William B. Berry and Marjorie S. Berry - Page 14




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          “ministerial act” must involve an act “that occurs during the               
          processing of a taxpayer’s case after all prerequisites to the              
          act, such as conferences and review by supervisors, have taken              
          place.”  Sec. 301.6404-2T(b)(1), Temporary Proced. & Admin.                 
          Regs., supra.  It is clear that a decision to not extend a                  
          settlement offer to petitioners at a particular stage of an                 
          ongoing examination involving the returns of as many as 100                 
          partners was not a ministerial act.  The IRS was far from                   
          completing the prerequisite acts in late 1991 and early 1992 when           
          petitioners requested a settlement.                                         
               Second, petitioners argue that delays were caused by                   
          respondent’s failure to process the amended returns which showed            
          refunds.  There was no ministerial error in this situation                  
          either, because employees of the IRS exercised discretion in not            
          processing all of petitioners’ amended returns:  They assessed              
          the taxes shown as due on the returns, see sec. 6201(a)(1), and             
          they did not process those returns showing refunds because the              
          taxable years in issue were subject to an ongoing examination at            
          the partnership level.                                                      
               Finally, petitioners argue that delays were caused by                  
          respondent’s failure to use the most current and accurate                   
          information in making final settlement calculations.  Petitioners           
          argue that this failure was due to (a) an IRS employee, Marilyn             
          Parsonson, writing reports indicating the amount of tax due on              






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