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has contacted the taxpayer in writing with respect to the payment
and (2) if no significant aspect of the error or delay is
attributable to the taxpayer. See sec. 6404(e)(1); Krugman v.
Commissioner, 112 T.C. 230, 239 (1999); Nerad v. Commissioner,
T.C. Memo. 1999-376.
Congress did not intend for section 6404(e) to be used
routinely. Accordingly, we order abatement only “where failure
to abate interest would be widely perceived as grossly unfair.”
In order for petitioners to prevail, there must be an error
or delay in payment that is attributable to respondent’s being
erroneous or dilatory in performing a ministerial act.12 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). Rather, a ministerial
act means a procedural or mechanical act 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. See id. Examples of ministerial acts are provided in the
regulations. See sec. 301.6404-2T(b)(2), Temporary Proced. &
Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987). In contrast, a
decision concerning the proper application of Federal tax law, or
12 Further, an abatement of interest “only applies to the
period of time attributable to the failure to perform the
ministerial act.” H. Rept. 99-426, at 844 (1985), 1986-3 C.B.
(Vol. 2) 1, 844; S. Rept. 99-313, at 208 (1986), 1986-3 C.B.
(Vol. 3) 1, 208.
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