Kin Sang Chan - Page 17




                                       - 17 -                                         
          proper application of Federal tax law and thus is not a                     
          ministerial act.  Sec. 301.6404-2T(b)(1), Temporary Proced. &               
          Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987).                           
               Even if Mr. Matos simply followed his supervisor’s                     
          instructions when he ultimately applied the personal holding                
          company provisions to KSCI and treated it as a C corporation,               
          the decision by the supervisor to apply those provisions to                 
          KSCI was not a procedural or mechanical act.  The decision                  
          required the exercise of judgment and application of the law as             
          evidenced by the supervisor’s several requests recorded in the              
          activity record in KSCI’s underlying case that Mr. Matos                    
          research the personal holding company rules.                                
               Assuming arguendo that the treatment of KSCI as a personal             
          holding company was a ministerial act, the assessment of                    
          interest in this case was not attributable to that act.  The                
          interest at issue was assessed on a deficiency resulting from               
          petitioner’s failure to report capital gains and dividend                   

               4(...continued)                                                        
          accumulated earnings and profits to lose their S corporation                
          status and be treated as C corporations.  The examining agent               
          here applied the personal holding company provisions to KSCI as             
          if the provisions operated in like manner to sec. 1362(d)(3) to             
          terminate a corporation’s valid election to be treated as an S              
          corporation.  We note that former sec. 1372(e)(5) as originally             
          enacted in 1958 provided for the termination of S corporation               
          status if the corporation had passive investment income as                  
          defined in sec. 1372(e)(5).                                                 








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