on to point out:                                        
                    “In determining whether a failure to render or to                 
               offer performance is material, the following                           
               circumstances are significant:                                         
                         (a) the extent to which the injured party                    
                    will be deprived of the benefit which he                          
                    reasonably expected;                                              
                         (b) the extent to which the injured party can                
                    be adequately compensated for the part of that                    
                    benefit of which he will be deprived;                             
                         (c) the extent to which the party failing to                 
                    perform or to offer to perform will suffer                        
                    forfeiture;                                                       
                         (d) the likelihood that the party failing to                 
                    perform or to offer to perform will cure his                      





Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  Next

Last modified: May 25, 2011