William and Penny Landvogt - Page 8

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                                       OPINION                                        
               Under section 6404(e)(1), the Commissioner may abate part or           
          all of an assessment of interest on any deficiency or payment of            
          income tax to the extent that any error or delay in payment is              
          attributable to erroneous or dilatory performance of a                      
          ministerial act by an officer or employee of the IRS.4  A                   
          ministerial act means a procedural or mechanical act that does              
          not involve the exercise of judgment or discretion and occurs               
          during the processing of a taxpayer’s case after all the                    
          prerequisites to the act, such as conferences and review by                 
          supervisors, have taken place.  See Lee v. Commissioner, 113 T.C.           
          145 (1999); sec. 301.6404-2T(b)(1), Temporary Proced. & Admin.              
          Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987).5  In contrast, a                 
          decision concerning the proper application of Federal tax law, or           
          other applicable Federal or State laws, is not a ministerial act.           

               4Sec. 6404(e) was amended by the Taxpayer Bill of Rights 2,            
          Pub. L. 104-168, sec. 301(a)(1) and (2), 110 Stat. 1457 (1996),             
          to permit the Commissioner to abate interest with respect to an             
          “unreasonable” error or delay resulting from “managerial” or                
          ministerial acts.  The amendment applies to interest accruing               
          with respect to deficiencies for taxable years beginning after              
          July 30, 1996, and is inapplicable to the instant case.                     
               5The final regulations under sec. 6404 were issued on Dec.             
          18, 1998, and generally apply to interest accruing with respect             
          to deficiencies or payments of tax described in sec. 6212(a) for            
          taxable years beginning after July 30, 1996.  See sec. 301.6404-            
          2(d)(1), Proced. & Admin. Regs.  As a result, sec. 301.6404-2T,             
          Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13,              
          1987), applies and is effective for interest accruing with                  
          respect to deficiencies for those taxable years beginning after             
          Dec. 31, 1978, but before July 30, 1996.  See id. at par. (c).              





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