Dolores Nelson - Page 7

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               Petitioner did receive incorrect advice from the Internal              
          Revenue Service as to the application of the Federal tax law on             
          two occasions; i.e., in the telephone conversation confirming               
          that a rollover would cause the IRA distribution to be tax free,            
          and by Mr. Cool’s indication that a partial rollover would reduce           
          the taxable income and result in a refund.  Section 408(d)(3)(C)            
          bars a rollover of an inherited account unless the account is               
          received by the surviving spouse of the contributor.  However,              
          giving incorrect advice concerning the proper application of                
          Federal tax law is not a ministerial act allowing relief under              
          section 6404(e).4  See sec. 301.6404-2(b)(2), Proced. & Admin.              
          Regs.                                                                       
               The Court may order abatement if the Commissioner abuses his           
          discretion by failing to abate interest.  Sec. 6404(h)(1).5  In             
          order to prevail, a taxpayer must prove the Commissioner                    
          exercised his discretion arbitrarily, capriciously, or without              



               4 The first instance of incorrect advice, conveyed over the            
          telephone, also occurred before the IRS contacted petitioner in             
          writing about the payment of tax and is another ground for denial           
          of relief.  See sec. 6404(e)(1).                                            
               5 For the tax year 1996, this provision was designated sec.            
          6404(g).  However, it was subsequently designated sec. 6404(i) by           
          secs. 3305(a) and 3309(a) of the Internal Revenue Service                   
          Restructuring and Reform Act of 1998, Pub. L. 105-206, 112 Stat.            
          743, 745, and then was redesignated sec. 6404(h) by sec.                    
          112(d)(1)(B) of the Victims of Terrorism Tax Relief Act of 2001,            
          Pub. L. 107-134, 115 Stat. 2427, 2435.  In order to avoid                   
          confusion, we will refer to this provision using its current                
          designation, sec. 6404(h).                                                  




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