Nicholas J. and Diane L. Palihnich - Page 12

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          disagree.  First, we believe that the loss of a taxpayer’s return           
          is a ministerial act under the applicable version of section                
          6404(e)(1).  See supra note 2.  The loss of a taxpayer’s records            
          or returns does not require the exercise of judgment or                     
          discretion.  Sec. 301.6404-2T(b)(1), Temporary Proced. & Admin.             
          Regs., supra.  Second, as respondent acknowledges, Example (6)              
          applies only to interest accruing with respect to deficiencies              
          for tax years beginning after July 30, 1996.  We conclude that              
          respondent’s loss of petitioners’ 1981-82 amended returns was a             
          ministerial act for purposes of section 6404(e).                            
          D.   Whether Petitioners’ Delay in Paying Their Tax for 1980 Is             
               Attributable to Respondent’s Loss of Petitioners’ 1981-82              
               Amended Returns                                                        
               Respondent contends that petitioners’ delay in paying their            
          1980 tax from May 1987 to March 1998 is not attributable to                 
          respondent’s loss of petitioners’ 1981-82 amended returns.  We              
          disagree.                                                                   
               The term “attributable to” means due to, caused by, or                 
          generated by.  Lawinger v. Commissioner, 103 T.C. 428, 435                  
          (1994).  The record shows that petitioners’ delay in paying the             
          1980 tax is attributable to respondent’s loss of their 1981-82              
          amended returns.  The NOLs claimed on petitioners’ 1981-82                  
          amended returns plus their $76,000 payment for 1982 eliminated              
          their liabilities for 1981 and 1982.  If those returns had been             
          timely processed in 1987, $33,000 in overpayments from 1985-87              






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