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properly invoked the Court's jurisdiction pursuant to section
6404(g).6 See Rule 280(b)(2).
II. Abuse of Discretion
The Commissioner's power to abate an assessment of interest
involves the exercise of discretion, and we shall give due
deference to the Commissioner's discretion. See Mailman v.
Commissioner, 91 T.C. 1079, 1082 (1988). In order to prevail, a
taxpayer must prove that the Commissioner exercised this
discretion arbitrarily, capriciously, or without sound basis in
fact or law. See id. at 1084. Petitioners bear the burden of
proof. Rule 142(a).
A. Section 6404(a)
Section 6404(a) provides that the Commissioner is authorized
to abate the unpaid portion of the assessment of any tax or any
liability in respect thereof that is (1) excessive in amount, (2)
assessed after the expiration of the period of limitations
properly applicable thereto, or (3) erroneously or illegally
assessed. See also sec. 6601(e)(1) (stating that "any reference
in this title", except subchapter B of Chapter 63 (i.e., sections
6211-6216) to "any tax" also refers to interest imposed by
section 6601 on such tax). Section 301.6404-1(c), Proced. &
Admin. Regs., provides, in pertinent part:
6 While the Court has jurisdiction pursuant to sec. 6404(a)
and (g) to review the Commissioner's failure to abate interest on
employment taxes, sec. 6404(a) and (g) does not provide the Court
with jurisdiction to review a failure by the Commissioner to
abate an assessment of employment taxes.
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Last modified: May 25, 2011