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Wilkes wrote petitioners and said she had transferred
petitioners’ offer in compromise to the Jacksonville office for
processing. We infer that the CDP release code was entered on
July 23, 2002, because respondent was able to work on
petitioners’ case on that date. Everything in the record
relating to entering the CDP release code in petitioners’ file
suggests that the delay in doing so was a ministerial act, sec.
301.6404-2T(b)(1), Temporary Proced. & Admin. Regs., supra, and
that the delay was an error, see Palihnich v. Commissioner, T.C.
Memo. 2003-297 (failure to pay tax attributed to the
Commissioner’s loss of file); Jacobs v. Commissioner, T.C. Memo.
2000-123 (lack of evidence held against the Commissioner because
the Commissioner is in the best position to know what actions
were taken by IRS officers and employees during the period for
which the taxpayers’ abatement request was made); Douponce v.
Commissioner, supra (failure to pay tax attributed to the
Commissioner’s failure to provide correct payoff amount).
However, petitioners are not entitled to relief under
section 6404(e) from January 24 to July 2, 2002, because they did
not file their tax returns for 2000 and 2001, as required by
respondent before considering their offer in compromise, until
July 2, 2002. Thus, a significant aspect of respondent’s delay
was due to petitioners.
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