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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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