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virtue of the doctrine of res judicata and the operation of
section 6330(c)(2)(b).
2. Ministerial Error
Petitioner has failed to show error or delay by respondent’s
officers or employees in performing a ministerial act within the
meaning of section 6404(e). A “ministerial act” means a
procedural or mechanical act that does not involve the exercise
of judgment or discretion and occurs during the processing of a
taxpayer’s case after all the prerequisites to the act, such as
conferences and review by supervisors, have taken place. See
Corson v. Commissioner, 123 T.C. 202, 207 (2004); sec. 301.6404-
2T, Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug.
13, 1987). The exercise of judgment or discretion, such as the
Commissioner’s deliberation concerning the proper application of
Federal tax law or other law, is not a ministerial act. Corson
v. Commissioner, supra.
Petitioner alleges that respondent’s Stoneham,
Massachusetts, office wrongfully “withheld” his records for
nearly 5 years after obtaining them by summons. The mere passage
of time in such circumstances, however, does not establish
erroneous or dilatory ministerial acts by respondent. See Hanks
v. Commissioner, T.C. Memo. 2001-319.
It was not until 1996 that petitioner finally submitted his
delinquent returns for 1987 through 1991. Relatively soon
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