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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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