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situations: (1) When a deficiency is attributable to an error or
delay by an officer or employee of the IRS in performing a
ministerial act, or (2) when interest is assessed on any payment
of certain taxes (including income tax) to the extent that an
error or delay in such payment is attributable to an officer or
employee of the IRS being erroneous or dilatory in performing a
ministerial act.5 An error or delay by an officer or employee of
the IRS shall be taken into account only if no significant aspect
of such error or delay can be attributed to the taxpayer
involved, and after the IRS has contacted the taxpayer in writing
with respect to such deficiency or payment. Id.
A “ministerial act” is 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. 301.6404-2T(b)(1), Temporary
Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987).6 A
5 In 1996, sec. 6404(e) was amended by the Taxpayer Bill of
Rights 2, Pub. L. 104-168, sec. 301(a)(1) and (2), 110 Stat.
1457, to permit the Commissioner to abate the assessment of
interest attributable to IRS errors or delays in performing both
managerial and ministerial acts. The amendment applies to
interest accruing with respect to deficiencies for taxable years
beginning after July 30, 1996, and therefore does not apply to
the matter before us.
6 Final regulations under sec. 6404 were issued on Dec. 18,
1998, and contain the same definition of a ministerial act as do
the temporary regulations. See sec. 301.6404-2(b)(2), Proced. &
(continued...)
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