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submitted and also did some other research as to petitioner’s
motor vehicles and real property. She telephoned petitioner, who
was on vacation; she left a message.
It is clear that “the ball was in the IRS’s court” during
this period, and nothing happened to move the matter along until
February 26, 2002.13
However, a statutory requirement for any relief is that the
IRS’s error or delay be in performing a ministerial or managerial
act. Sec. 6404(e)(1)(B).
Krogue’s evaluating petitioner’s submitted materials and
otherwise researching petitioner’s assets are not ministerial
acts because (1) they involve the exercise of judgment or
discretion, (2) supervisors’ review had not yet taken place, and
(3) they involve the proper application of Federal tax law. See
sec. 301.6404-2(b)(2), Proced. & Admin. Regs.; Corson v.
Commissioner, 123 T.C. 202, 207 (2004); Lee v. Commissioner, 113
T.C. 145, 149-150 (1999); Goettee v. Commissioner, T.C. Memo.
2003-43 (I. Abatements of Interest) (quoting Minahan v.
Commissioner, 88 T.C. 492, 505 (1987)), affd. 192 Fed. Appx. 212
(4th Cir. 2006). Consequently, during the second period Krogue
was not being erroneous or dilatory in performing a ministerial
act.
13 On Jan. 8, 2002, Krogue told petitioner he should make a
payment; 2 days later she had petitioner’s check for the first
payment on petitioner’s first installment proposal.
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