Linda Mitchell - Page 8

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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             

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