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Reg. 30163 (Aug. 13, 1987). Mr. Koniarski’s decision whether and
when to work on the Blue Gem case involved the exercise of
judgment based on an evaluation of his entire caseload and his
workload priorities. As unfortunate as his decision may have
been in hindsight, it did not involve the erroneous or dilatory
performance of a ministerial act.13
October 23, 1995, Through August 1997
From October 23, 1995, through August 1997, we are satisfied
that Appeals Officer Koniarski and other IRS employees were
working steadily on the Blue Gem case to bring the matter to a
close. Beginning October 23, 1995, Mr. Koniarski prepared the
proposed FPAA’s and other related documents to be issued to Blue
Gem and its partners. Following appropriate review by
supervisory personnel in the New York City Appeals Office, the
FPAA’s were issued on January 16, 1996. On June 16, 1996, the
Blue Gem case was defaulted after the TMP and the notice partners
failed to file a timely petition in the Tax Court or any other
appropriate court. The default package was then prepared and
13The sparse record of activity by the IRS in the Blue Gem
case during the period from Mar. 14, 1990, through Oct. 22, 1995,
is difficult to justify. Because an unlimited consent extending
the period of limitations on assessment was executed on behalf of
Blue Gem, no time pressure was placed on the IRS to complete its
consideration of the Blue Gem case. And, because neither the
Blue Gem TMP nor an authorized representative of Blue Gem was
involved in the Blue Gem administrative appeal, there was no one
in a position of authority with respect to Blue Gem to press for
a resolution.
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