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Regulations define “ministerial act” as “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). The regulations illustrate how the Commissioner
applies this definition with numerous examples. See sec.
301.6404-2T(b)(2), Temporary Proced. & Admin. Regs., supra. A
consistent theme in the examples is that decisions on allocating
IRS personnel are “managerial,” not “ministerial,” meaning that
delays caused by the Nicholses’ file sitting “on the respective
personnel’s desk”--even if we assume on a summary judgment motion
that those delays are completely the IRS’s fault--from the onset
of the audit until the execution of the Form 870 are not
ministerial. This is not new--we have held in the past that the
“mere passage of time” does not “establish error or delay * * *
in performing a ministerial act.” Lee v. Commissioner, 113 T.C.
145, 150 (1999). And, as the Commissioner argues, once the Form
870 was signed, the Nicholses themselves were directly
responsible for the interest accrual by choosing not to pay the
5(...continued)
interest that piled up because of “managerial acts” by the IRS,
but that amendment is effective only for tax years beginning
after July 30, 1996. Taxpayer Bill of Rights 2, Pub. L. 104-168,
sec. 301(a)(2), 110 Stat. 1457.
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