- 11 -
of deficiency, during the period in which the criminal case was
pending, was not a delay in the performance of a ministerial act.
See Taylor v. Commissioner, 113 T.C. 206, 213 (1999), affd. 9
Fed. Appx. 700 (9th Cir. 2001). The decision to defer civil
proceedings until resolution of the criminal aspects of a case is
an exercise of judgment, not a ministerial act. Id. Thus, there
was no delay in the performance of a ministerial act with respect
to the fraud penalties for 1989 and 1990 through the period that
petitioner’s criminal case was pending; that is, from the
cessation of civil action in December 1995 until the July 6, 1998
affirmance of petitioner’s conviction became final.
As for the period between the time that petitioner’s
conviction became final and the October 4, 1999 issuance of the
notice of deficiency determining the 1989 and 1990 fraud
penalties, petitioner points to no specific ministerial act that
was improperly delayed, other than the issuance of the notice
itself. As with the period preceding cessation of civil action,
however, petitioner has not shown that all of the necessary
review and exercise of judgment that underlay the decision to
assert fraud had been completed at this time. In this regard,
petitioner’s convictions under section 7206(1) for 1989 and 1990
had no preclusive effect with respect to whether he committed
civil fraud in those years. See Wright v. Commissioner, 84 T.C.
636 (1985). Thus, a decision to assert civil fraud required an
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011