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prerequisites to the act, such as conferences and review by
supervisors, have taken place.” Sec. 301.6404-2T(b)(1),
Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13,
1987).4 Therefore, as a prerequisite to our reviewing the
Commissioner’s failure to abate an assessment of interest on a
deficiency, the taxpayer must show that such assessment is
attributable to some error or delay by an employee of the Service
in performing a ministerial act. See sec. 6401(e)(1). Moreover,
pursuant to the specific language of the last sentence of section
6404(e)(1), any such error or delay must be disregarded unless it
occurred after the taxpayer was first contacted in writing about
the deficiency. Since, with respect to the assessment of
interest on a deficiency, the Secretary’s authority is to abate
the portion of the interest assessment attributable to such error
or delay, the error or delay must, of necessity, occur before the
assessment of the interest on the deficiency. See sec.
6404(e)(1). Therefore, for each taxable year for which the
taxpayer claims the Commissioner abused his discretion in failing
to abate the assessment of interest on a deficiency, the taxpayer
must show not only the assessment of interest attributable to
4 The final regulation under sec. 6404, as issued on
Dec. 18, 1998, contains the same definition of ministerial act.
The final regulation generally applies to interest accruing on
deficiencies or payments of tax for taxable years beginning after
July 30, 1996. See sec. 301.6404-2(b)(2), Proced. & Admin. Regs.
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Last modified: May 25, 2011