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and civil aspects of the case and is not "the processing of a
taxpayer's case after all prerequisites to the act, such as
conferences and review by supervisors, have taken place." Sec.
301.6404-2T(b)(1), Temporary Proced. & Admin. Regs., supra. Such
a decision cannot be considered a "ministerial act."
This holding is consistent with our holding in Lee v.
Commissioner, 113 T.C. (1999). In Lee the taxpayer sought an
abatement of interest during the period that the case was pending
before the Court. The tax liabilities involved in Lee arose out
of a tax shelter. There were criminal indictments that involved
the promoters. We rejected the taxpayer's abatement argument
noting that the mere passage of time during litigation "does not
establish error or delay by the Commissioner in performing a
ministerial act." Lee v. Commissioner, supra (slip op. at 9).
We further found that the delay
was a result of the Government's litigation strategy to
dispose of the criminal indictments first and the Court's
disposition of the parties' procedural motions.
Respondent's decision on how to proceed in the litigation
phase * * * necessarily required the exercise of judgment
and thus cannot be a ministerial act. [Id.]
Although in Lee the delay occurred after the taxpayer filed
a petition in this Court and the delay in the present case
occurred before the issuance of the notice of deficiency, this
does not appear to be a noteworthy distinction. The timing of
the decision to defer the civil proceedings until resolution of
the criminal aspects does not detract from the fact that the
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