- 19 -
4. Conclusion
Petitioner has failed to make a valid challenge to the
appropriateness of respondent’s collection action.
C. Request for Abatement of Interest
In his petition, petitioner requests us to abate all
interest and penalties for 1987, 1990, and 1991.11
Section 6404(e)(1) provides that the Commissioner may abate
interest on any deficiency or payment of income, gift, estate,
and certain excise taxes to the extent that the deficiency or any
error or delay in payment is attributable to erroneous or
dilatory performance of a ministerial act by an officer or
employee of the Commissioner.12 Such an error or delay in
11 On brief, petitioner seems to suggest that he is also
requesting abatement of income tax for 1987, 1990, and 1991 and
may be requesting abatement of interest, taxes, and penalties for
other years as well. We decline to consider these issues raised
for the first time on brief, for to do so would result in
surprise and prejudice to respondent. See Sundstrand Corp. v.
Commissioner, 96 T.C. 226, 346-347 (1991); Seligman v.
Commissioner, 84 T.C. 191, 198 (1985), affd. 796 F.2d 116 (5th
Cir. 1986). In any event, in the administrative proceeding,
petitioner did not seek interest abatement for years other than
1987, 1990, and 1991; in this proceeding, petitioner has alleged
no facts or legal basis to support any claim for abatement of
interest for years other than 1987, 1990, and 1991. As discussed
infra, review of petitioner’s challenge to taxes and penalties is
precluded in these cases.
12 In 1996, sec. 6404(e) was amended to permit abatement of
interest for “unreasonable” error or delay resulting from the
performance of ministerial or “managerial” acts. Taxpayer Bill
of Rights 2, Pub. L. 104-168, sec. 301(a)(1) and (2), 110 Stat.
1457 (1996). The amended provision applies to tax years
beginning after July 30, 1996. Id. sec. 301(c). As previously
(continued...)
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