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Installment Agreement by not making the monthly payments he had
offered. Such noncompliance hardly inspires the Court to find
that petitioner’s late payment of his 2002 taxes did not form
adequate grounds upon which to find him in default of his OIC.
Indeed, consideration of petitioner’s testimony would only
bolster the conclusions that his breach was material and that
there was no “excuse of conditions” because reinstatement of his
original tax liability would not work a disproportionate
forfeiture upon him. At trial, petitioner admitted that the
terms of the OIC were explained to him by his tax advisers when
he entered into the compromise. Petitioner also admitted that he
realized a capital gain of $416,895 upon the sale of his home in
December 2002. Even after purchasing a new home and remodeling
it, petitioner admitted he had slightly over $100,000 in cash
with which to satisfy his 2002 tax liability. Under such
circumstances, petitioner’s late payment of his 2002 taxes seems
to be exactly the sort of “evasion of the spirit of the bargain,
lack of diligence and slacking off, [and/or] willful rendering of
imperfect performance” that typifies a failure of good faith
performance and therefore indicates a material breach. See 2
Restatement, supra sec. 205 cmt. d. Accordingly, we need not
decide herein whether we may consider evidence beyond the
administrative record.
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