Kenneth D. Hanks - Page 6




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          abatement of interest for the period of time between the date a             
          taxpayer files a return and the date respondent commences an                
          audit is not permitted under section 6404(e).  Sims v.                      
          Commissioner, T.C. Memo. 1999-414 (quoting H. Rept. 99-426, at              
          844 (1985), 1986-3 C.B. (Vol. 2) 844).                                      
               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).  A decision concerning the proper application of law,                
          either Federal or state, is not a ministerial act.  Id.                     
               Petitioner has not taken the position that his claim for               
          abatement of interest is based on the assessment of a deficiency            
          attributable to any error or delay by an officer or employee of             
          the IRS in performing a ministerial act.  See sec. 6404(e)(1)(A).           
          The Court will thus consider whether an officer or employee of              
          the IRS committed any error or delay in performing a ministerial            
          act which resulted in an assessment of interest on any payment              
          with respect to petitioner's 1990 and 1991 tax years.  See sec.             
          6404(e)(1)(B).                                                              
               In a letter attached to his request for abatement, and at              
          trial, petitioner's primary complaint seemed directed at the                




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