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to file an amended petition which met the requirements of Rule
281(b). On October 15, 2002, an amended petition was filed.
OPINION
Section 6404(e)(1) provides that the Commissioner may abate
the assessment of interest on payment of tax to the extent a
delay in such payment is attributable to any error or delay by an
officer or employee of the Internal Revenue Service in performing
a ministerial act.2 Section 301.6404-2(b)(2), Proced. & Admin.
Regs., provides in part that a ministerial act:
means 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.[3]
See also Lee v. Commissioner, 113 T.C. 145 (1999); Wright v.
Commissioner, T.C. Memo. 2002-312; Donovan v. Commissioner, T.C.
Memo. 2000-220.
2 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).
3 The quoted language from sec. 301.6404-2(b)(2), Proced. &
Admin. Regs., is identical to the language in sec. 301.6404-
2T(b)(1), Temporary Proced. & Admin. Regs., 63 Fed. Reg. 70013
(Dec. 18, 1998), which was in effect for 1996. In order to avoid
confusion, we will refer to this regulation using its current
designation, sec. 301.6404-2(b)(2), Proced. & Admin. Regs.
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Last modified: May 25, 2011