Billye S. Cannon - Page 7




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          delay in payment of her 1990 Federal income tax liability is                
          attributable to anything other than her own conduct.  She                   
          certainly has not demonstrated that the delay is attributable to            
          an official or employee of respondent being erroneous or dilatory           
          in performing a ministerial act.  To the extent that petitioner             
          suggests that the relevant “delay” is measured by the time it               
          took for respondent to resolve the dispute involving her                    
          employment status, we note that the determination of employee               
          status involves the exercise of judgment and the proper                     
          application of Federal tax and common law.  Sec. 3121(d); Ewens             
          and Miller, Inc. v. Commissioner, 117 T.C. 263 (2001).  As such,            
          it is not a ministerial act and cannot provide the requisite                
          basis for abating interest under section 6404(e).  Sec. 301.6404-           
          2T(b)(1), Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163              
          (Aug. 13, 1987).                                                            
               As we view the matter, the interest that accrued on                    
          petitioner’s 1990 Federal income tax as a result of any delay in            
          the payment of that tax is, simply put, attributable to her                 
          failure, for financial or other undisclosed reasons, to pay such            
          tax when due.  Consequently, petitioner is not entitled to an               
          abatement of interest under section 6404 with respect to her 1990           
          Federal income tax.  It follows that respondent’s failure to                
          abate such interest is not an abuse of discretion.                          








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