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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
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