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Under preamendment section 6404(e),2 the Commissioner "may
abate the assessment of interest on any payment of tax to the
extent that any error or delay in payment is attributable to an
officer or employee of the IRS being erroneous or dilatory in
performing a ministerial act." Lee v. Commissioner, supra at
148. A ministerial act does not include a "decision concerning
the proper application of federal tax law (or other federal or
state law)". Sec. 301.6404-2(b)(2), Proced. & Admin. Regs.
An error or delay by the Commissioner can be taken into
account only if: (1) It occurs after the Commissioner has
contacted the taxpayer in writing with respect to the deficiency,
and (2) no significant aspect of the error or delay is
attributable to the taxpayer. See sec. 6404(e)(1); Krugman v.
Commissioner, 112 T.C. 230, 239 (1999); Hawksley v. Commissioner,
T.C. Memo. 2000-354. Section 6404(e)(1) "does not therefore
permit the abatement of interest for the period of time between
the date the taxpayer files a return and the date the IRS
commences an audit, regardless of the length of that time
2Sec. 6404(e) was amended under sec. 301 of the Taxpayer
Bill of Rights 2, Pub. L. 104-168, 110 Stat. 1457 (1996), to
permit the Secretary to abate interest with respect to an
"unreasonable" error or delay resulting from "managerial" and
ministerial acts. This amendment, however, applies to interest
accruing with respect to deficiencies or payments of tax for
years beginning after July 30, 1996; therefore, the amendment is
inapplicable to the case at bar. See Woodral v. Commissioner,
112 T.C. 19, 25 n.8 (1999).
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Last modified: May 25, 2011