- 7 - 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).Page: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: May 25, 2011