Charles A. Nerad - Page 6




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          writing with respect to such deficiency or payment.  See sec. 6404(e)(1).   
               The term "ministerial act" means a procedural or mechanical            
          act that does not involve the exercise of judgment or discretion,           
          and that occurs during the processing of a taxpayer's case after            
          all prerequisites to the act, such as conferences and review by             
          supervisors have taken place.  See sec. 301.6404-2T(b)(1),                  
          Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13,              
          1987).4                                                                     
               For purposes of section 6404(e), an error or delay is taken            
          into account only after the IRS has contacted the taxpayer in               
          writing with respect to such deficiency or payment.  See sec.               
          6404(e)(1).  In this case, respondent did not contact petitioner            
          in writing until May 10, 1995.  No error or delay occurred after            
          this date.  In fact, petitioners received the notice of                     
          deficiency approximately 5 months after respondent contacted them           
          regarding the unreported income.  Therefore, petitioner's                   
          arguments that his employer failed to provide him with a proper             
          Form W-2 and that respondent provided him with misinformation are           
          unavailing.  These circumstances occurred before May 10, 1995.              



          4    The final Treasury regulation under sec. 6404 was issued on            
          Dec. 18, 1998.  The final regulation contains the same definition           
          of ministerial act as the temporary regulation.  The final                  
          regulation generally applies to interest accruing on deficiencies           
          or payments of tax described in sec. 6212(a) for tax years                  
          beginning after July 30, 1996.  See sec. 301.6404-2(b)(2),                  
          Proced. & Admin. Regs.                                                      






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