Charles Deverna - Page 11

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               On January 8, 2002, the IRS sent to petitioner a Full                  
          Disallowance - Final Determination disallowing petitioner’s claim           
          for interest abatement.  The request for abatement was denied               
          because the IRS “did not find any errors or delays on our part              
          that merit abatement of interest in our review of available                 
          records and other information.”                                             
                                       OPINION                                        
               Under section 6404(e)(1), the Commissioner may abate the               
          assessment of interest on any deficiency if the interest is                 
          attributable to an error or delay by an officer or employee of              
          the IRS (acting in his official capacity) in performing a                   
          ministerial act.  (Amendments to section 6404(e) in 1996 do not             
          apply to this case because they apply only to interest accruing             
          with respect to deficiencies or payments for tax years beginning            
          after July 30, 1996.)  A “ministerial act” is a procedural or               
          mechanical act that does not involve the exercise of judgment or            
          discretion and that occurs during the processing of a taxpayer’s            
          case after all prerequisites to the act have taken place.  Sec.             
          301.6404-2T(b)(1), Temporary Proced. & Admin. Regs., 52 Fed. Reg.           
          30163 (Aug. 13, 1987).  The “mere passage of time” during a tax             
          dispute does not establish error or delay in performing a                   
          ministerial act.  Lee v. Commissioner, 113 T.C. 145, 150 (1999).            
          The Court may order abatement where the Commissioner abuses his             
          discretion by failing to abate interest.  Sec. 6404(h)(1).  In              






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Last modified: May 25, 2011