John G. Goettee, Jr. and Marian Goettee - Page 44




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          respondent’s priority structure, coupled with the heavy demands             
          placed on Rowland’s time, contributed to respondent’s inaction in           
          petitioners’ case during the bulk of the first period.                      
               Section 301.6404-2T(b)(1), Temporary Proced. & Admin. Regs.,           
          supra, provides that “The term ‘ministerial act’ means a                    
          procedural or mechanical act that does not involve the exercise             
          of judgment or discretion”. (Emphasis added.)  Examples (4) and             
          (5) in section 301.6404-2T(b)(2), Temporary Proced. & Admin.                
          Regs., supra, make it plain that, ordinarily, the making of                 
          decisions about how to prioritize cases constitutes the exercise            
          of judgment or discretion.                                                  
               We conclude that Rowland’s delay in beginning to process               
          petitioners’ response to the settlement offer is properly                   
          attributable to respondent’s reasonable prioritization decisions,           
          and thus is not attributable to error or delay in performing a              
          ministerial act.                                                            
               Once Rowland began to process petitioners’ response, her               
          actions included the accomplishment of prerequisites (matching              
          petitioners’ verification materials to the amounts claimed on               
          their tax returns, determining that petitioners were not involved           
          in a shelter other than TEA for the relevant years) and the                 
          ministerial act of computing the amounts of the deficiencies and            
          additions to tax.  It does not appear that there was any delay in           
          preparing the settlement documents and mailing them to                      






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