Hugh D. and Nancy L. Sims - Page 9




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          under section 104 cannot be attacked using section 6404(e)                  
          because that decision was made before respondent contacted                  
          petitioner in writing concerning the deficiency for the first               
          time, see sec. 6404(e), and involved the proper application of              
          Federal tax law, see sec. 301.6404-2T(b)(1), Temporary Proced. &            
          Admin. Regs., supra.  Any delay occurring after petitioners                 
          received the examination report and prior to the payment of the             
          tax deficiency was due to petitioners’ understandable desire to             
          consult with their tax adviser regarding an appropriate response            
          to the report.                                                              
               Petitioners’ complaint is really one against fate-–they                
          filed their return just before the Supreme Court provided                   
          definitive guidance on the correct tax treatment to be accorded             
          damages like those awarded here.  Section 6404(e) simply does not           
          reach this type of complaint.  Since there was no erroneous or              
          dilatory performance of a ministerial act, respondent lacked                
          authority to abate interest, and, therefore, his refusal to abate           
          interest in this case cannot be an abuse of discretion under                
          section 6404(e).  Accordingly, we must sustain respondent’s                 
          determination.                                                              
               To reflect the foregoing,                                              
                                                  Decision will be entered            
                                             for respondent.                          








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