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Respondent suspended his activity with respect to the
Swanton programs from April 1984 until the period of limitations
for criminal prosecution of Mr. Swanton expired because Mr.
Swanton was being criminally investigated by DOJ. We have
previously held that the delay of a civil matter until resolution
of related criminal proceedings is reasonable. Taylor v.
Commissioner, 113 T.C. 206, 212 (1999), affd. 9 Fed. Appx. 700
(9th Cir. 2001). After the criminal investigation of Mr. Swanton
ended, litigation in this Court for the pre-TEFRA Swanton
programs continued until September 1992. See Smith v.
Commissioner, 92 T.C. 1349 (1989); Kelley v. Commissioner, T.C.
Memo. 1993-495. The mere passing of time during the litigation
phase of a tax dispute does not establish error or delay by the
Commissioner in performing a ministerial act, because decisions
about how to proceed in the litigation phase of a case
necessarily involve discretion. Lee v. Commissioner, 113 T.C. at
150. We therefore conclude, as this Court did in Beagles v.
Commissioner, supra, that it was not an abuse of discretion for
respondent to deny abatement of interest for the period April 15,
1984, through May 8, 1992.
Beagles v. Commissioner, supra, does not provide us with
guidance for periods after May 8, 1992, because in that case the
Commissioner granted interest abatement to the taxpayer for the
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