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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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Last modified: May 25, 2011