Richard Nichols and Lisa Nichols - Page 14

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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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