John G. Goettee, Jr. and Marian Goettee - Page 40




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          supervisors, have taken place.  Sec. 301.6404-2T(b)(1), Temporary           
          Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987).14               
          The regulation further provides that a decision concerning the              
          proper application of Federal tax law is not a ministerial act.             
          Id.                                                                         
               The definition of “ministerial act” in the governing                   
          regulation closely tracks the legislative history relating to               
          section 6404(e).  See Lee v. Commissioner, 113 T.C. at 149-150              
          (setting forth portions of the legislative history of section               
          6404(e) relating to the definition of “ministerial act”); see               



               14    Sec. 6232(a) of the Technical and Miscellaneous                  
          Revenue Act of 1988 (TAMRA 1988), Pub. L. 100-647, 102 Stat.                
          3342, 3734-3735, added subsec. (e) to sec. 7805.  Sec. 7805(e)(2)           
          provides that “Any temporary regulation shall expire within 3               
          years after the date of issuance of such regulation.”  Sec.                 
          7805(e)(2) applies to any temporary regulation issued after Nov.            
          20, 1988.  TAMRA 1988 sec. 6232(b), 102 Stat. at 3735.  The                 
          regulation herein involved was issued before Nov. 20, 1988, and             
          thus the “sunset” provision of sec. 7805(e)(2) does not apply to            
          this regulation.                                                            
               The final regulations under sec. 6404 were issued on Dec.              
          18, 1998.  The final regulations generally apply to interest                
          accruing on deficiencies or payments of tax described in sec.               
          6212(a) for tax years beginning after July 30, 1996.  See sec.              
          301.6404-2(d)(1), Proced. & Admin. Regs.  Accordingly, the final            
          regulations are inapplicable to the instant case, and sec.                  
          301.6404-2T, Temporary Proced. & Admin. Regs., supra, effective             
          for taxable years beginning after Dec. 31, 1978, but before July            
          30, 1996, does apply.  See sec. 301.6404-2T(c), Temporary Proced.           
          & Admin. Regs., supra.                                                      
               We agree with petitioners that the temporary regulation                
          applies to the instant case; we disagree with respondent’s                  
          statements on brief that the final regulations are “the                     
          applicable regulations”.                                                    





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