Liability satisfied or unenforceable. The Secretary finds that the liability for the amount assessed, together with all interest in respect thereof, has been fully satisfied or has become legally unenforceable; . . . As Xx. Xxxxx noted at trial, the bankruptcy discharge makes the lien legally unenforceable. He stated, while discussing a Chapter 7 discharge, “Prior to the discharge, [the lien] is not unenforceable, we have a stay but it is not unenforceable. And nobody really has the authority to release that lien until the court issues the discharge. That’s the legal requirement to make it unenforceable.” The IRS had no control over the timing of plaintiff’s discharge from bankruptcy, so it could not agree to the ninety-day time period which plaintiff proposed.9 Instead, Xx. Xxxxx altered the terms of plaintiff’s offer and responded with what is seen most reasonably as a counteroffer. Thus, defendant’s March 28, 1995 letter was not an acceptance. The above analysis finds support in the treatise Xxxxxx on Contracts, which states that “[a] communicated offer creates a power to accept the offer that is made and only that offer. Any expression of assent that changes the terms of the offer in any material respect may be operative as a counter-offer; but it is not an acceptance and consummates no contract.” 1 Xxxxxx on Contracts § 3.28 (1993) (footnote omitted). The terms of the March 28, 1995 IRS letter differed materially from plaintiff’s offer by placing no limitation on the time period for release of the lien on the Clubhouse Drive property. Moreover, Xx. Xxxxx’x letter explicitly added another condition to the agreement, namely, that Xx. Xxxxxxx first had to obtain a discharge of a Chapter 7 bankruptcy proceeding before the lien would be released.10 Xx. Xxxxx’x letter stated that the tax lien would be released “[f]ollowing Chapter 7 discharge by the [bankruptcy] court and receipt of $30,000.00.” For these reasons, Xx. Xxxxx’x March 28, 1995 letter is seen most appropriately as a counteroffer to Xx. Xxxxxxx.11 9 Furthermore, plaintiff’s attorney and Xx. Xxxxx engaged in several interim conversations between March 8, 1995 and March 28, 1995. During those conversations, the parties agreed that plaintiff would need to obtain a discharge under a Chapter 7 bankruptcy proceeding, rather than a Chapter 11 proceeding. As of March 28, 1995, plaintiff had not yet converted from Chapter 11 to Chapter 7. When plaintiff did convert, his conversion would have begun a new sixty-day period in which creditors co...
