Larry G. Schuster - Page 5




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          the issuance of the July 20, 1997, levy was an error in                     
          performing a ministerial act and that respondent failed to give             
          petitioner notice of intent to levy pursuant to section 6331(d)6            
          for the 1994 taxable year.  Petitioner asks this Court to abate             
          interest in the amount of $1,082.37 and statutory additions in              
          the amount of $53.48, which he claims is the portion of the July            
          20, 1997 levy proceeds attributable to respondent’s error.                  
               Respondent argues that no additional interest was assessed             
          after July 10, 1997; thus, there is no interest to be abated.               
          Respondent claims that the July 20, 1997, levy was issued because           
          the July 10, 1997, levy proceeds were not inputted as a credit              
          into petitioner’s 1993 account until July 28, 1997.  Respondent             
          claims that petitioner’s argument should properly be                        
          characterized as a wrongful levy claim, not a claim for the                 
          abatement of interest.  Respondent further argues that any error            
          on his part is not due to a ministerial act because the issuance            
          of a levy requires the exercise of judgment and is not a                    
          procedural or mechanical act.                                               
               Section 6404(e)(1) provides, in pertinent part, that the               
          Commissioner has discretionary authority to abate part or all of            
          an assessment of interest on:  (1) Any deficiency attributable to           


               6Sec. 6331(d) provides that levy may be made upon the                  
          salary, wages, or other property of any person with respect to              
          any unpaid taxes only after the Secretary has given written                 
          notice to such person of an intent to levy, no less than 30 days            
          before the day of levy.                                                     




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