Jeffrey R. Taylor - Page 12

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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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