John M. Mekulsia - Page 24

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               Determining the precise date on which to issue an FPAA                 
          requires the exercise of judgment and discretion on the                     
          Commissioner’s part.  The Commissioner’s determination of when to           
          issue an FPAA depends on various factors, including but not                 
          limited to:  (1) The nature and persuasiveness of the evidence              
          gathered during the examination; (2) the level of cooperation               
          received from the taxpayer; (3) the legitimacy of the information           
          received during the examination; (4) the likelihood of obtaining            
          additional evidence from other sources; (5) the impact of                   
          recently decided litigation dealing with similar issues; (6) the            
          impact of a criminal tax investigation involving the taxpayer;              
          (7) the recommendations set forth in the examiner’s Report                  
          Transmittal; and (8) an overall evaluation of the evidence to               
          determine whether the record supports the adjustments.                      
          Accordingly, respondent’s determination of when to issue the                
          FPAAs was not a ministerial act.  See sec. 301.6404-2T(b)(1),               
          Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13,              
          1987).  Respondent’s decision of how and when to work on these              
          cases, based on an evaluation of his entire caseload and his                
          workload priorities, was not a ministerial act.  See Jean v.                
          Commissioner, T.C. Memo. 2002-256.                                          
               Contrary to petitioner’s claim that respondent had all the             
          records sufficient to issue the FPAAs in 1987, the facts reveal             
          that respondent’s difficulty in obtaining accurate records during           

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