John M. Mekulsia - Page 25

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          the audits hindered the audit process.  The record also                     
          establishes that respondent believed the partnerships were                  
          abusive tax shelters.  Such delay in completing an examination              
          because of the difficulties in obtaining documentation or because           
          of the Commissioner’s suspicion of fraud does not prove that the            
          Commissioner was erroneous or dilatory in performing ministerial            
          acts.  Banat v. Commissioner, supra.  Accordingly, issuing the              
          FPAAs after 1987 was not a delay in performing a ministerial act.           
               Petitioner’s second claim alleges that the audits of SGE for           
          1985 and 1986 were so replete with errors that the audits had to            
          be completely redone.  Petitioner asserts that four of                      
          respondent’s agents were assigned to District Counsel in August             
          1990 to reaudit SGE for 1985 and 1986.                                      
               While the parties have stipulated that the four agents were            
          assigned to District Counsel to assist in trial preparation of              
          the Hoyt investor partnerships docketed Tax Court cases for the             
          1980 through 1986 taxable years, petitioner argues that the                 
          agents’ work was not limited to trial preparation and appeared to           
          be work traditionally done at the audit stage.  Petitioner                  
          concludes that the existence of the “second” audit is “sufficient           
          evidence that the first audit was replete with errors.”                     
          Petitioner’s conclusion is without merit.  His argument fails to            
          specify an error or delay in performing a ministerial act.                  

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