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                    UNITED STATES TAX COURT



                  DAVID W. TROUT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



    Docket No. 5690-05L.               Filed December 16, 2008.




     In 1997, P entered into an offer-in-compromise (OIC)
covering tax years 1989, 1990, 1991, and 1993. The OIC included
a term requiring P to timely file and pay his taxes for five
years. P filed his 1996 tax return late, then failed to file
1998 and 1999 returns. P filed his 1998 taxes, showing a refund
due, in November 2003, but failed to sign his 1999 return, which
showed a liability of $164. In March 2004, R sent P a notice of
intent to levy and P requested a CDP hearing. P paid his
liability for 1999 but still failed to file a signed return. R
issued a notice of determination upholding the collection action
in March 2005. P claims failure to file the 1999 return was not
a material breach, relying on Robinette v. Commissioner, 

(2004). P claims that R abused his discretion (1) in finding
that P had not timely filed his 1998 and 1999 returns and (2) in
refusing to reinstate the OIC because the breach of the OIC’s
obligation to timely file was not material. Held, P did not gain
the benefit of the exceptions listed in sec. 7502, I.R.C., to the
general rule that a tax return is filed when received. Under
Rule 122, the Court could not make a finding on P’s credibility
and overwhelming evidence indicated that R did not receive either
                               - 2 -

return on time. Therefore, R’s finding that 1998 and 1999 tax
returns were not timely filed was not an abuse of discretion.
Held, further, applying general principles of the federal common
law of contracts, P’s OIC agreement made timely filing and
payment of tax express conditions. P was not powerless to avoid
the breach, and the failure to reinstate his OIC caused no
forfeiture, so R did not abuse his discretion in finding P had
breached the OIC and determining to proceed with collection.


     Robert E. McKenzie and Kathleen M. Lach, for petitioner.

     Thomas D. Yang, for respondent.



                              OPINION


     HOLMES, Judge:   David Trout offered the IRS $6,000 to settle

his 1989, 1990, 1991, and 1993 tax bills which totaled

$128,736.45.   The Commissioner accepted this offer in 1997.    As

part of the deal, Trout agreed to file his tax returns, and pay

any tax due, on time for the next five years.   The Commissioner

says that Trout broke that deal, and now wants to collect the

original bill.   Trout says that he did file his returns on time

but that, even if he didn’t, his failure was too immaterial to be

a breach of his contract with the IRS.   And even if it was a

breach, he argues that his default did not justify reinstating

his original tax bill.

     In Robinette v. Commissioner, 

(2004), we faced a

very similar question and in our lead opinion looked at least in

part to the state law of Arkansas to resolve it.   

The Eighth Circuit carefully noted that “it is not clear that the
                                 - 3 -

Tax Court applied or relied upon Arkansas law.    To the extent

that Arkansas law might differ from the contract principles that

derive from federal common law, * * * federal law governs this

case.”   Robinette v. Commissioner, 

, 462 n.6 (8th

Cir. 2006).     Today, we revisit the issue and state more plainly

that the federal common law of contracts applies.    Using that

law, we conclude that Trout breached his contract with the

Commissioner, and we hold that the Commissioner did not abuse his

discretion in refusing to reinstate the original deal.

                              Background

      Before offering to compromise his tax debt, Trout had not

always filed on time.    In the years before he signed the deal in

January 1997, he was late more often than not:

         Year                     Due                Received
         1989                   4/15/90               6/13/91
         1990                   4/15/91               4/15/91
         1991                   4/15/92               4/15/92
         1992                   4/26/93               8/15/93
         1993                  10/15/94               3/25/96
         1994                  10/15/95               4/9/96
         1995                   8/15/96              11/7/96

Settling with the IRS in the form he did--called an offer-in-

compromise (OIC)--gave Trout a chance for a fresh start with the

tax system.     But there was a catch--the OIC provided that he had

to satisfy “all of the terms and conditions of the offer” or the
                                - 4 -

Commissioner could reinstate his original tax liability.      One of

these terms was that Trout had to both file his returns on time,

and pay the tax due, for five years after signing the OIC.

     Trout, however, flopped back to his old ways within a year,

by not filing his 1996 tax return until April 1998.    The

Commissioner either wanted to give Trout another chance or didn’t

notice, because the OIC wasn’t defaulted.    Trout filed and paid

his 1997 taxes on time, but then fell back into trouble for 1998

and 1999.    His 1998 return was due (with extensions) in October

1999.    His 1999 tax return was due (again with an extension) in

August 2000.    The IRS says it never received either one, and the

Commissioner finally noticed and sent “potential OIC default

letters” to Trout and his lawyer in September 2001.1   These

letters gave him 30 days to file and pay any taxes that he owed

for 1999, and threatened him with termination of the OIC and the

reinstatement of any of his original tax liabilities remaining

unpaid if he didn’t.

     After hearing nothing for almost seven months, the

Commissioner sent Trout an “OIC default letter” on April 15,

2002.    He sent this letter to Trout’s address in Phoenix,

Arizona--the same address to which he sent the “potential OIC

default letter” and the address which both parties agree was



     1
       In fairness to Trout, we do note that he then had a run of
timely filed and paid returns for tax years 2000-02.
                                 - 5 -

Trout’s residence during the 2001 and 2002 tax years.     Another

year passed, and in May 2003 the Commissioner sent a “Notice of

Intent to Levy” (NIL) to Trout--and sent it not to Phoenix, but

to a concededly wrong address.

     Trout never responded to the NIL that the Commissioner

mailed to the wrong address, so the IRS went ahead and levied on

his salary in September 2003.    Trout complained, but the

Commissioner took the position that when Trout didn’t timely file

his 1998 return and pay the tax due, he was in default on the

OIC’s condition that he file and pay his taxes on time for five

years.

     Trout blames the accountant who prepared both his 1998 and

1999 returns, arguing that the accountant put the wrong Social

Security number on them by turning a     “5” into a “2” and so it

was the accountant who caused those returns to lose their way.

Trout claims that this was just an honest clerical mistake.       The

wrong number belonged to a man who died in 1978, however, and the

Commissioner has no record of taxes being timely filed for those

years under either the correct or the mistaken number.     When

Trout learned this, he said he would file the missing returns.

     The Commissioner’s heart then softened--he told Trout to

go ahead and mail his missing 1998 and 1999 returns and

resubmit the OIC.   This got Trout moving, and the Commissioner

finally received and filed the missing 1998 tax return in
                               - 6 -

November 2003 (nearly four years after its extended due date).

It showed the IRS owed him a small refund of about $1,350.

     Trout’s 1999 return remains a problem--the Commissioner

claims that he still has not received it in proper form even

after all these years, despite several requests and the active

involvement of Trout’s lawyers.    The Commissioner did receive

an unsigned copy of the 1999 return with a self-reported

liability of $164 in late 2003.    In December 2003, the

Commissioner asked Trout to sign this late-filed 1999 return

and send copies of both the 1998 and 1999 original returns (the

ones that Trout claimed the IRS must have misfiled because his

accountant got the social security number wrong) to prove that

he had filed them when due.    Trout never did so, and in March

2004 the Commissioner sent Trout another notice of his intent

to levy.2   Trout requested a “Collection Due Process” (CDP)

hearing.    In May 2004, the Commissioner released the first levy

and postponed levying under the second, having concluded that

Trout was indeed entitled to a pre-levy hearing.




     2
       The IRS hadn’t released the first levy at this point, but
apparently sent this second NIL because such notices are supposed
to be sent to a taxpayer’s last known address. Sec.
6330(a)(2)(C); Buffano v. Commissioner, T.C. Memo. 2007-32.
       Unless otherwise indicated, all section references are to
the Internal Revenue Code; all Rule references are to the Tax
Court Rules of Practice and Procedure.
                               - 7 -

     The 1999 return continued to bedevil both parties--on

May 14, 2004, the Commissioner told Trout that that return was

still unfiled.   In November 2004, the Commissioner received

another unsigned 1999 return which he promptly sent back for

signing.   In December 2004--although the Commissioner still

hadn’t gotten a signed 1999 return--he did get two checks.     One

was from Trout for $163, and the other one, written by Trout’s

lawyers, was for $1.   The Commissioner incorrectly posted these

checks to Trout’s 1989 and 1990 accounts.

     The missing 1999 return popped up again on January 12,

2005, when Trout’s lawyer faxed another unsigned 1999 return

with a hand-corrected social security number.   The Commissioner

again bounced this one back for lack of a signature.   Trout’s

lawyer responded on January 27, 2005, with a letter insisting

that Trout had filed his 1999 return (and citing Robinette).

In February 2005, Trout’s lawyer finally sent in a signed 1999

return, but again with an incorrect social security number.

     The CDP process ground on while the 1999 returns were

being batted back and forth.   In March 2005, the Appeals

officer issued a notice of determination upholding the levy,

and denying reinstatement of the OIC.   The Appeals officer

determined that Trout did not timely file his returns for 1998

and 1999 or timely pay the balance due for 1999.   (He also

noted that Trout had been late in filing his 1996 tax return.)
                              - 8 -

The Appeals officer concluded that there wasn’t a less

intrusive alternative to the levy, since Trout offered no

collection alternatives besides the reinstatement of the OIC.3

     Trout contends that the Appeals officer ignored Robinette

by not considering whether the alleged nonfiling of the returns

was a material breach of contract.     The Appeals officer

acknowledged that Trout believes Robinette to be the

controlling precedent, but concluded in his case memorandum:

“In my opinion, whether there was or was not a material breech

[sic] of contract does not matter.    The taxpayer failed to

comply with the terms of the [OIC].”

     The case was set for trial in Chicago, though Trout was a

resident of Arizona when he filed his petition.4    The parties

submitted the case for decision under Rule 122, and stipulated

most of the record.   They disagree only on whether Trout timely

filed his 1998 and 1999 tax returns, whether he timely paid his

1999 tax due, and whether a letter from the USPS can be

introduced into evidence.   Only Trout’s tax liability for 1993

remains at issue, because the Commissioner has conceded that




     3
       Trout had asked for an installment agreement in his
request for a CDP hearing, but he never pursued the issue at that
hearing or in his petition to our Court.
     4
       This means that any appeal would lie to the Ninth Circuit
unless the parties stipulate otherwise. See sec. 7482(b)(1)(A)
and (2).
                                - 9 -

the statute of limitations for collection after assessment has

expired for tax years 1989, 1990, and 1991.

     Trout argues that the Appeals officer abused his

discretion in refusing Trout’s request to reinstate his OIC.

He relies heavily on the similarities between his case and

Robinette, and so argues that even if he didn’t file his

returns, the Commissioner should still have reinstated the OIC

because his purported breach is immaterial.    He also asserts

that the ten-year collection statute has expired even for

1993.5

                           Discussion

     Both parties agree that we’re reviewing not a challenge to

Trout’s underlying tax liability, but only the Commissioner’s

decision to sustain the levy.    See sec. 6330(c)(2)(A).   The

question therefore is whether the Commissioner abused his

discretion.   We look to see if he “‘ma[de] an error of law * *

* or rest[ed] [his] determination on a clearly erroneous


     5
       Trout does not, however, argue the point at any length.
Nor could he do so successfully, because the 1993 tax was
assessed on May 6, 1996. Section 6502(a)(1)’s ten-year period
for collection began on that date, but it is tolled during the
pendency of an OIC, a CDP hearing, and a Tax Court case. Secs.
6330(e)(1), 6331(i)(5) and (k)(1), 6502(a), and 6503. Even
disregarding language in paragraph 7(n) of the OIC waiving the
statute of limitations, the statute was at least tolled from the
date of the OIC’s submission to the date of its acceptance (from
June 10, 1996 to January 15, 1997), during the CDP hearing
process (from April 5, 2004 to March 3, 2005), and while this
case is pending in our Court. This is more than enough time to
keep this case within the ten-year limitation period.
                              - 10 -

finding of fact * * * [or] applie[d] the correct law to the

facts which are not clearly erroneous but rule[d] in an

irrational manner.’”    Indus. Investors v. Commissioner, T.C.

Memo. 2007-93 (quoting United States v. Sherburne, 

, 1125-26 (9th Cir. 2001)); see also Cooter & Gell v.

Hartmarx Corp., 

, 402-03 (1990).

       In Robinette, we held that the Commissioner abused his

discretion by not reinstating an OIC despite Robinette’s

failure to timely file his tax returns.    In that case, we held

that

            [d]espite the late filing * * *, under the
            facts and circumstances of this case, [the
            Commissioner] abused his discretion in
            determining to proceed with collection.
            The Appeals officer acted arbitrarily and
            without sound basis in law and had a closed
            mind to the arguments presented on
            petitioner’s behalf. He failed to consider
            the facts and circumstances of this case.
            He determined to proceed with collection
            even though the breach in the contract was
            not material and under contract law the
            contract remained in effect.

.

       Trout argues that his case is just like Robinette’s--even

the Appeals officer in this case is the same--and so he argues

that we have to reach the same result here, even though we were

reversed on appeal.6   He claims that his case is even stronger


       6
       We follow our reviewed opinions in later cases, Lawrence
v. Commissioner, 

, 717 (1957), revd. on other grounds
                                                  (continued...)
                              - 11 -

than Robinette’s because the facts show that he didn’t actually

breach his OIC, much less breach it materially.

     We first address whether the Commissioner erred in finding

that Trout breached the OIC by not timely filing his 1998 and

1999 returns.    We then analyze whether our decision in

Robinette compels us to hold that the OIC was still in effect

because any breach was not material.    And, finally, we review

the Commissioner’s exercise of discretion in ultimately

sustaining the levy.

A.   Did the Appeals Officer Abuse his Discretion in
     Finding that Trout Didn’t Timely File and Pay
     for 1998 and 1999?

     Trout claims that he timely filed his returns for 1998 and

1999.    He argues that his accountant prepared returns for both

years, but explains the absence of any IRS record of their

receipt by suggesting that they might have been filed under the

wrong social security number.    We’re skeptical about this

explanation at the outset, because Trout filed requests for


     6
      (...continued)

(9th Cir. 1958), unless doing so would as a
practical matter be pointless, because appeal lies to a circuit
court that has ruled to the contrary, Golsen v. Commissioner, 

, 757 (1970), affd. 

(10th Cir. 1971). But
nothing in Golsen or in Lawrence precludes us from revisiting an
issue, as we do here, when the issue on which there has been an
intervening reversal arises anew. We said in 

, that in these circumstances, we “must thoroughly
reconsider the problem in the light of the reasoning of the
reversing appellate court and, if convinced thereby, the obvious
procedure is to follow the higher court.”
                             - 12 -

extensions of his filing deadlines for both those years using

the same wrong social security number, and the Commissioner

managed to successfully process both of them.

     The Commissioner also argues that it’s up to Trout to

prove timely filing.   And, other than unsigned copies of his

returns, Trout points to nothing in the record (e.g. a

certified mail receipt) that proves he mailed the returns,

proffered no testimony from his accountant, and most

importantly, introduced no canceled checks or bank records

suggesting that he timely paid the balance due on his 1999

taxes, or received his refund for 1998.   When the Appeals

officer checked IRS records for Trout’s 1999 tax return, he

found that it still hadn’t been processed as of January 12,

2005--despite numerous requests for a signed 1999 tax return

and the assistance of two attorneys from two different law

firms.

     The general rule is that a tax return is filed when it’s

received.   United States v. Lombardo, 

, 76 (1916).

Section 7502 provides exceptions to this general rule for

returns received after, but postmarked by the USPS on or

before, their due date--and even for returns not received at

all if they were sent by registered or certified mail.   Sec.

7502; sec. 301.7502-1(c)(1)(iii)(A),(2), Proced. & Admin. Regs.

Trout’s original returns were never received.   And there is no
                               - 13 -

evidence in the record of either a postmark, or a certified or

registered-mail receipt.    Sec. 7502(a)(1) and (c).    This was

also an issue in Robinette, but in that case there was a

detailed explanation of the postmark, physical evidence of the

postmark, and a detailed itinerary of the whereabouts of the

accountant who mailed the return.       Robinette, 

,

106.

       Some courts allow other evidence that the taxpayer has

fulfilled the requirements of section 7502.       In Anderson v.

United States, 

, 490-92 (9th Cir. 1992), the Ninth

Circuit held that although section 7502 created a statutory

mailbox rule, it did not displace the common-law mailbox rule

that the proper mailing of an envelope creates a rebuttable

presumption of its receipt.    But this presumption, absent

physical evidence such as a postmark, requires a finding on the

credibility of the taxpayer.    In Anderson v. United States, 746

F. Supp. at 15,(E.D. Wash. 1990), the District Court found

credible the taxpayer’s testimony that she saw the postal clerk

postmark her return and place the envelope in the mail.      The

Anderson court also found that the government lacked

credibility when it claimed not to have received the tax

return, since it admitted losing other taxpayers’ documents.

                             - 14 -

     Because Trout submitted this case for decision without

trial under Rule 122, we are unable to make findings of

credibility on this issue.   Nor has Trout offered any evidence

to prove that he ever mailed his tax returns before the IRS

started levying on his property, much less that he timely

mailed them.   So Trout cannot rely on any presumption of

delivery.   Cf. Robinette, 

.

     Even if the Appeals officer had found that Trout timely

mailed his tax returns, the Commissioner rebutted whatever

advantage the common-law mailbox rule might have given Trout.

See Smith v. Commissioner, T.C. Memo. 1994-270, affd. without

published opinion 

(9th Cir. 1996).   The

Commissioner’s evidence of nonreceipt was overwhelming:     The

Appeals officer conducted a nationwide search on the master

files of the IRS to see if any return had been filed for 1998

or 1999 under either Trout’s real social security number or the

one he says he used.   The Commissioner also notes that the IRS

issued no refund for 1998, even though Trout requested a refund

on his return.   And Trout offered no proof that he received the

refund he was owed on his 1998 taxes.   As for the 1999 tax

year, the IRS had no record of a timely $164 payment, and Trout

has no canceled check to back up his claim.

     We conclude that the Appeals officer did not clearly err

in finding that the IRS did not receive the 1998 and 1999
                             - 15 -

returns on time.   See Walden v. Commissioner, 

, 951-

52 (1988).   We therefore find no abuse of discretion in his

determination that Trout failed to timely file those returns.

     But was that enough to justify the Commissioner’s decision

to pull the OIC?

B.   Did the Appeals Officer Abuse His Discretion in Defaulting
     the OIC?

     Trout believes that his case is exactly like Robinette,

and he specifically appeals to our holding that Robinette’s

failure to timely file was not a material breach of his OIC.

Because the breach wasn’t material, we held that the OIC was

still in effect under general principles of contract law.       

(citing TXO Prod. Corp. v. Page Farms, Inc., 

, 793, (Ark. 1985)).   And since “the offer-in-compromise was

not in default, it was an abuse of discretion for [the

Commissioner] to determine to proceed with collection of

[Robinette’s] tax liability.”   Robinette, 

.

     In this case, the Appeals officer decided that Trout

breached his OIC by not timely filing his 1998 and 1999

returns, not timely paying his 1999 taxes, and because timely

filing and paying was an express condition of the OIC.    The

Appeals officer knew about Robinette, but believed that Trout’s

noncompliance with the express terms of the OIC made irrelevant

the materiality of those breaches.    After the Eighth Circuit

issued its opinion, we have faced a similar problem at least
                               - 16 -

twice.   But in both Ng v. Commissioner, T.C. Memo. 2007-8, and

West v. Commissioner, T.C. Memo. 2008-30, we were able to

conclude that the taxpayer had both materially breached his OIC

and violated its express conditions.

     We think it best now to decide the issue of whether the

Commissioner should analyze violations of OICs for materiality

of breach or express conditions, rather than require both the

Commissioner and taxpayers to argue both theories in every case

because of the uncertainty now present in the caselaw.

     We start by being precise in describing what it was that

we held in Robinette.     We began with the proposition that OICs

are contracts, and so their construction is governed by general

principles of contract law.     

  Our lead opinion cited

Arkansas law--Robinette being a resident of Arkansas when he

filed the petition and during the tax years at issue--for the

proposition that a material breach discharges a party’s

obligation to perform, whereas a minor breach does not.      

analyzed whether the breach was material under the

five-factor test from 2 Restatement, Contracts 2d, sec. 241

(1981), carefully noting that Arkansas had adopted this

analysis.    These five factors balance:

            (a)   the extent to which the injured party
                  (here the Commissioner) is deprived of
                  the benefit he reasonably expected from
                  entering into the OIC;
                               - 17 -

            (b) the extent to which the Commissioner
            is adequately compensated for the loss of
            that benefit;

            (c) the extent to which the breaching
            party (here the taxpayer) suffers
            forfeiture;

            (d) the probability that the breaching
            party will cure his breach, taking
            into account all of the circumstances
                 including “reasonable assurances”; and

            (e)   the extent to which the breaching
                  party’s behavior comports with standards
                  of good faith and fair dealing.

After balancing these factors, we found that the breach wasn’t

material.    Robinette, 

.

     This opinion garnered the votes of 6 of the 17 judges then

in office.    It also attracted a number of concurrences.    Judge

Wells wrote that our focus on contract law was unnecessary in

deciding that the Commissioner abused his discretion, and that

Appeals officers shouldn’t be “required to rigidly apply

contract law.”     

  He would have focused the

analysis on whether the Appeals officer conducted a proper

balancing analysis of the competing interests of the taxpayer

and Commissioner under section 6330(c)(3)(C)--the intrusiveness

of collection action with the Commissioner’s interest in

efficient tax collection.     

  His position attracted

4 other votes, including 2 from judges who also agreed with the

lead opinion.
                              - 18 -

       Judge Thornton’s concurrence emphasized that a taxpayer’s

“express agreement” to timely file his returns is an “integral

condition” to the Commissioner’s acceptance of the OIC, and

that such a condition is reasonable because it merely confirms

a statutory obligation even in cases where a refund is due.

   This position won the approval of a majority of

the Court--11 of 17, including 5 of the 6 votes in favor of the

lead opinion.

       Judge Marvel’s concurrence questioned the lead opinion’s

reliance on principles of contract law, but concluded that the

Appeals officer’s failure to investigate whether the OIC could

be reinstated (when this was obviously an important collection

alternative) was a more than sufficient basis to sustain a

finding of abuse of discretion.    

  Her position

was joined by two judges, one of whom had supported the lead

opinion, and one who had joined Judge Wells’s concurrence.

       And Judge Haines wrote to warn specifically that the lead

opinion’s citations to Arkansas state law shouldn’t be

construed as requiring the use of the law of a taxpayer’s state

of residence rather than general contract principles.     

   He warned of the “administrative nightmare” that would

result from requiring Appeals officers to apply state, rather

than general, contract law.    He also noted that the Internal

Revenue Manual said that an OIC may be defaulted when
                              - 19 -

subsequent tax returns aren’t timely filed.     

   This

position was supported by 2 other judges.

     Judge Wherry’s concurrence didn’t touch on any questions

of contract law, and the dissent (which gathered only 2 votes),

only echoed the concerns of Judge Haines’s concurring opinion

on this point.    

n.8.

     Given the multiple opinions in Robinette, it is not clear

whether a majority of the Court supported the possible reliance

on Arkansas contract law--on that issue, the vote seems to have

been 6-5 (the lead opinion having 6 votes, and the dissent plus

Judge Haines’s concurring opinion together having 5).     This led

the Eighth Circuit on appeal to be unsure whether we had.

n.6.     That court made it clear

nevertheless that it thought federal, rather than state,

common-law principles govern OICs.     

States

v. Kimbell Foods, Inc., 

, 726 (1979)).

     In light of the Eighth Circuit’s reversal, we think it

necessary to clarify our position in Robinette that the

“general principles of contract law” that we applied in

Robinette are the general principles of the federal common law

of contracts.    See West v. Commissioner, T.C. Memo. 2008-30

(citing Dutton v. Commissioner, 

, 138 (2004)).      See

also Clearfield Trust Co. v. United States, 

, 366-

67 (1943).
                             - 20 -

     We have several reasons to do so.   First, this is

litigation between an agency of the federal government and a

taxpayer.   Though not sufficient in itself, this is a factor

weighing in favor of using federal common law.   See Boyle v.

United Techs. Corp., 

, 504 (1988).   Second, OICs

are a creation of several provisions of the Code and

regulations--all federal law.   See Kimbell 

, 728.   It is also a program that the IRS has to run across

the country, and the “administrative nightmare” that Judge

Haines referred to in his concurrence supports a uniform

national legal standard for construing OIC agreements.    These

three factors--a federal government agency as litigant,

contracts entered into under federal law, and the need for

nationwide uniformity in administration, all point us to the

federal common law of contracts as our source of rules.    See

; Kimbell 

.

     Our cites to Arkansas law in Robinette should henceforth

be taken to illustrate general principles of the federal common

law of contracts.   That many states--like Arkansas--use the

Restatement of Contracts tends to prove that the Restatement is

a good source for discerning these general principles.    Courts

applying federal common law find in the Restatement “the

standard principles of contract law--more precisely, the core

principles of the common law of contract that are in force in
                              - 21 -

most states.”    United States v. Natl. Steel Corp., 

, 1150 (7th Cir. 1996) (citing Fleming v. United States

Postal Serv., 

, 260-61 (7th Cir. 1994)).

     Precedents from the Court of Federal Claims are also a

rich source of this federal common law.    And that court, like

the Restatement, tells us to give contractual language the

“meaning that would be derived from the contract by a

reasonable intelligent person acquainted with the

contemporaneous circumstances. * * * [A] court must give

reasonable meaning to all parts of the contract and not render

portions of the contract meaningless.”     Gutz v. United States,

, 296-97 (1999) (citations omitted); see also 2

Restatement, Contracts 2d, sec. 203(a) (1981).

     The interpretation of the OIC agreement is crucial here

because the parties disagree about whether the five-years-of-

timely-filing requirement is an “express condition.”    Trout

claims that even if he didn’t timely file and pay, his breach

is immaterial.   But it is literally hornbook law that an

express condition is subject to strict performance, thus making

the materiality of the breach irrelevant.    Calamari & Perillo

on Contracts, sec. 11.15 (5th ed. 2003).    So if Trout’s

obligation to file and pay taxes is an express condition,

strict performance is required, and filing late for even one

year is enough to find that he breached the OIC.
                              - 22 -

     Whether a condition is an express condition is a matter of

contractual interpretation.   

can be

made by agreement of the parties, and there are certain words

that are often used to create express conditions such as “on

condition that”, “provided that”, and “if”.   2 Restatement,

Contracts 2d, sec. 226 cmt. a (1981).   The Ninth Circuit,

applying federal common-law principles, has favored

interpretation of OICs according to the plain meaning of their

words, unless the parties manifest a different intention.

Johnston v. Commissioner, 

, 1165 (9th Cir. 2006),

(citing 2 Restatement, sec. 202(3)), affg. 

(2004).

     The OIC agreement that Trout signed says in bold type in

paragraph 7:

               By submitting this offer, I/we understand
          and agree to the following terms and conditions:
           * * *

                (d) I/we will comply with all
          provisions of the Internal Revenue Code
          relating to filing my/our returns and
          paying my/our required taxes for five (5)
          years from the date IRS accepts the offer,
          * * *

               (j) I/we understand that I/we remain
          responsible for the full amount of the tax
          liability unless and until IRS accepts the
          offer in writing and I/we have met all the
          terms and conditions of the offer. IRS
          won’t remove the original amount of the tax
          liability from its records until I/we have
          met all the terms and conditions of the
          offer.
                               - 23 -

               (k) I/we understand that the tax I/we
          offer to compromise is and will remain a
          tax liability until I/we meet all the terms
          and conditions of this offer.* * *

               (o) If I/we fail to meet any of the terms
          and conditions of the offer, the offer is in
          default, and IRS may:

                 *    *    *     *      *   *     *

                     (iii) disregard the amount of the offer
                and apply all amounts already paid under
                the offer against the original amount
                of tax liability;


     The “Instructions” part of the OIC agreement says in the

“Tax Compliance” paragraph: “Please note that the terms of the

offer also require your future compliance (i.e. filing and

paying for five years) after acceptances.”      And it cautions in

item 7:

          It is important that you understand that when
          you make this offer, you are agreeing that:

          * * *(d) [I]RS can reinstate the entire amount
          owed if you don’t comply with all the terms
          and conditions of the offer, including the
          requirement to file returns and pay tax for
          five years.

     The Commissioner could hardly have used plainer language

to explain the terms and conditions of the OIC or to express

his intent.   He repeatedly cautioned the taxpayer who signs the

OIC: “It is important that you understand that”, and “Please

note that”; he used a bold font, and he stated that he can

reinstate the original liability for failure to meet any of the
                               - 24 -

terms and conditions in paragraph o.      Finally, just to be sure

that Trout understood that the terms of the offer required

timely filing and payment for five years after entering into

the OIC, the OIC form lists it clearly and in boldface, as a

“term and condition” in paragraph d.      It’s listed on the

Instruction part of the OIC agreement to boot.

     Courts may in borderline cases nevertheless favor

construction against finding an express condition, especially

if doing so would avoid a forfeiture.       2 Restatement, Contracts

2d, sec. 227 and cmt. b (1981).    This is also true if the

occurrence or nonoccurrence of a condition was outside the

contracting party’s control.    

neither a risk

of forfeiture nor evidence that Trout was powerless to avoid a

breach here.   There’s no forfeiture because payments Trout made

under the OIC remain credited to his account, and there’s

nothing in the record to suggest that the timely filing of his

tax returns was not under his control.      In any event, we don’t

have to rely too much on general principles of the contract law

of express conditions--other federal courts construing OICs

have already upheld the Commissioner’s right to cancel them

when a taxpayer defaults because the agreement expressly

provided “with language * * * so precise, and the intention

which it manifests is so evident, as to leave no doubt that the

course of action taken by the Government here was fully
                              - 25 -

authorized by the compromise agreement.”   United States v.

Lane, 

, 4 (5th Cir. 1962).   The Third Circuit had

similarly held that the Commissioner could default an OIC when

a taxpayer failed to make a payment because “[b]y the clear

language of the   offer-in-compromise [the taxpayer] agreed

that, upon his default, the Commissioner * * * could terminate

the compromise agreement.”    United States v. Feinberg, 

, 357-58 (3d Cir. 1965).   The court relied on this

conclusion in Fortenberry v. United States, 49 AFTR 2d 82-1027,

82-1 USTC par. 9191 (S.D. Miss. 1981), to hold that the

Commissioner could declare a compromise agreement in default

when the taxpayer didn’t make payments as agreed.   And of

course, the Eighth Circuit in Robinette itself held that the

terms of an OIC were express conditions.   

.

     So we hold that the Appeals officer committed no error of

law in concluding that Trout’s timely-filing-and-paying

requirement was an express condition of his contract with the

IRS, and that it required strict compliance to avoid breach--

making the question of whether his breach was material

irrelevant.   Or, as the Ninth Circuit has said in reviewing the

obligations of an OIC:   “[A] deal is a deal, even with the tax

man.”   

.
                                 - 26 -

C.     Did the Appeals Officer Abuse His Discretion in
       Sustaining the Levy?

       Even though we hold timely filing and payment was an

express condition, and so agree with the Appeals officer that

Trout did breach his OIC agreement, we must not end our

analysis there.    Section 6330(c)(3)(C) commands the

Commissioner to balance the need for efficient collection of

taxes with the legitimate concern that collection be no more

intrusive than necessary.    In Robinette, we found that the

Appeals officer “had a closed mind to the arguments presented

on petitioner’s behalf” in deciding to proceed with collection

even though the breach in the contract wasn’t material.       

   A major conclusion of the lead and concurring opinions

was that the Commissioner abused his discretion in not carrying

out his mandate under section 6330 to conduct the required

balancing analysis.    We homed in on the Commissioner’s refusal

even to consider reinstatement of the OIC as proof that his

analysis was flawed.

       This case is different.    Here the Commissioner did not

lightly default the OIC and reinstate the liability for a de

minimis fault, but made several efforts to bring Trout back

into the taxpaying fold.    First, he ignored Trout’s late filing

in 1996.    When the 1999 tax return wasn’t filed, he waited

almost two years before sending a potential OIC default letter,

even though the terms of the OIC said that the OIC could be
                              - 27 -

defaulted without warning if it wasn’t strictly complied with.

Although Trout claims to have received no notice, it’s

understandable why the Appeals officer might not have found

this claim credible since this letter was also mailed to his

lawyer and it’s improbable that neither received the letter.

Nor is there any evidence from the lawyer on this point.     And

although the potential OIC default letter warned Trout that he

had 30 days to pay his taxes, the Commissioner actually waited

almost seven months to default the OIC.

     The Appeals officer understood even then that he had the

discretion to excuse the breach of the express condition and

reinstate the OIC.   He chose not to.   This is understandable--

Trout’s only consideration for the potential forgiveness of

almost 95 percent of his tax debt was his promise to timely

file and pay his taxes for five years after the OIC.    In

Robinette, the consideration given by the taxpayer for the OIC

was not only a timely-filing-and-paying promise but also an

agreement to pay substantial portions of his income exceeding

$100,000.   Not so here:   All the IRS was getting other than the

small $6,000 in upfront money was Trout’s promise to comply

with the law.   This focused the Appeals officer’s concentration

on Trout’s compliance history (both before and after the OIC)--

which featured multiple requests for extensions of his filing

deadlines, followed by returns that he filed late or not at
                                    - 28 -

all.       Trout also offered no other collection alternatives, such

as an installment agreement, even though he was doing fairly

well.7

       The Appeals officer balanced the competing interests of

the taxpayer and Commissioner, as required under section

6330(c)(3)(C).       Stated in the OIC agreement itself is the para-

graph entitled “IRS policy,” which told Trout that the purpose

of the OIC program is to give taxpayers a fresh start in tax

compliance by allowing them to settle tax debts for less than

they owe.       This is undermined if a taxpayer can reduce his

liabilities with an OIC, yet still indulge in late-filing

recidivism.       The record before the Appeals officer here was not

the record before him in Robinette, where, for example, the

taxpayer probably missed one filing deadline by only a few

n.2.    It is instead the story of a

taxpayer who filed months late or not at all for three of the

five years after he signed the OIC.

       The stated goal of the OIC program--returning wayward

taxpayers to the path of tax righteousness--would be entirely

blocked if we were to hold that the express condition of timely



       7
       Unlike Robinette, who had an annual income of less than
$100,000 in tax years 1995-99, but whose reinstated tax liability
was for roughly $1 million, Robinette, 

n.2, Trout
had earned between $130,000 and $836,000 annually in the three
years before his request for a CDP hearing. And by the time the
Commissioner got around to collecting Trout’s tax debt, the
statute of limitations had run on all but one year, leaving him
with a reinstated liability of less than $90,000.
                             - 29 -

filing agreed to by a taxpayer really meant that he could file

returns late as long as they showed a net refund.   We’d be

stripping the Commissioner not only of his chosen remedy

(reinstatement of the original debt), but also of his chosen

emphasis on a taxpayer’s future compliance as an aim of the OIC

program.

     We therefore find that the Appeals officer didn’t abuse

his discretion in not excusing an express condition of Trout’s

contract with the IRS.   The Appeals officer considered

reinstatement of the OIC as a collection alternative, but

believed that Trout wasn’t entitled to a second chance after

looking at his pattern of noncompliance.   Moreover, Trout’s

failure to successfully file his 1999 return (which he just had

to sign and file under his correct social security number),

even with the help of two attorneys, and even while the CDP

hearing was pending, reasonably failed to inspire the Appeals

officer’s confidence that Trout was serious about timely filing

and paying his taxes going forward.

     In conclusion, we sustain the Appeals officer’s finding

that Trout didn’t timely file his returns for 1998 and 1999 or
                              - 30 -

timely pay his tax for 1999, and also sustain his decision not

to reinstate the OIC.   Accordingly,

                                            An order and decision

                                       for respondent as to tax

                                       year 1993 will be entered.



     Reviewed by the Court.

     COHEN, WELLS, HALPERN, FOLEY, GALE, THORNTON, HAINES,
GOEKE, WHERRY, KROUPA, GUSTAFSON, PARIS, and MORRISON, JJ.,
agree with this majority opinion.
                              -31-

     MARVEL, J., concurring in the result:    I agree with the

result reached by the majority.    I write separately, however,

to emphasize the obligation of the Appeals Office of the IRS to

verify whether applicable administrative procedures governing

the default of an offer-in-compromise (OIC) were followed in a

section 6330 proceeding involving a defaulted OIC for an

alleged breach of the OIC’s timely filing/payment provision

(compliance provision).   Although petitioner clearly breached

his OIC and the IRS properly exercised its discretion in

reinstating petitioner’s original tax liability, there have

been and no doubt will be other cases where that conclusion is

not so evident.

     The majority points out that an express condition is

subject to strict performance.    See majority op. p. 21.   It

then examines the language of the OIC and concludes that

petitioner’s obligation to file timely returns and to pay all

required taxes for a 5-year period beginning on the date the

OIC is accepted is an “express condition” of the IRS’s

obligation to perform under the OIC.    The majority holds “that

the Appeals officer committed no error of law in concluding

that * * * [petitioner’s] timely-filing-and-paying requirement

was an express condition of his contract with the IRS, and that

it required strict compliance to avoid breach--making the
                              -32-

question of whether his breach was material irrelevant.”

Majority op. p. 25.

     The majority quotes from the OIC to which petitioner and

the IRS agreed to be bound.   The relevant language of the OIC

states that (1) if the taxpayer fails to meet any of the terms

and conditions of the offer, “the offer is in default”;1 and

(2) the IRS may take certain actions because of the taxpayer’s

failure, including reinstating and collecting the compromised

liability.   See 2 Administration, Internal Revenue Manual (IRM)

(CCH), pt. 5.19.7.3.26(1), at 18,537 (Dec. 5, 2006).2     However,

the OIC does not state that the IRS must terminate it (or that

the OIC automatically terminates) in the event of a breach.

Rather, the OIC states that the IRS may terminate it (by

reinstating the original liability and collecting it).     I

construe this language as giving the IRS discretion to




     1
      The IRM seems to use the term “default” in two different
contexts. It uses the term “default” to describe the situation
when a taxpayer reaches potential default status by not adhering
to the compliance provisions of the offer. See, e.g., 1
Administration, IRM (CCH), pt. 5.8.9.3(1)(B), at 16,404 (Sept.
23, 2008). It also uses the term “defaulted” to describe the
process of reinstating the original liability. See, e.g., 2
Administration, IRM (CCH), pt. 5.19.7.3.27(1), at 18,551 (Dec. 5,
2006). For purposes of this concurrence, I use the term “breach”
to mean a failure to comply with the OIC’s compliance provision
and “terminate” or its derivative to refer to the process of
reinstating the original liability because of a breach.
     2
      References to the IRM are to the current edition.
                               -33-

terminate an OIC if the taxpayer breaches one of the OIC’s

terms and conditions.

     The discretion that I believe the OIC confers on the IRS

to deal with a breach of the compliance provision is also

reflected in the procedures that IRS personnel are expected to

follow in monitoring an OIC and determining a course of action

in the event of an alleged breach.    The IRM contains provisions

that instruct IRS personnel how to proceed with potential

default cases.    For example, 1 Administration, IRM (CCH), pt.

5.8.9.3(1)(B), at 16,404 (Sept. 23, 2008), states that an offer

can reach “potential default status” if “The taxpayer has not

adhered to the compliance provisions of the offer”.    In such

cases, the “Campus MOIC [Monitoring Offer in Compromise] units

have responsibility and authority to make determinations on

potential offer default cases”, 1 Administration, IRM (CCH),

pt. 5.8.9.3(2), at 16,404 (Sept. 23, 2008), pursuant to

procedures currently set forth in 2 Administration, IRM (CCH),

pt. 5.19.7.3.26.5, at 18,544-18,550 (Dec. 5, 2006).    The IRM

further states:

     The MOIC unit will make an attempt to secure
     compliance. If the taxpayer fails to comply with any
     requests for delinquent returns or payments, the MOIC
     unit will default the offer. After all appropriate
     letters have been sent, generate a * * * [Taxpayer
     Delinquent Investigation] or * * * [Taxpayer Delinquent
     Account], as appropriate and close the case as a
     default. [1 Administration, IRM (CCH), pt. 5.8.9.3(3),
     at 16,404 (Sept. 23, 2008).]
                              -34-

     The procedures that the MOIC units are expected to follow

when a potential default is attributable to the taxpayer’s

alleged failure to file a required return include sending a

letter to the taxpayer about the missing return.   See 2

Administration, IRM (CCH), pt. 5.19.7.3.26.5(7), at 18,544-

18,545 (Dec. 5, 2006).   Under IRM procedures the taxpayer is

supposed to be given an opportunity to explain why a return is

not due and/or to file the delinquent return if one is due and

unfiled.   See 2 Administration, IRM (CCH), pt.

5.19.7.3.26.5(8), at 18,545-18,548 (Dec. 5, 2006).   Only after

IRS employees have followed the procedures governing “Failure

to Adhere to Compliance Terms” are the employees instructed to

process a default in accordance with the provisions of the IRM.

See, e.g., 2 Administration, IRM (CCH), pt. 5.19.7.3.26.5(7)

and (8).   The IRM recognizes that it may not always be in the

best interests of the IRS to terminate an OIC even though the

taxpayer has breached one of the OIC’s terms and conditions.

See, e.g., 2 Administration, IRM (CCH), pt. 5.19.7.3.27(3) at

18,552 (Dec. 5, 2006).

     The majority points out that section 6330(c)(3)(C)

requires the Appeals Office, in making its determination, to

take into consideration “whether any proposed collection action

balances the need for the efficient collection of taxes with

the legitimate concern of the person that any collection action
                              -35-

be no more intrusive than necessary.”   The majority’s analysis

on this point distinguishes the factual situation in Robinette

v. Commissioner, 

(2004), revd. 

(8th

Cir. 2006), and emphasizes that “the Commissioner did not

lightly default the OIC and reinstate the liability for a de

minimis fault, but made several efforts to bring * * *

[petitioner] back into the taxpaying fold.”   Majority op. p.

26.

      The “Discussion and Analysis” attached to the notice of

determination issued to petitioner summarily states that “All

legal and procedural requirements are concluded to have been

met in this case” without specifying whether the Appeals Office

verified that the procedures specified in the IRM for

terminating an agreed OIC for noncompliance with the OIC’s

compliance provision were followed.   Nevertheless, the facts

recited in the attachment to the notice of determination and as

found by the majority confirm that the Appeals officer verified

the IRS had warned petitioner about his missing returns and had

given him an opportunity to file the missing returns before the

IRS terminated the OIC and decided to proceed with collection

by levy.   The facts recited in the attachment to the notice of

determination also confirm that unlike the taxpayer in

Robinette who had missed one filing deadline by only a few

hours, see majority op. p. 28, petitioner had an extended post-
                             -36-

OIC record of noncompliance that the Appeals Office took into

account in deciding whether the levy could proceed.   In

addition, petitioner did not offer any collection alternative

other than the reinstatement of the original OIC.3

Consequently, I agree with the majority’s conclusion that the

Appeals Office did not abuse its discretion in determining that

the proposed levy can proceed.

     I remain concerned, however, about how the Appeals Office

articulates, and will continue to describe, its obligations

under section 6330 in a case involving the termination of an

OIC where the IRS does not attempt to notify a taxpayer of an

alleged failure to satisfy the OIC’s compliance provision or to


     3
      The part in the IRM captioned “Actions on Defaults Offers”
contains a provision that states: “The Service may accept a
compromise of a compromise” and “There is no standard form for
such a proposal.” 4 Administration, IRM (CCH), pt. 8.23.3.13(7),
at 27,997-487 (Oct. 16, 2007). A taxpayer who has breached the
compliance provision of an OIC might propose a new OIC containing
substantially the same terms as the previous OIC or different
terms (e.g. an enhanced compliance period, a collateral
agreement, an additional lump-sum payment or deferred payment)
designed to convince the IRS that it is still in the best
interests of the IRS to compromise the liability despite the
taxpayer’s breach. A taxpayer might also propose other
collection alternatives such as an installment agreement, a
third-party payment or transfer of an asset that is otherwise
unavailable to the IRS. In this case, the only collection
alternative apparently presented by petitioner was the
reinstatement of the original OIC. The IRS, however, has taken
the position that “If the hearing officer determines that there
was a default, the termination of the OIC was legally authorized;
neither Headquarters nor the Office of Appeals can ‘reinstate’
the OIC.” 4 Administration, IRM (CCH), pt. 8.22.2.2.9(1), at
27,997-366 (Dec. 1, 2006); see also Chief Counsel Advice
200113031 (Mar. 30, 2001).
                              -37-

provide the taxpayer with a reasonable opportunity to cure an

alleged breach of that provision, or where the totality of the

facts and circumstances reveals an immaterial breach in

Robinette parlance.   See Robinette v. Commissioner, supra at

108-112.   Although this Court and others have held that

procedures set forth in the IRM “do not have the force or

effect of law” and a failure to adhere to them does not rise to

the level of a constitutional violation, see, e.g., Vallone v.

Commissioner, 

, 807-808 (1987) (checks obtained in

violation of IRM not a constitutional violation requiring

suppression); Riland v. Commissioner, 

(1982)

(failure to abide by IRM procedures not a violation of due

process), and that the IRM does not create any enforceable

rights for taxpayers, see Fargo v. Commissioner, 

,

713 (9th Cir. 2006), affg. T.C. Memo. 2004-13, section

6330(c)(1) specifically requires that the Appeals officer at

the section 6330 hearing shall obtain verification from the

Secretary that the requirements of any applicable law or

administrative procedure have been met.   Moreover, section

6330(c)(3) provides that the determination by an Appeals

officer under section 6330(c) shall take into consideration the

verification presented under section 6330(c)(1).

     In Chief Counsel Notice CC-2006-019 (Aug. 18, 2006),

respondent’s Office of Chief Counsel describes what an Appeals
                                -38-

officer dealing with a collection due process case is expected

to do regarding the section 6330(c)(1) verification

requirement:

     IV.   Sections 6320 and 6330

           5.    Matters considered at hearing

           a.    Section 6330(c)(1) verification

                  Sections 6320(c) and 6330(c)(1) require
                  the appeals officer to obtain
                  verification from the Secretary that the
                  requirements of any applicable law or
                  administrative procedure have been met.
                  Verification can be obtained at any time
                  prior to the issuance of the determination by
                  Appeals. Treas. Reg. §§ 301.6320-1(e)(1),
                  301.6330-1(e)(1). The requirements the
                  appeals officer [is] verifying are those
                  things that the Code, Treasury Regulations,
                  and the IRM require the Service to do before
                  collection can take place. [Emphasis added.]

The quoted language recognizes that in enacting section 6330,

Congress clearly expressed its intention (1) that the IRS

present verification during the section 6330 hearing that it

followed all applicable administrative procedures before

enforced collection action may proceed and (2) that the Appeals

officer conducting the section 6330 hearing take that

verification into account in deciding whether to proceed with

collection.     See sec. 6330(c)(1), (3).

     Although there may be an unresolved issue of statutory

interpretation regarding the meaning of “any applicable * * *
                             -39-

administrative procedure” under section 6330(c),4 the IRM

contains procedures that the IRS expects its personnel to

follow in administering Federal tax law.    See 1 Administration,

IRM (CCH), pt. 1.11.2.1.1(1), at            (Apr. 1, 2007).5

More precisely, the IRM contains procedures that IRS personnel

are expected to follow before terminating an agreed OIC after a

breach of the OIC’s compliance provision.    These procedures



     4
      Compare Drake v. Commissioner, T.C. Memo. 2006-151, affd.

(1st Cir. 2007) with Carlson v. United States, 394 F.
Supp. 2d 321, 329 (D. Mass. 2005).
     5
      1 Administration, IRM (CCH), pt. 1.11.2.1.1(1), at ______
(Apr. 1, 2007), states in pertinent part as follows:

     The IRM serves as the single, official source of
     IRS “instructions to staff” relating to the
     administration and operation of the Service. The
     IRM provides a central repository of uniform
     guidelines on operating policies and procedures
     for use by all IRS offices. It contains guidance
     on IRS policies and directions our employees need
     to carry out their responsibilities in
     administering the tax laws or other agency
     obligations.

Before its amendment in 2007, 1 Administration, IRM (CCH) pt.
1.11.2.1(2), at 5,027 (Oct. 10, 2003), stated in pertinent part
as follows:

     The IRM outlines business rules and administrative
     procedures and guidelines used by the agency to
     conduct business. It contains policy, direction
     and delegations of authority that are necessary to
     carry out IRS responsibilities to administer tax
     law and other legal provisions. The business
     rules, operating guidelines and procedures and
     delegations guide managers and employees in
     carrying out day to day responsibilities.
     [Emphasis added.]
                             -40-

regarding potential OIC defaults are sensible and reflect the

fact that an OIC authorizes but does not require the IRS to

terminate the OIC if a taxpayer allegedly fails to comply with

his filing obligation under the compliance provision.   The IRM

procedures instruct IRS employees monitoring OICs to

investigate the alleged failure to comply and, if there is such

a failure, to give the taxpayer a chance to correct it before a

decision is made to default (terminate) the offer.   These

procedures (which have been in place for many years in one form

or another) reflect a wise and balanced approach to monitoring

existing OICs and dealing with potential defaults.   When the

IRS takes the very serious step of terminating an OIC and

reinstating a taxpayer’s original tax liability, the Appeals

Office should verify that the IRS’s administrative procedures

for defaulting (terminating) the OIC were followed before it

sustains a determination to proceed with collection.    Sensible

tax administration and section 6330(c) would appear to require

it.

     COLVIN, COHEN, VASQUEZ, GALE, HAINES, WHERRY, and PARIS,
JJ., agree with this concurring opinion.