John M. Mekulsia - Page 20

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          1987).8  “A ministerial act is a nondiscretionary procedural act            
          that the Commissioner is required to perform.”  Camerato v.                 
          Commissioner, T.C. Memo. 2002-28.  In contrast, acts that either            
          are managerial or arise out of general administrative decisions             
          are not ministerial.  Id.  “Abatement is not available for                  
          managerial acts during the tax years at question and has never              
          been available for actions or nonactions attributable to general            
          administrative decisions.”  Id.  Further, a decision concerning             
          the proper application of Federal tax law, or other applicable              
          Federal or State laws, is not a ministerial act.  See sec.                  
          301.6404-2T(b)(1), Temporary Proced. & Admin. Regs., supra.                 
               Even where errors or delays are present, the Commissioner’s            
          decision to abate interest remains discretionary.  See sec.                 
          6404(e)(1).  When Congress enacted section 6404(e), it did not              
          intend the provision to be used routinely to avoid payment of               
          interest.  Rather, Congress intended abatement of interest to be            
          used sparingly, only where failure to do so “would be widely                

               8  The final regulations under sec. 6404, as issued on Dec.            
          18, 1998, contain the same definition of ministerial act.  See              
          sec. 301.6404-2(b)(2), Proced. & Admin. Regs.  The final                    
          regulations generally apply to interest accruing on 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.  Accordingly, as the final regulations are           
          inapplicable in the present case, sec. 301.6404-2T, Temporary               
          Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987),                 
          effective for taxable years beginning after Dec. 31, 1978, but              
          before July 30, 1996, applies.  See sec. 301.6404-2T(c),                    
          Temporary Proced. & Admin. Regs, supra.                                     

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