Dolores Nelson - Page 6

                                        - 6 -                                         
          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.                  




Page:  Previous  1  2  3  4  5  6  7  8  9  10  Next

Last modified: May 25, 2011