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For purposes of the preceding sentence, an
error or delay shall be taken into account
only if no significant aspect of such error
or delay can be attributed to the taxpayer
involved, and after the Internal Revenue
Service has contacted the taxpayer in writing
with respect to such deficiency or payment.
The deficiency or payment, therefore, must be attributable to
an error or delay by an officer or employee (employee) of the
IRS in the performance of a ministerial act. Id.
Temporary regulations interpreting section 6404(e) define
the term “ministerial act” as “a procedural or mechanical act
that does not involve the exercise of judgment or discretion,
and 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., 52 Fed. Reg. 30163
(Aug. 13, 1987).3 A decision concerning the proper application
of Federal tax law, or other Federal or State law, is not a
ministerial act. Id.
Congress intended for the Commissioner to abate interest
“where failure to abate interest would be widely perceived as
grossly unfair.” H. Rept. 99-426, at 844 (1985), 1986-3 C.B.
3 Final regulations under sec. 6404, issued in 1998 and
generally applicable to interest accruing on deficiencies or
payments of tax for taxable years beginning after July 30, 1996,
provide the same definition of ministerial act. Sec. 301.6404-
2(b)(2), Proced. & Admin. Regs.
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