Nicholas J. and Diane L. Palihnich - Page 10

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          refusal to abate $210.98 in interest for 1981 was not an abuse of           
          discretion because that interest did not accrue during the time             
          respondent lost petitioners’ 1981-82 amended returns.                       
          C.   Whether Respondent’s Loss of Petitioners’ 1981-82 Amended              
               Returns Was a Ministerial Act                                          
               Respondent contends that respondent’s loss of petitioners’             
          1981-82 amended returns was not a ministerial act.  We disagree.            
               Respondent’s loss of petitioners’ 1981-82 amended returns              
          fits easily within the definition of a ministerial act contained            
          in Treasury regulations.  Those regulations state that a                    
          ministerial act is a procedural or mechanical act that occurs               
          during the processing of a taxpayer’s case that does not involve            
          the exercise of judgment or discretion by the Commissioner.  Sec.           
          301.6404-2T(b)(1), Temporary Proced. & Admin. Regs., 52 Fed. Reg.           
          30163 (Aug. 13, 1987).  The Commissioner’s loss of a taxpayer’s             
          return is a procedural or mechanical act that does not involve              
          the exercise of discretion or judgment by the Commissioner.  The            
          Commissioner’s loss of a taxpayer’s returns is similar to an                
          unexplained delay in transferring a file or issuing a notice of             
          deficiency.  See, e.g., sec. 301.6404-2T(b), Examples (1) and               
          (2), Temporary Proced. & Admin. Regs., supra.                               
               In contrast, the loss of a taxpayer’s return is unlike a               
          decision about prioritizing cases or decisions (based on workload           
          and limited resources) whether or when to begin an audit or                 
          whether to send a revenue agent to training without reassigning             





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