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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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