Jeffrey R. Taylor - Page 9

                                        - 9 -                                         
               ministerial act in regulations.  [S. Rept. 99-313 (1986),              
               1986-3 C.B. (Vol. 3) 208-209.]                                         
          The regulations provide:                                                    
               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.  A            
               decision concerning the proper application of federal tax              
               law (or other federal and state law) is not a ministerial              
               act. [Sec. 301.6404-2T(b)(1), Temporary Proced. & Admin.               
               Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987).]                            
               Petitioner argues that the refusal to continue the civil               
          investigation and proceeding, when the criminal investigation               
          commenced, was the result of a ministerial act.  Initially, we              
          note that the assumption that the civil investigation terminated            
          is incorrect.  A tax fraud investigation contains both criminal             
          and civil aspects.  It is only when the criminal case is                    
          forwarded to the Department of Justice that "the criminal and               
          civil aspects of a tax fraud case begin to diverge."  United                
          States v. LaSalle Natl. Bank, 437 U.S. 298, 311 (1978).  In a               
          joint investigation with the Examination Division and CID, the              
          investigation is controlled by CID, and to that extent it may be            
          said that the criminal aspects dominate the investigation.  But,            
          even then, as the Court noted in United States v. LaSalle Natl.             
          Bank, supra at 311-312:  "The Government does not sacrifice its             
          interest in unpaid taxes just because a criminal prosecution                
          begins."  Moreover, the civil fraud additions to tax (see sec.              

Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  Next

Last modified: May 25, 2011