Donald B. Hawksley - Page 18




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          interest.  See sec. 6404(i), formerly sec. 6404(g).  In order to            
          demonstrate an abuse of discretion, a taxpayer must prove that              
          the Commissioner exercised his discretion arbitrarily,                      
          capriciously, or without sound basis in fact or law.  See Rule              
          142(a); Lee v. Commissioner, 113 T.C. 145, 149 (1999); Woodral v.           
          Commissioner, 112 T.C. 19, 23 (1999).13                                     
               The Commissioner has authority to abate, in whole or in                
          part, an assessment of interest on a deficiency if the accrual of           
          such interest is attributable to an error or delay by an officer            
          or employee of the Internal Revenue Service, acting in his or her           
          official capacity, in performing a ministerial act.  See sec.               
          6404(e)(1).14  An error or delay by the Commissioner can be taken           
          into account only (1) If it occurs after the Commissioner has               
          contacted the taxpayer in writing with respect to the deficiency            



               13  Sec. 7491(a) serves to shift the burden of proof if,               
          inter alia, the taxpayer introduces credible evidence with                  
          respect to any factual issue relevant to ascertaining the                   
          liability of the taxpayer for any tax imposed by subtitle A or B.           
          In general, interest is treated as tax.  See sec. 6601(e)(1).               
          However, interest on an underpayment of tax is imposed by sec.              
          6601, which is part of subtitle F.  Accordingly, sec. 7491(a)               
          does not apply to the present case.                                         
               14  Sec. 6404(e) was amended in 1996 by the Taxpayer Bill of           
          Rights 2, Pub. L. 104-168, sec. 301, 110 Stat. 1452, 1457 (1996),           
          to permit the Commissioner to abate interest with respect to an             
          “unreasonable” error or delay resulting from “managerial” or                
          ministerial acts.  The amendment applies to interest accruing               
          with respect to deficiencies for taxable years beginning after              
          July 30, 1996; accordingly, the amendment is inapplicable to the            
          present case.  See Woodral v. Commissioner, 112 T.C. 19, 25 n.8             
          (1999).                                                                     





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