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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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Last modified: May 25, 2011