Robert Banat - Page 6




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          6404(e)(1) was an abuse of discretion and, if the Court so                  
          determines, to order an abatement.3                                         
               Under section 6404(e)(1)(A), the Secretary has no authority            
          to abate an assessment of interest on a deficiency unless that              
          assessment is attributable in whole or in part to some error or             
          delay by an officer or employee (without distinction, employee)             
          of the Service in performing a ministerial act.  Unless the                 
          Secretary has the authority under section 6404(e)(1)(A) to abate            
          an assessment of interest on a deficiency, we have no authority             
          under section 6404(g) to review his failure to abate such                   
          interest.  The regulations interpreting section 6404(e) define              
          the term “ministerial act” as “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            


               3  In pertinent part, sec. 6404(g) provides:                           
                    SEC. 6404(g).  Review of Denial of Request for                    
               Abatement of Interest.--                                               
               (1)  In general.  The Tax Court shall have                             
               jurisdiction over any action brought by a taxpayer who                 
               meets the requirements referred to in section                          
               7430(c)(4)(A)(ii) to determine whether the Secretary’s                 
               failure to abate interest under this section was an                    
               abuse of discretion, and may order an abatement, if                    
               such action is brought within 180 days after the date                  
               of the mailing of the Secretary’s final determination                  
               not to abate such interest.                                            
               Petitioner meets the requirements of sec. 7430(c)(4)(A)(ii),           
          and the action was timely brought.                                          





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