Robert B. Kemp, Jr. - Page 11

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          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             

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