Robert B. Kemp, Jr. - Page 12

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          assessment of the supporting evidence.  Moreover, while                     
          petitioner’s 1992 and 1993 taxable years had been the subject of            
          an examination that proposed civil fraud penalties before the               
          cessation of civil action, the 1989 and 1990 taxable years had              
          not, insofar as the record discloses.  Thus, the decision to                
          assert fraud in the October 1999 notice necessarily involved a              
          review of the evidence of fraud and the exercise of judgment, the           
          antithesis of a ministerial act.8                                           
               Accordingly, we conclude that petitioner has failed to                 
          demonstrate any error or delay in the performance of a                      
          ministerial act before the issuance of the October 4, 1999 notice           
          of deficiency.9                                                             



               8 As for petitioner’s contention that respondent’s decision            
          to assert fraud for 1989 and 1990 was a “litigation tactic” that,           
          if allowed to give rise to interest, “would be widely perceived             
          as grossly unfair”, we note that petitioner did not even attempt            
          to dispute the fraud penalties in this Court.  In any event,                
          perceptions of gross unfairness come into play only once an error           
          or delay in the performance of a ministerial act has been                   
          established.                                                                
               9 In light of our conclusion that petitioner has failed to             
          identify any ministerial error or delay prior to the issuance of            
          the Oct. 4, 1999 notice of deficiency, we need not decide whether           
          the Aug. 3, 1998 letter petitioner received from respondent was a           
          contact in writing with respect to 1989 for purposes of sec.                
          6404(e)(1).  Moreover, petitioner has not alleged, nor is there             
          any evidence, that any contact in writing with respect to the               
          deficiencies for 1989 or 1990 occurred in connection with the               
          development of the criminal action against petitioner.  We                  
          accordingly express no view concerning whether a written contact            
          in connection with a criminal referral may constitute a contact             
          in writing for purposes of sec. 6404(e)(1).                                 




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