Robert B. Kemp, Jr. - Page 10

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          penalties by August 1995.  In so contending, petitioner claims to           
          fall within section 301.6404-2T, Example (2), Temporary Proced. &           
          Admin. Regs., supra.7  The example provides that, where an                  
          examination of a taxpayer’s return has revealed a deficiency, the           
          issuance of a notice of deficiency is a ministerial act “After              
          the taxpayer and the Internal Revenue Service have identified all           
          agreed and unagreed issues, the notice has been prepared and                
          reviewed (including review by District Counsel, if necessary) and           
          any other relevant prerequisites have been completed”.  Id.                 
          Petitioner’s 1989 amended return, reporting the previously                  
          unreported income upon which the fraud penalty was based, had not           
          even been submitted to respondent in August 1995.  It was not               
          submitted until July or August 1996, by which time civil action             
          for the years 1989 through 1993 had been suspended.                         
               While petitioner’s amended return for 1990 had been                    
          submitted in February 1995, before the suspension of civil                  
          action, petitioner has not shown that a notice of deficiency for            
          1990 had been prepared or reviewed, or that all other relevant              
          prerequisites for its issuance had been completed, before the               
          suspension of civil action in December 1995.  Once civil action             
          was suspended to facilitate development of the criminal case                
          against petitioner, the delay in taking actions in the civil                
          cases for 1989 and 1990, including any delay in issuing a notice            

               7 See supra note 5.                                                    

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