115 T.C. No. 26
UNITED STATES TAX COURT
SCOTT WILLIAM KATZ, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 16718-99L. Filed October 13, 2000.
P received a notice of deficiency for his 1990 tax year. After P petitioned this Court to redetermine that deficiency determination, the Court entered a stipulated decision providing for a tax deficiency, additions to tax, and statutory interest. R subsequently filed a lien, and P, in turn, requested an Appeals hearing from R’s Appeals Office pursuant to sec. 6320(b), I.R.C. P refused to appear at the Appeals hearing on the grounds that the location of the Appeals hearing was inconvenient to P and his witnesses. After an Appeals officer discussed the collection matter with P via telephone, the Appeals officer issued to P a notice of determination under sec. 6330, I.R.C. P subsequently petitioned this Court to review the Appeals officer’s determination under sec. 6330, I.R.C. R now moves for partial summary judgment with regard to the tax deficiency, additions to tax, and interest that are the subject of R’s collection activities. - 2 -
Held: P received an adequate opportunity for an Appeals hearing pursuant to sec. 6320(b), I.R.C. In any event, the communications between the Appeals officer and P constituted an Appeals hearing under sec. 6320(b), I.R.C.
Held, further, P’s challenge to the merits of R’s assessment of the tax deficiency and additions to tax fails to state a claim on which relief can be granted.
Held, further, because the Court has jurisdiction under sec. 6404(i), I.R.C., over interest abatement cases, the Court has jurisdiction to review the Appeals officer’s determination with regard to the interest that is the subject of R’s collection activities. However, the Appeals officer did not abuse his discretion in making the determination.
Scott W. Katz, pro se.
Kenneth A. Hochman and John T. Lortie, for respondent.
OPINION
VASQUEZ, Judge: Petitioner filed a petition in response to
respondent’s Notice of Determination Concerning Collection
Action(s) Under Section 6320 and/or 6330 (notice of
determination).1 In his petition, petitioner alleges that the
Internal Revenue Service Office of Appeals (Appeals Office)
failed to hold a meaningful hearing as required by section
6320(b) (Appeals hearing). Petitioner further challenges the
merits of a tax deficiency and additions to tax previously
1 Unless otherwise indicated, all section references are to the Internal Revenue Code as amended, and all Rule references are to the Tax Court Rules of Practice and Procedure. - 3 -
redetermined by the Court in a decision entered for his 1990 tax
year, and interest assessed thereon. Respondent has moved for
partial summary judgment on the grounds that petitioner has been
afforded the opportunity for an Appeals hearing, that the tax
deficiency and additions to tax are properly due, and that the
interest has been properly calculated. There are no genuine
issues of material fact to preclude us from deciding this
matter.2 We therefore decide the legal issues before us.
Background
At the time the petition was filed, petitioner resided in
West Palm Beach, Florida. For the sole purpose of deciding the
motion for partial summary judgment, we summarize the relevant
facts.3
On September 19, 1996, respondent issued a notice of
deficiency with regard to petitioner’s 1990 tax year. On October
2, 1996, petitioner filed a petition with this Court seeking a
redetermination of the tax deficiency and additions to tax
determined by respondent in the notice of deficiency (original
tax dispute). On February 6, 1998, petitioner moved the U.S.
Bankruptcy Court for the Southern District of Florida to reopen
his 1990 bankruptcy case to settle the dispute with the
2 For purposes of respondent’s motion, petitioner does not dispute various factual allegations that are part of the record. 3 The summarized facts, however, are not findings of fact for the instant case. See Rule 1(a); Fed. R. Civ. P. 52(a). - 4 -
Commissioner regarding his “1990 income tax liability.” On March
10, 1998, the bankruptcy court denied the request, ruling that
petitioner’s “1990 tax liabilities were not discharged in * * *
[the] bankruptcy case.” In re Katz, No. 90-39248-BKC-RAM (Bankr.
S.D. Fla., Mar. 10, 1998). On May 14, 1998, with regard to the
original tax dispute, we entered a decision stipulated by the
parties setting out the amounts of the tax deficiency and
additions to tax and providing for statutory interest.4 See Katz
v. Commissioner, Docket No. 21359-96 (May 14, 1998). The amounts
of the tax deficiency and additions to tax redetermined in the
decision were much lower than the amounts set forth in the notice
of deficiency. Subsequently, respondent assessed the tax
deficiency, additions to tax, and interest.
On February 23, 1999, respondent filed a Notice of Federal
Tax Lien (lien filing) with regard to the amounts assessed for
the 1990 tax year in the county recorder’s office for Palm Beach
County, Florida. On February 27, 1999, respondent transmitted to
petitioner a “Notice of Federal Tax Lien Filing and Your Right to
a Hearing under IRC 6320”. On or about March 31, 1999, pursuant
to section 6320(b), petitioner requested an Appeals hearing from
respondent’s Appeals Office. In his request, petitioner
contested the entire amount listed in the lien filing.
4 The decision provided: “It is further stipulated that interest will be assessed as provided by law on the deficiency and additions to tax due from the petitioner.” - 5 -
Petitioner contended that “any tax money allegedly owed for 1990”
was discharged pursuant to his bankruptcy action and that (in any
event) interest should not have accrued during the bankruptcy
proceeding.
On May 24, 1999, an Appeals officer5 assigned to the South
Florida region mailed petitioner a letter scheduling petitioner’s
requested Appeals hearing for June 8, 1999, at an Appeals Office
in Sunrise, Florida. The Appeals officer stated in the letter:
“If you are unable to attend, let me know within the next 5 days,
and I will arrange another time. Please try to keep this
appointment, because conferences are not held in your area often,
and special arrangements must be made.” The Appeals officer
explained that “an earlier conference may be possible if held in
my office or conducted by telephone.” The Appeals officer
further explained to petitioner the procedures of the Appeals
hearing:
This conference will be informal. You may present facts, arguments, and legal authority to support your position. If you plan to introduce new evidence or information, send it to me at least 10 days before the conference. Statements of fact should be presented as affidavits or signed under penalties of perjury.
On that same day, independent of the letter drafted by the
Appeals officer, petitioner mailed a letter to the Appeals
officer reasserting his request for an Appeals hearing. In the
5 The Appeals officer was based in Miami, Florida. - 6 -
letter, petitioner requested that the Appeals hearing “take place
in West Palm Beach, Florida since all of the witnesses live and
work in West Palm Beach, Florida.”
On June 7, 1999, after receiving the Appeals officer’s
letter dated May 24, 1999, petitioner again transmitted a letter
to the Appeals officer requesting “that any and all hearings be
held in West Palm Beach, Florida.” Petitioner further stated
that “all of my witnesses and people involved * * * [with regard
to] the 1990 [tax year] are in West Palm Beach, Florida. In
short, I will not attend the conference you set up on 6/8/99.
* * * Again, please reset the matter for a conference in West
Palm Beach, Florida. I cannot appear with my witnesses almost an
hour away.”
On June 21, 1999, petitioner and the Appeals officer had a
telephone conversation in which they discussed petitioner’s 1990
tax year. During the telephone conversation, the Appeals officer
informed petitioner that Appeals hearings were not available in
West Palm Beach, Florida, but rather were conducted in Sunrise,
Florida. On June 23, 1999, the Appeals officer followed up the
telephone conversation with a letter in which he stated that he
saw “no basis for recommending abatement of the 1990 income tax
liability.” The Appeals officer also informed petitioner that he
could (1) petition the Tax Court to review the lien filing
following the issuance of a notice of determination by the - 7 -
Appeals officer or (2) settle with the Internal Revenue Service
(IRS).6 On September 28, 1999, following inaction by petitioner,
the Appeals officer issued a notice of determination deciding
“not to withdraw the Notice of Federal Tax Lien.”7 In the notice
of determination, the Appeals officer explained that petitioner’s
“tax was not dischargeable” pursuant to applicable bankruptcy law
and that petitioner had “signed a stipulation waiving the
restrictions prohibiting assessment and collection of the
deficiency and additions to tax (plus statutory interest) for the
taxable year 1990”.
Petitioner, thereafter, petitioned this Court to review
respondent’s determination pursuant to section 6330. In the
petition, petitioner contends that (1) he has never received (or
had the opportunity for) an Appeals hearing, (2) the Tax Court
decision with regard to the tax deficiency and additions to tax
should be vacated because of the previous bankruptcy action, and
(3) respondent is not entitled to interest for the period during
6 The Appeals officer suggested to petitioner the following alternatives for settlement:
1. Full payment of the liability. 2. Enter into an installment agreement. 3. Submit an offer in compromise, [based on] doubt-as- to collectibility. 7 There are no indications in the record that after speaking with the Appeals officer, petitioner requested an Appeals hearing to be held at the Appeals Office in Sunrise, Florida. - 8 -
which he was in bankruptcy proceedings.
Discussion
Section 6321 provides that, if any person liable to pay any
tax neglects or refuses to do so after demand, the amount shall
be a lien in favor of the United States upon all property and
rights to property, whether real or personal, belonging to such
person. Pursuant to section 6323, the Commissioner generally is
required to file a Notice of Federal Tax Lien with the
appropriate State office for the lien to be valid against certain
third parties.
After the Commissioner conducts the lien filing, section
6320(a)(1) requires the Commissioner to provide notice to the
taxpayer of the lien.8 In addition, under section 6320(a)(3)(B)
and (b), the Commissioner must provide the taxpayer with notice
of and an opportunity for an administrative review of the lien
filing; i.e., an Appeals hearing. Section 6320(b)(1) requires
that the Appeals Office conduct the Appeals hearing. Section
6320(c) incorporates section 6330(c) and certain parts of section
6330(d), which describe the procedural rules that apply to the
8 In the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746-750, Congress enacted secs. 6320 (pertaining to liens) and 6330 (pertaining to levies) to provide new protections for taxpayers with regard to collection matters. - 9 -
Appeals hearing and the judicial review thereof.9
At the Appeals hearing, the taxpayer may raise certain
matters set forth in section 6330(c)(2), which provides in
pertinent part as follows:
SEC. 6330(c). Matters Considered at Hearing.-–In the case of any hearing conducted under this section-–
* * * * * * *
(2) Issues at hearing.--
(A) In general.–-The person may raise at the hearing any relevant issue relating to the unpaid tax or the proposed levy, including–-
(i) appropriate spousal defenses;
(ii) challenges to the appropriateness of collection actions; and
(iii) offers of collection alternatives, which may include the posting of a bond, the substitution of other assets, an installment agreement, or an offer-in- compromise.
(B) Underlying liability.–-The person may also raise at the hearing challenges to the existence or amount of the underlying tax liability for any tax period if the person did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.
Pursuant to section 6330(d)(1), within 30 days of the issuance of
9 Sec. 6330(a) and (b) provides taxpayers with notice and opportunity for an Appeals hearing before a levy is made. - 10 -
the notice of determination, the taxpayer may appeal that
determination to this Court if we have jurisdiction over the
underlying tax liability. If we do not have jurisdiction over
the underlying tax liability, then the appeal is to be made to a
U.S. District Court. See sec. 6330(d)(1).
Appeals Hearing
Petitioner asserts that the Appeals officer did not afford
petitioner an Appeals hearing as required under section 6320(b).
Petitioner argues in his objection to respondent’s motion for
partial summary judgment that his request for an Appeals hearing
was never honored, that he has never submitted a “Withdrawal of
Request for Collection Due Process” form to the Appeals officer,
and that “various telephonic conversations and/or letters to the
Petitioner [by the Appeals officer] do not meet the requirements
of Section 6320” for an Appeals hearing. Petitioner therefore
argues that respondent’s motion should be denied. Respondent
disagrees and states that the Appeals officer afforded petitioner
an opportunity to have an “in-person hearing” at the Appeals
Office in Sunrise, Florida, which petitioner declined.
Section 6320(b) provides that if a taxpayer “requests a
hearing under subsection (a)(3)(B), such hearing shall be held by
the Internal Revenue Service Office of Appeals.” Section 6320
does not specify at what location the Appeals hearing needs to
take place or whether it can occur via telephone. Furthermore, - 11 -
the legislative history to sections 6320 and 6330 does not
address this issue. See H. Conf. Rept. 105-599, at 263-267
(1998).
Respondent asserts that for petitioner’s geographic
location, Appeals hearings are generally held at the Appeals
Office in Sunrise, Florida. Petitioner does not dispute this
claim. From petitioner’s correspondence with the Appeals
officer, we assume that petitioner’s complaint is that under
section 6320(b) he is entitled to an Appeals hearing in West Palm
Beach, Florida, the location of his alleged witnesses and the
place of his residence.
Because Congress has not specifically addressed the location
for an Appeals hearing, we look to other tax contexts for
guidance. In the examination context, Congress has stated that
the time and place of an examination shall be such time and place
as “may be fixed by the Secretary and as are reasonable under the
circumstances.” Sec. 7605(a). Under section 301.7605-1(d)(2),
Proced. & Admin. Regs., the location of an office examination is
based on the taxpayer's residence:
(d) Place of examination–- * * *.
(2) Office examinations–-(i) In general. * * * An office examination generally will take place at the closest Service office within the district encompassing the taxpayer’s residence * * *. It generally is not reasonable for the Service to require a taxpayer to attend an examination at an office within an assigned - 12 -
district other than the closest Service office.
(ii) Exception. If the office within the assigned district closest to an individual taxpayer’s residence * * * does not have an examination group or the appropriate personnel to conduct the examination, it generally is reasonable for the Service to require the taxpayer to attend an examination at the closest Service office within the assigned district that has an examination group or the appropriate personnel.
(iii) Travel Considerations. In scheduling office examinations, the Service in appropriate circumstances will take into account the distance a taxpayer would have to travel.
In section 301.7605-1(e)(1), Proced. & Admin. Regs., the
Secretary further provides:
The Service will consider, on a case-by-case basis, written requests by taxpayers or their representatives to change the place that the Service has set for an examination. In considering these requests, the Service will take into account the following factors–
(i) The location of the taxpayer’s current residence;
(ii) The location of the taxpayer’s current principal place of business;
(iii) The location at which the taxpayer’s books, records, and source documents are maintained;
(iv) The location at which the Service can perform the examination most efficiently;
(v) The Service resources available at the location to which the taxpayer has requested a transfer; and
(vi) Other factors that indicate that conducting the examination at a particular location could pose - 13 -
undue inconvenience to the taxpayer.[10]
The Treasury regulations in the examination context consider
the distances taxpayers will have to travel to submit information
to the IRS and attempt to provide taxpayers with venues at IRS
offices near their homes. At the same time, the Treasury
regulations recognize the limited resources of the IRS and, under
certain circumstances, provide for alternate examination
locations more favorable to the IRS if the IRS office closest to
the taxpayer’s home lacks the appropriate personnel to conduct
the investigation. We conclude that a similar framework also
applies in the context of an Appeals hearing under section
6320(b).11
From the record, it appears that the Appeals Office closest
to the residence of petitioner is the Appeals Office in Sunrise,
Florida. Petitioner has not alleged that there is an Appeals
Office in West Palm Beach or one closer to his residence.
Petitioner alleged in one of his letters to the Appeals officer
only that he could not “appear with [his] witnesses” when the
10 Sec. 301.7605-1(e)(2), Proced. & Admin. Regs., lists the circumstances in which the Internal Revenue Service (IRS) will normally permit transfers. 11 Sec. 6330(b) (which is almost identical to sec. 6320(b)) allows a taxpayer to have an Appeals hearing with regard to a proposed levy. Because Appeals hearings pursuant to secs. 6320(b) and 6330(b) have the same function and scope, the framework we apply to an Appeals hearing under sec. 6320(b) also applies to an Appeals hearing under sec. 6330(b). - 14 -
hearing location was “almost an hour away” from West Palm Beach.
Petitioner did not, nor does he now, explain why commuting an
hour would constitute an undue burden on petitioner or his
witnesses. On the basis of the record, we cannot find support
for petitioner’s contention.
We also note that in Davis v. Commissioner, 115 T.C. ___
(2000), we recently addressed a taxpayer’s claim that an Appeals
officer failed to afford him an Appeals hearing as envisioned by
Congress in section 6330. The taxpayer in that case argued that
any meaningful hearing required “that he be able to subpoena
witnesses and documents”. Id. at ___ (slip op. at 8). We stated
that the “nature of the administrative Appeals process does not
include the taking of testimony under oath or the compulsory
attendance of witnesses.” Id. at ___ (slip op. at 11). We noted
that hearings “at the Appeals level have historically been
conducted in an informal setting” and that nothing in section
6330 or the legislative history indicated that Congress intended
to alter this format.12 Id. at ___ (slip op. at 10). Pursuant
12 In Davis v. Commissioner, 115 T.C. ___, ___ (2000) (slip op. at 10), we looked at Treasury regulations dealing with the functions of the Appeals Office. We cited sec. 601.106(c), Statement of Procedural Rules, which provides:
(c) Nature of proceedings before Appeals. Proceedings before the Appeals are informal. Testimony under oath is not taken, although matters alleged as facts may be required to be submitted in the form of affidavits, or declared to be true under the penalties (continued...) - 15 -
to Davis v. Commissioner, supra, applicable Treasury regulations,
and the historical function of the Appeals Office, petitioner did
not have the right to examine witnesses under oath during the
Appeals hearing.13 Davis v. Commissioner, supra, undermines
petitioner’s argument that he was entitled to an Appeals hearing
in West Palm Beach because traveling to Sunrise, Florida, for his
Appeals hearing would impose a burden on his witnesses.
On the basis of the entire record and applicable law, we
conclude that the Appeals officer has complied with the
requirements of section 6320(b) by providing petitioner an
opportunity for an Appeals hearing.
Because of petitioner’s insistence on an Appeals hearing in
West Palm Beach, Florida, the Appeals officer attempted to
accommodate petitioner by offering to discuss his case over the
telephone. From the record, we conclude that petitioner and the
Appeals officer did in fact discuss his case over the telephone
and that the Appeals officer heard and considered petitioner’s
arguments. We thus further conclude that, through the
communications between petitioner and the Appeals officer in the
instant case, petitioner received an Appeals hearing as provided
for in section 6320(b).
12 (...continued) of perjury. * * * 13 Petitioner, however, could have submitted facts in the form of affidavits or declarations under penalties of perjury. - 16 -
The Court’s Jurisdiction To Review Respondent’s Collection Activities Is Based on Jurisdiction Over the Underlying Tax Liability
The Appeals officer made a determination that the lien
should not be removed because the tax deficiency, additions to
tax, and interest were properly due. By way of a timely filed
petition, petitioner has invoked the jurisdiction of this Court
to review the determination with regard to each of those amounts.
The Court’s jurisdiction to review an Appeals officer’s
determination that relief (to remove a lien) should be denied is
set forth in section 6330(d)(1):
SEC. 6330(d). Proceeding After Hearing.--
(1) Judicial review of determination.–-The person may, within 30 days of a determination under this section, appeal such determination–-
(A) to the Tax Court (and the Tax Court shall have jurisdiction to hear such matter); or
(B) if the Tax Court does not have jurisdiction of the underlying tax liability, to a district court of the United States.
If a court determines that the appeal was to an incorrect court, a person shall have 30 days after the court determination to file such appeal with the correct court.
Therefore, in order to have jurisdiction over matters listed in a
petition with regard to a notice of determination pursuant to
section 6330, we must decide whether the “underlying tax
liability” is of a type over which this Court normally has
jurisdiction. See Moore v. Commissioner, 114 T.C. 171, 175
(2000). - 17 -
Although the term “underlying tax liability” is defined in
neither sections 6320 and 6330 nor the legislative history,
Congress’ intent in ensuring due process to taxpayers when the
Commissioner seeks to collect taxes by liens or levies suggests
that the term includes any amounts owed that are the subject of
the Commissioner’s collection activities.14 See H. Conf. Rept.
105-599, supra at 263-267. We, therefore, interpret the term
“underlying tax liability” in section 6330(d)(1) to include any
amounts owed by a taxpayer pursuant to the tax laws. In this
case, the underlying tax liability includes the tax deficiency,
additions to tax, and statutory interest. We, therefore, must
decide whether we have jurisdiction over the tax deficiency,
additions to tax, and interest that are the subject of
respondent’s collection activities, in order to review the
Appeals officer’s determination pursuant to section 6330 (and
petitioner’s contentions) with regard to each of those amounts.
Review of Tax Deficiency and Additions to Tax
We generally have deficiency jurisdiction to redetermine
deficiencies in income taxes and related additions to tax. See
secs. 6211, 6213(a), 6214(a); see also Goza v. Commissioner, 114
T.C. 176, 182 (2000); Moore v. Commissioner, supra at 175. We,
therefore, have jurisdiction to review the Appeals officer’s
determination in this case insofar as it relates to the assessed
14 References to “collection activities” are to the Commissioner’s attempts to collect unpaid taxes through the filing of a lien or the making of a levy. - 18 -
tax deficiency and additions to tax.
Pursuant to section 6330(c)(2)(A), a taxpayer may raise at
the Appeals hearing any relevant issue with regard to the
Commissioner’s collection activities, including spousal defenses
to collection, challenges to the appropriateness of the
Commissioner’s intended collection activities, and possible
alternative means of collection. See Sego v. Commissioner, 114
T.C. 604, 609 (2000); Goza v. Commissioner, supra at 180.
If a taxpayer has been issued a notice of deficiency or had the
opportunity to litigate the underlying tax liability, however,
the taxpayer is precluded from challenging the existence or
amount of the underlying tax liability. See sec. 6330(c)(2)(B);
Sego v. Commissioner, supra at 609-611; Goza v. Commissioner,
supra at 180-181, 183-184. Moreover, the taxpayer is precluded
from relitigating issues raised and considered in any previous
Appeals hearing or in any other administrative or judicial
proceeding in which the taxpayer participated meaningfully. See
sec. 6330(c)(4).15
As to the tax deficiency and additions to tax for 1990,
petitioner’s liability is established by the stipulated decision
entered by this Court.16 The bankruptcy court considered and
15 Sec. 6330(c)(4), however, does not apply in certain limited circumstances. See sec. 6330(d)(2). 16 The doctrine of res judicata, which applies to a stipulated decision, precludes relitigation of the issues involved in that tax litigation. See Cincinnati Transit Inc. v. (continued...) - 19 -
rejected his claim that his “income tax liability” for that year
was discharged in his bankruptcy case. Petitioner does not seek
relief as permitted under section 6330(c)(2)(A). He is thus
precluded from challenging that liability in this proceeding and
has, at the same time, failed to state a cognizable claim. See
Goza v. Commissioner, supra at 183.
Review of Statutory Interest
Petitioner makes an additional contention (separate from the
issues related to the tax deficiency and additions to tax) that
he is not liable for the statutory interest. He in effect argues
that we have jurisdiction to review the Appeals officer’s
determination with regard to the interest that is the subject of
respondent’s collection activities.
In Moore v. Commissioner, supra at 175, we interpreted
section 6330(d)(1)(A) and (B) as not expanding the Court’s
jurisdiction beyond the types of taxes that the Court may
normally consider (such as income, estate, and gift taxes). We
concluded that because we did not have jurisdiction to
redetermine Federal trust fund taxes determined by the
Commissioner under section 6672, we did not have jurisdiction to
review a determination made pursuant to section 6330 with regard
to those taxes. See id.
16 (...continued) Commissioner, 55 T.C. 879, 883-884 (1971); Krueger v. Commissioner, 48 T.C. 824, 829-830 (1967); Hamdan v. Commissioner, T.C. Memo. 2000-19. - 20 -
Our jurisdiction to redetermine assessments of interest
pursuant to section 6601 is limited. Section 7481(c) provides
that if within 1 year after a decision becomes final, the
taxpayer files a petition to redetermine interest, the Tax Court
has overpayment jurisdiction with regard to the interest.17
Further, section 6404(i) provides the Tax Court with jurisdiction
to review the Commissioner’s refusal to abate interest under
section 6404.
In his request for an Appeals hearing, petitioner contended
that interest should not have accrued during his bankruptcy case.
Because we view petitioner’s request as a request for an
abatement of interest, we hold that we have jurisdiction to
review the Appeals officer’s determination with regard to the
interest that is the subject of respondent’s collection
activities.
Under preamendment section 6404(e),18 the Commissioner “may
abate the assessment of interest on any payment of tax to the
17 Sec. 7481(c)(2)(A)(ii), however, requires that the taxpayer have “paid the entire amount of the deficiency plus interest” for the Tax Court to have overpayment jurisdiction with regard to the interest. 18 In 1996, sec. 6404(e) was amended under sec. 301 of the Taxpayer Bill of Rights 2, Pub. L. 104-168, 110 Stat. 1452, 1457 (1996), to permit the Secretary to abate interest with respect to an “unreasonable” error or delay resulting from “managerial” and ministerial acts. This amendment, however, applies to interest accruing with respect to deficiencies or payments for tax years beginning after July 30, 1996; therefore, the amendment is inapplicable to the case at bar. See Woodral v. Commissioner, 112 T.C. 19, 25 n.8 (1999). - 21 -
extent that any error or delay in payment is attributable to an
officer or employee of the IRS being erroneous or dilatory in
performing a ministerial act.” See Lee v. Commissioner, 113 T.C.
145, 148 (1999). A ministerial act, however, does not include “a
decision concerning the proper application of federal tax law (or
other federal or state law)”. Sec. 301.6404-2(b)(2), Proced. &
Admin. Regs.
Petitioner has not alleged a ministerial error within the
meaning of section 6404(e). Furthermore, the evidence does not
establish that respondent committed a ministerial error requiring
an abatement of interest.
Conclusion
For the reasons explained above, petitioner’s challenge to
his liability for the tax deficiency and additions to tax fails
to state a cognizable claim for relief. We hold that none of the
other grounds upon which petitioner relies, as stated in his
submissions to the Appeals officer, his petition to this Court,
and his arguments in response to respondent’s motion, constitutes
a basis upon which we can find that the Appeals officer’s
determination was an abuse of discretion. Because respondent’s
motion for partial summary judgment covers all the remaining
issues in the instant case, we treat it as a motion for full
summary judgment, which we now grant.
To the extent not herein discussed, we have considered
petitioner’s other arguments and find them to be without merit. - 22 -
To reflect the foregoing,
An appropriate order and
decision will be entered for
respondent.