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stipulated the correctness of the Commissioner’s assessment.
Therefore, where the underlying tax liability is not at issue, as
in this case, this Court reviews the determination under an abuse
of discretion standard. Sego v. Commissioner, 114 T.C. 604, 610
(2000). An abuse of discretion is defined as any action that is
unreasonable, arbitrary or capricious, clearly unlawful, or
lacking sound basis in law, taking into account all the facts and
circumstances. E.g., Thor Power Tool Co. v. Commissioner, 439
U.S. 522, 532-533 (1979); Swanson v. Commissioner, 121 T.C. 111,
119 (2003).
Petitioners seek an abatement of the additions to tax and
interest with respect to taxable year 1999 and claim that
respondent’s failure to do so amounts to an abuse of discretion.
With respect to abatement of the interest due by
petitioners, the Appeals officer notified petitioners in
correspondence that “interest is charged by law. Even if I am
able to provide you with a favorable decision, you must pay the
interest due on the tax paid after it was due on 4/15/2000.”
A taxpayer may, under certain circumstances, qualify for an
abatement of interest under section 6404. A taxpayer, however,
is not eligible for such consideration if he files a return but
does not pay the taxes due. Downing v. Commissioner, 118 T.C. 22
(2002); H. Conf. Rept. 99-841 (Vol. II), at II-811 (1986), 1986-3
C.B. (Vol.4) 1, 811. Petitioners filed their 1999 Federal income
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