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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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