Thomas R. Camerato - Page 10




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               Interest abatement is not a routine matter; the taxpayer has           
          had the use of the unpaid taxes, and the Treasury has not had the           
          use of the taxes to which it was entitled.  As we recently                  
          observed in Smith v. Commissioner, T.C. Memo. 2002-1, quoting the           
          legislative history:                                                        
               Section 6404(e) is not intended to be “used routinely                  
               to avoid payment of interest”, but rather is to be                     
               “utilized in instances where failure to abate interest                 
               would be widely perceived as grossly unfair.”  H. Rept.                
               99-426, at 844 (1985), 1986-3 C.B. (Vol. 2) 1, 844; S.                 
               Rept. 99-313, at 208 (1985), 1986-3 C.B. (Vol. 3) 1,                   
               208.                                                                   
               A ministerial act is a nondiscretionary procedural act that            
          the Commissioner is required to perform.  According to the                  
          legislative history:                                                        
               The committee intends that the term "ministerial act"                  
               be limited to nondiscretionary acts where all of the                   
               preliminary prerequisites, such as conferencing and                    
               review by supervisors, have taken place.  Thus, a                      
               ministerial act is a procedural action, not a decision                 
               in a substantive area of tax law.  For example, a delay                
               in the issuance of a statutory notice of deficiency                    
               after the IRS and the taxpayer have completed efforts                  
               to resolve the matter could be grounds for abatement of                
               interest. The IRS may define a ministerial act in                      
               regulations. [S. Rept. 99-313, supra at 209, 1986-3                    
               C.B. (Vol. 3) at 209; emphasis added.]                                 
          Similarly, the temporary regulations provide:                               
               The term "ministerial act" means 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.  A decision concerning                  
               the proper application of federal tax law (or other                    
               federal or state law) is not a ministerial act. [Sec.                  






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