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Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987).3 It
is a procedural or mechanical act that occurs during the
processing of the taxpayer’s case after all prerequisites to the
act, such as conferences and review by supervisors, have taken
place. See id. The mere passage of time does not establish
error or delay in performing a ministerial act. See Lee v.
Commissioner, supra at 150.
For purposes of section 6404(e), an error or delay cannot be
considered for the period before September 12, 1994, because that
is when respondent first contacted petitioner in writing
regarding the deficiency. See sec. 6404(e)(1); Nerad v.
Commissioner, supra. Petitioner argues that respondent
incorrectly determined his income tax liabilities for 1992 and
that respondent failed to timely answer his correspondence or
meet with him. Regardless of whether respondent correctly
determined petitioner’s 1992 income tax liabilities, “A decision
concerning the proper application of federal tax law (or other
federal or state law) is not a ministerial act.” Sec. 301.6404-
2T(b)(1), Temporary Proced. & Admin. Regs., supra. Although
petitioner contacted respondent numerous times in connection with
his 1992 return, the evidence in the record shows that respondent
replied to petitioner’s correspondence in a timely manner that
3On Dec. 18, 1998, the final regulation under sec. 6404 was
issued. “Ministerial act” is defined in the same manner in the
final regulation as in the temporary regulation.
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