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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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