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official capacity) in performing a ministerial act.3 Woodral v.
Commissioner, 112 T.C. 19, 24-25 (1999). Section
301.6404-2T(b)(1), Temporary Proced. & Admin. Regs., 52 Fed. Reg.
30163 (Aug. 13, 1987), provides in part:
The term “ministerial act” means 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. A decision concerning
the proper application of federal tax law (or other
federal or state law) is not a ministerial act.
See also Lee v. Commissioner, 113 T.C. 145 (1999); Donovan v.
Commissioner, T.C. Memo. 2000-220.
This Court may order abatement where the Commissioner abuses
his discretion by failing to abate interest. Sec. 6404(h)(1).4
In order to prevail, a taxpayer must prove that the Commissioner
3 The Taxpayer Bill of Rights 2 (TBOR 2), Pub. L. 104-168,
sec. 301(a), 110 Stat. 1457 (1996), amended sec. 6404(e) to
permit abatement of interest for “unreasonable” error and delay
in the performance of a “ministerial or managerial” act. The
amendments to sec. 6404(e) apply to interest accruing with
respect to deficiencies or payments for taxable years beginning
after July 30, 1996. See TBOR 2 sec. 301(c), 110 Stat. 1457.
Thus, the amendments do not apply to the instant case. See
Woodral v. Commissioner, 112 T.C. 19, 25 n.8 (1999).
4 Sec. 6404(h) was formerly designated sec. 6404(i), and
before that sec. 6404(g). Sec. 6404(h) is applicable to requests
for abatement after July 30, 1996. We have jurisdiction over
petitioner’s request for abatement of interest because her
request was made as part of a sec. 6330 proceeding. See Katz v.
Commissioner, 115 T.C. 329, 340-341 (2000).
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