Thomas and Julia Bo - Page 22

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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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