Bernard A. Kansky - Page 21

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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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