Donald W. and Kathryn B. Conner - Page 6

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          must show that the Commissioner exercised his discretion                    
          arbitrarily, capriciously, or without sound basis in fact or law.           
          Woodral v. Commissioner, supra at 23.                                       
               As applicable for the year in issue, section 6404(e) permits           
          the Commissioner to abate interest with respect to any                      
          “unreasonable” error or delay resulting from a ministerial or               
          managerial act.3  The regulations define a ministerial act as 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.”  Sec.             
          301.6404-2(b)(2), Proced. & Admin. Regs.  The regulations define            
          a managerial act as “an administrative act that occurs during the           
          processing of a taxpayer’s case involving the temporary or                  
          permanent loss of records or the exercise of judgment or                    
          discretion relating to management of personnel.”  Sec. 301.6404-            
          2(b)(1), Proced. & Admin. Regs.                                             
               Petitioners appear to assert that there was delay in                   
          processing the OIC.  In particular, petitioners assert that delay           
          resulted when the OIC was returned to them by the IRS for reasons           


               3  Sec. 6404(h), formerly sec. 6404(g), is applicable to               
          requests for abatement after July 30, 1996.  Taxpayer Bill of               
          Rights 2 (TBOR 2), Pub. L. 104-168, sec. 302, 110 Stat. 1457                
          (1996).  Further, sec. 301(a)(1) and (2) of TBOR 2 permits                  
          abatement of interest with respect to unreasonable error or delay           
          from “managerial” acts, effective for interest accruing with                
          respect to tax years beginning after July 30, 1996.                         





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