Robert Lee McElroy, Jr. - Page 3

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          request.  Petitioner owed $813.40 in accrued interest and an                
          $8.21 penalty for failure to pay the interest when demanded, and            
          respondent offset $821.61 of petitioner’s 2000 tax refund to                
          satisfy this liability.                                                     
          Discussion                                                                  
               If the Commissioner abuses his discretion in failing to                
          abate interest under section 6404, this Court may order an                  
          abatement.  Sec. 6404(h)(1).  In order to prevail, a taxpayer               
          must prove that the Commissioner exercised this discretion                  
          arbitrarily, capriciously, or without sound basis in fact or law.           
          Woodral v. Commissioner, 112 T.C. 19, 23 (1999).  On brief,                 
          petitioner states that respondent did not notify him of the                 
          section 72(t) additional tax until 2-1/2 years after his 1995               
          Federal income tax return was filed.  Accordingly, petitioner               
          appears to rely upon section 6404(e)(1) and (g)(1).                         
               Under preamendment section 6404(e),2 the Commissioner “may             
          abate the assessment of interest on any payment of tax to the               
          extent that any error or delay in payment is attributable to an             


               2 In 1996, sec. 6404(e) was amended under sec. 301 of the              
          Taxpayer Bill of Rights 2, Pub. L. 104-168, 110 Stat. 1457                  
          (1996), to permit the Secretary to abate interest with respect to           
          an “unreasonable” error or delay resulting from “managerial” and            
          ministerial acts.  This amendment, however, applies to interest             
          accruing with respect to deficiencies or payments for tax years             
          beginning after July 30, 1996; therefore, the amendment is                  
          inapplicable to the case at bar.  See Woodral v. Commissioner,              
          112 T.C. 19, 25 n.8 (1999).                                                 






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