John B. Cosgriff - Page 7

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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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