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Examples (4) and (5) of section 301.6404-2T(b)(2), Temporary
Proced. & Admin. Regs., supra, show that assigning priorities in
the processing of work can constitute the exercise of judgment
and discretion. We have found that Winkler gave priority to
working on cases calendared for trial by the Court. If the 3-
month delay in Winkler’s signing the stipulation was attributable
to this prioritizing, then it would appear that, under the
regulation, Winkler was not “dilatory in performing a ministerial
act.” Sec. 301.6404-2T(a)(final flush language), Temporary
Proced. & Admin. Regs., supra. Under these circumstances,
abatement of interest for this 3-month period would not be
authorized under the statute and the regulation.
We have not found, and respondent does not direct our
attention to, any evidence in the record herein that the 3-month
delay (or any part thereof) was in fact properly attributable to
Winkler’s prioritizing. Nevertheless, in the last brief filed in
the instant case, respondent concedes “that an abatement of
interest, for the period from February 25, 1995 through April 25,
1995, should be allowed to petitioners in the unusual
circumstances of this case.” Respondent does not explain why
this concession is made, nor why the concession period begins on
February 25, 1995. We have not identified from the record herein
any event on or about February 25, 1995, that might be relevant
to a conclusion that a section 6404 status had changed. Compare
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