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Robinette v. Commissioner, 439 F.3d at 463 (citing 2 Restatement,
supra sec. 229).
Under this analysis, the performance conditioned upon strict
compliance with the terms of the OIC is the Commissioner’s
discharge of the full amount of the tax liability compromised.
3. Application
Considering all the relevant facts and circumstances,
petitioner’s significantly late payment of a substantial tax
liability amounts to both a failure of an express condition of
the OIC and a material breach of the OIC. Therefore, we need not
decide which doctrine applies.
By the plain terms of the OIC, respondent was not obligated
to discharge petitioner’s unpaid 1993, 1994, and 1995 tax
liabilities until petitioner “[complied] with all provisions of
the Internal Revenue Code relating to filing [his] returns and
paying [his] required taxes for 5 years or until the offered
amount is paid in full, whichever is longer.” The Internal
Revenue Code required that petitioner pay his outstanding 2002
income tax liability of $77,540 by April 15, 2003. See secs.
6151(a), 6072(a). He failed to do so. Petitioner failed to pay
the bulk of his 2002 tax liability for well over a year after it
was due, eventually satisfying his tax debt with his final
payment of $56,731.05 on July 14, 2004. Moreover, despite
petitioner’s failure to pay his 2002 taxes, respondent’s letters
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