John M. Mekulsia - Page 19

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          officer’s or employee’s being erroneous or dilatory in performing           
          a ministerial act.7                                                         
               A ministerial error or delay by an officer or employee                 
          (without distinction, employee) of the IRS is taken into account            
          only if no significant aspect of the error or delay can be                  
          attributed to the taxpayer.  Sec. 6404(e)(1).  In addition, only            
          errors or delays occurring after the IRS has initially contacted            
          the taxpayer in writing with respect to the deficiency or payment           
          are taken into account.  Id.  Thus, abatement of interest for the           
          period between the date the tax return is filed and the date the            
          Commissioner commences an audit is not permitted under section              
          6404(e).  Sims v. Commissioner, T.C. Memo. 1999-414 (citing H.              
          Rept. 99-426, at 844 (1985), 1986-3 C.B. (Vol. 2) 1, 844).                  
               The temporary regulations interpreting section 6404(e)                 
          define the term “ministerial act” as “a procedural or mechanical            
          act that does not involve the exercise of judgment or discretion,           
          and that occurs during the processing of a taxpayer’s case after            
          all prerequisites to the act, such as conferences and review by             
          supervisors, have taken place.”  Sec. 301.6404-2T(b)(1),                    
          Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13,              

               7  Sec. 6404(e) was amended by TBOR 2 sec. 301(a)(1) and               
          (2), 110 Stat. 1457, 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.  Accordingly, the amendment is               
          inapplicable in the present case.                                           

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