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officer or employee of the Internal Revenue Service in performing
a ministerial act.3 Section 301.6404-2(b)(2), Proced. & Admin.
Regs.,4 defines a “ministerial act” as:
a procedural or mechanical act that does not involve the
exercise of judgment or discretion, and that occurs during
the processing of a taxpayer’s case after all prerequisites
to the act, such as conferences and review by supervisors,
have taken place. A decision concerning the proper
application of federal tax law (or other federal or state
law) is not a ministerial act.
The Court may order abatement if the Commissioner abuses his
discretion by failing to abate interest. Sec. 6404(h)(1).5
3 The Taxpayer Bill of Rights 2 (TBOR 2), Pub. L. 104-168,
sec. 301(a), 110 Stat. 1457 (1996), amended sec. 6404(e) to
permit abatement of interest for “unreasonable” error and delay
in the performance of a “ministerial or managerial” act. The
amendments to sec. 6404(e) apply to interest accruing with
respect to deficiencies or payments for taxable years beginning
after July 30, 1996. See TBOR 2 sec. 301(c), 110 Stat. 1457.
Thus, the amendments do not apply to the instant case. See
Woodral v. Commissioner, 112 T.C. 19, 25 n.8 (1999).
4 The quoted language from sec. 301.6404-2(b)(2), Proced. &
Admin. Regs., is identical to the language of sec. 301.6404-
2T(b)(1), Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163
(Aug. 13, 1987), which was in effect for 1994. Sec. 6232(a) of
the Technical and Miscellaneous Revenue Act of 1988 (TAMRA 1988),
Pub. L. 100-647, 102 Stat. 3734, added subsec. (e) to sec. 7805.
Sec. 7805(e)(2) provides that "Any temporary regulation shall
expire within 3 years after the date of issuance of such
regulation." Sec. 7805(e)(2) applies to any temporary regulation
issued after Nov. 20, 1988. TAMRA 1988 sec. 6232(b), 102 Stat.
3735. The regulation herein involved was issued before Nov. 20,
1988, and thus the "sunset" provision of sec. 7805(e)(2) does not
apply to this regulation. In order to avoid confusion, we refer
to this regulation using its current designation, sec. 301.6404-
2(b)(2), Proced. & Admin. Regs.
5 Formerly, sec. 6404(g), applicable to requests for
abatement after July 30, 1996. TBOR 2 sec. 302, 110 Stat. 1457
(1996).
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