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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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