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Under section 6404(e), petitioners must demonstrate that an
officer or employee of the IRS erred or was dilatory in
performing a ministerial act. By definition, a ministerial act
is one that is procedural or mechanical; it does not involve the
exercise of managerial discretion or judgment. See Lee v.
Commissioner, 113 T.C. 145 (1999); sec. 301.6404-2T(b)(1),
Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13,
1987).
Our review of the record in this case convinces us that the
decision of Appeals Officer Koniarski to order his work affairs
based on his caseload priorities was not a ministerial act as
that term is defined in section 6404.12 See Jacobs v.
Commissioner, T.C. Memo. 2000-123; see also sec. 301.6404-
2T(b)(2), Example (5), Temporary Proced. & Admin Regs., 52 Fed.
12At trial, the Court questioned Appeals Officer Koniarski
and his supervisor closely as to whether the IRS had established
any specific time limits by which an Appeals officer should have
completed his consideration of a case. They testified that there
were no specific time limits and that the processing of a case
was a matter largely left to the judgment and discretion of the
individual Appeals officer. The supervisor further testified
that periodic reviews were conducted to monitor the progress made
on the cases assigned to an Appeals officer and that an Appeals
officer’s caseload work priorities sometimes were readjusted,
particularly where some of the assigned cases were docketed in
court. An examination of the Internal Revenue Manual’s
provisions pertaining to the Appeals function disclosed no
specific time limits for closing out a case. Although the stated
mission of the Appeals Office, among other things, includes
affording a taxpayer a prompt conference and a prompt final
decision by the IRS, how and when a case is worked is left, in
large part, to the judgment and discretion of the Appeals
officer.
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