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(1) any delays petitioners identified are respondent’s delays in
performing a ministerial act, and (2) respondent’s failure to
abate interest for any period constitutes an abuse of discretion.
Section 6404(e) does not define the term “ministerial act”.
Lee v. Commissioner, 113 T.C. 145, 149 (1999). The governing
regulation13 defines the term to mean a procedural or mechanical
13 Sec. 301.6404-2T(b), Temporary Proced. & Admin. Regs.,
52 Fed. Reg. 30163 (Aug. 13, 1987), provides as follows:
Sec. 301.6404-2T Definition of ministerial act (temporary).
(b) Ministerial act--(1) Definition. 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 prerequsites 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.
(2) Examples. The definition of ministerial act may be
illustrated by the following examples.
Example (1). A taxpayer moves from one state to another
before the Internal Revenue Service selects the taxpayer’s
income tax return for examination. A letter explaining that
the return has been selected for examination is sent to the
taxpayer’s old address and then forwarded to the new
address. The taxpayer timely responds, asking that the
audit be transferred to the Service’s district office that
is nearest the new address. The group manager approves the
request. After the request for transfer has been approved,
the transfer of the case is a ministerial act. The
Commissioner may (in his or her discretion) abate interest
attributable to a delay in transferring the case.
Example (2). An examination of a taxpayer’s income tax
return reveals a deficiency with respect to which a notice
of deficiency will be issued. After the taxpayer and the
Internal Revenue Service have identified all agreed and
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