Larry G. Schuster - Page 6




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          any error or delay by the Commissioner’s officers or employees in           
          performing a ministerial act; or (2) any payment of tax to the              
          extent any error or delay in such payment is attributable to such           
          officers or employees being erroneous or dilatory in performing a           
          ministerial act.7  An error or delay by the Commissioner can be             
          taken into account only if it occurs after the Commissioner has             
          contacted the taxpayer in writing with respect to the deficiency            
          or payment and if no “significant aspect” of the error or delay             
          is attributed to the taxpayer.  Sec. 6404(e)(1); Nerad v.                   
          Commissioner, T.C. Memo. 1999-376.  A “ministerial act” does not            
          involve the exercise of judgment or discretion.  Sec. 301.6404-             
          2T(b)(1), Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163              
          (Aug. 13, 1987).  It is a procedural or mechanical act that                 
          occurs during the processing of the taxpayer’s case after all               
          prerequisites to the act, such as conferences and review by                 
          supervisors, have taken place.  See id.  Because Congress did not           
          intend for section 6404(e) to be used routinely, we order                   
          abatement only “where failure to abate interest would be widely             
          perceived as grossly unfair.”  Lee v. Commissioner, 113 T.C. 145,           
          149 (1999); H. Rept. 99-426, at 844 (1985), 1986-3 C.B. (Vol. 2)            


               7In 1996, sec. 6404(e)(1) was amended by the Taxpayer Bill             
          of Rights 2, Pub. L. 104-168, sec. 301, 110 Stat. 1452, 1457                
          (1996), to allow the Commissioner to abate interest for an                  
          “unreasonable” error or delay resulting from “managerial” and               
          ministerial acts.  The amendment is in effect for tax years                 
          beginning after July 30, 1996, and thus is not applicable in this           
          case.  See Woodral v. Commissioner, 112 T.C. 19, 25 n.8 (1999).             




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