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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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