Raymond M. and Joy D. Jean - Page 11




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          Petitioners fail to identify any ministerial act performed by               
          respondent which delayed the resolution of their case.  As                  
          discussed above, respondent has discretion to abate interest for            
          an error or delay resulting only from a ministerial act performed           
          by his employees.  By definition, a ministerial act is one that             
          is procedural or mechanical; it does not involve the exercise of            
          judgment or discretion.  Lee v. Commissioner, 113 T.C. 145                  
          (1999).  Respondent’s decision of how and when to work on a case,           
          based on an evaluation of his entire caseload and his workload              
          priorities, is not a ministerial act.  Strang v. Commissioner,              
          T.C. Memo. 2001-104; Leffert v. Commissioner, T.C. Memo. 2001-23.           
          Petitioners have failed to demonstrate that any delay was due to            
          a ministerial act.                                                          
               In fact, the record demonstrates that respondent performed             
          substantial work on petitioners’ case during this second period.            
          After petitioners’ case was processed by respondent’s appellate             
          division, it was returned to the audit branch.  Petitioners                 
          requested a transfer of their case to a different Revenue agent.            
          Respondent capitulated and on November 6, 1997, he transferred              
          the case to Agent Clarke.  On December 10, 1997, Agent Clarke               
          sent petitioners a letter detailing the return of the case from             
          the Appeals Division and its assignment to him.9  On January 21,            


               9The letter requested petitioners to contact Agent Clarke to           
          schedule a conference regarding their case, identifying the NOL             






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