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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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