§6404 — Abatements

The Court finds that these stipulations and exhibits are relevant to the case at hand; accordingly we overrule respondent's objections.

6404(b) precludes a claim under I.R.C. sec. 6404(a) for abatement of interest on income tax. Because Ps’ request for abatement is for interest assessed on income tax, I.R.C. sec. 6404(a) is inapplicable.

Unlike section 6404(h), section 6330 contains no cross-reference to the rules ofsection 6512(b), nor does section 6330 cross-reference section 6404(h)(2)(B) * * *.

However, unlike section 6404(e), subsection (a) does not bar abatement when a significant aspect ofthe - 28 - [*28] error or delay can be attributed to the taxpayer involved.

Unlike the discretionary interest abatementprovision ofsection 3We treat this as a concession by respondent and do not decide whetherthe May 11, 2009, letter constituted a contact in writing with respect to a deficiency or payment pursuantto sec. 6404(e)(1).

Petitioners, unlike the taxpayers in Braun and Donovan, have in essence equated respondent's 9We also found that no "ministerial acts" within the meaning ofsec. 6404(e) were performed by the Commissioner.

That amendment does not apply here in that it is generally effective for interest accruing on deficiencies for taxable years beginning after July 30, 1996 .

But unlike the amendment to section 6404, the amendment to section 6015(e) gives no, it indication that we should review the Commis.sio.ner's .determination for abuse of discretion .

Unlike section 6404(h), section 6330 contains no cross-reference to the rules of section 6512(b), nor does section 6330 cross-reference section 6404 (h)(2) (B), which makes section 6512(b)-type rules applicable only "for purposes of this subsection" (i.e., subsection (h) of section 6404).

That amendment does not apply here in that it is effective for interest accruing on deficiencies for taxable years beginning after July 30, 1996.

However, we can find no compelling reason to distinguish the logic and reasoning of this Court in Neely v. Commissioner, supra. An entitlement to the statutory relief provided by section 6015 is no less a defense to respondent’s determination than the statutory relief provided by section 6501(a) in the Neely case. There, as in the instant case, an affirmative defense was pleaded in a matter properly before the Court. Petitioner’s petition under section 6404 is properly before the - 8 - Court, a

Section 6404(g) does not bar assessment, unlike section 6213. Thus, we lack jurisdiction under section 6404 to decide petitioner's claim that respondent made a wrongful levy.6 2.

This case, unlike Banat v. Commissioner, supra, does not involve a request for abatement of interest pending after July 30, 1996; rather, petitioners' requests for abatement were made and denied prior to July 31, 1996. Consistent with our holding in Banat, we conclude that section 6404(g) is not applicable to requests for abatement made and denied prior to the date of the enactment of TBOR 2.

For purposes ofsection 6404(e)(1) "an error or delay shall be taken into account 6Because we conclude that petitioners have not established reasonable cause for their failure to timely pay their tax liabilities, we need not decide whether their failure was due to willful neglect.

For purposes ofsection 6404(e)(1) "an error or delay shall be taken into account 6Because we conclude that petitioners have not established reasonable cause for their failure to timely pay their tax liabilities, we need not decide whether their failure was due to willful neglect.

For purposes ofsection 6404(e)(1) "an error or delay shall be taken into account 6Because we conclude that petitioners have not established reasonable cause for their failure to timely pay their tax liabilities, we need not decide whether their failure was due to willful neglect.

For purposes ofsection 6404(e)(1) "an error or delay shall be taken into account 6Because we conclude that petitioners have not established reasonable cause for their failure to timely pay their tax liabilities, we need not decide whether their failure was due to willful neglect.

The posit, however, "that while the decision to suspend civil acti ity in itself may not be a ministerial duty, actions prior to and subsequent to the making of the actual decision may be defined as ministerial ." We disagree with their argument as applied o the circumstances of this case .

“[A] request for an abatement of interest and penalty pursuant to section 6404(e) and (f) [constitutes] a challenge to the existence of an underlying liability.” Salahuddin v.

14 Petitioners did not request interest abatement pursuant to section 6404 for either year.

Petitioner filed on April 4, 2018, its petition for review of the Secretary’s failure to abate interest pursuant to section 6404(h).1 On August 2, 2017, petitioner filed with the Internal Revenue Service a separate Form 843, Claim for Refund and Request for Abatement, for each of the tax periods ending on the following dates: June 30, September 30, and December 31, 2009; June 30, September 30, and December 31, 2010; and Marc

In other words, "the period pursuant to section 6404(e)(1) may begin when the IRS commences an audit." Allcorn v.

OPINION Pursuant to section 6404(e)(1), the Commissioner may abate part or all ofan assessment ofinterest on any deficiency or payment ofincome tax to the extent that any unreasonable error or delay in payment is attributable to erroneous or dilatory performance ofa ministerial or managerial act by an officer or employee ofthe IRS

We discuss below all ofthese arguments (we hold that none can support a ruling in the Larkins' favor) and address the further 2At various times the Larkins assert that this case is not about interest abatement or the abuse ofdiscretion by the Commissioner.

SERVED JUL - 1 2013 - 2 - [*2] MEMORANDUM FINDINGS OF FACT AND OPINION GERBER, Judge: Petitioner seeks our review, pursuant to section 6404(e),2 ofrespondent's final determination denying her request for abatement ofinterest on her 2004 income tax liability.

We lack jurisdiction pursuant to section 6404 (h) unless and until the Secretary has mailed the "final determination not to abate such interest." Sec.

We hold it was not .

MEMORANDUM FINDINGS OF FACT AND OPINION VASQUEZ, Judge: Pursuant to section 6404(h),1 the Estate of Nicholas Telesmanich, Deceased (the estate) , Kresimir Telesmanich, Executor, challenged respondent' s Full 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 Procedu

SERVED Apr 14 2010 2 - MEMORANDUM OPINION GOEKE, Judge : Respondent denied the Larkins' claim for abatement of interest pursuant to section 6404 .2 The interest in dispute arises from a 1983 income tax deficiency of $3,374 and an addition to tax under section 6653(a)(1) .

ot find any errors or delays on our part that merit the abatement of interest in our review of available records and 11 other information for the period from April 15, 2004 to May 8, 2006 ." On September 5, 2007, petitioner petitioned the Court for a review of respondent's failure to abate interest pursuant to section 6404 .

We hold that it was ;j not.

Petitioner's claim is broad enough to be considered a request for interest abatement pursuant to section 6404 .

Pursuant to section 6404 (e) (1) , the Commissioner may abat part or all of an assessment of interest on any deficiency or payment of income tax.

6404, on that record, we hold that the Court does not have jurisdiction to review petitioners' request that we review any such failure .

Pursuant to section 6404 (e)(1), the Commissioner may abate part or all of an assessment of interest on any deficiency;or payment of income tax .

whether petitioners are entitled to an abatement of interest accruing for their 1971 tax year pursuant to section 6404.

We hold that section 6402(a) authorized respon- dent to credit petitioners’ 1997 overpayment against their unpaid 1990 liability.

Petitioners contend that the Court has jurisdiction pursuant to section 6404(g), and the Commissioner committed an abuse of discretion by failing to abate the interest under either section 6404(a) or (e).

The issue is whether the Court has jurisdiction pursuant to section 6404(g) to consider petitioners' claims seeking abatement of interest.

regard to its request for abatement of interest on its unpaid employment taxes for quarters ended December 31, 1998, to December 31, 1999 . On January 31, 2005, petitioner filed with the Court a petition for review of failure to abate interest under section 6404 . The petition alleges, in part : The facts on which petitioner relies to establish that the Commissioner's final determination not to abate interest was an abuse of discretion are as follows : - 3 - (a) The Commissioner erred in asserti

Code in effect for the period under consideration, and all Rule references are to the Tax Court Rules of Practice and Procedure. - 2 - Petitioner initially petitioned this Court for review of respondent’s determination not to abate interest under section 6404. Petitioner then amended her pleading to include a claim for relief from joint and several liability. We must determine whether we have jurisdiction to decide petitioner’s claim as to joint and several liability. Background Petitioner and

Petitioner also argues that section 6404 was enacted to provide taxpayer relief and that there is absolutely no reason to believe that Congress intended to limit section 6404(e)(1)(A) as set forth in Woodral.

Section 6404(e)(1)(A) permits the Commissioner to abate interest on any deficiency attributable in whole or in part to any error or delay by an officer or an employee ofthe IRS, acting in his or her official capacity, in performing a ministe- - 42 - [*42] rial act.° As pertinent here, section 6404(e)(1) provides that for purposes of section 6404(e)(1)(A) "an error or delay shall be taken into account only ifno significant aspect ofsuch error or delay [described in section 6404(e)(1)] can be att

6404(e)(1).8 Thus, for petitioners' tax years 1992, 1993, and 1996 abatement ofinterest is available only ifa ministerial error occurred, while for tax years 1999 and 2000 reliefis available ifan unreasonable ministerial or managerial error is shown. A "ministerial act" is a procedural or mechanical act that does not involve the exercise ofjudgment or discretion and occurs during the processing ofa taxpayer's case after all the prerequisites to the act, such as conferences and review by supervis

The primary issue for decision is whether section 6404(h) applies to denials ofinterest suspension under section 6404(g). Ifso, we must decide whether the notice from which petitioners seek review is a final determination for purposes ofsection 6404(h)(1). All section references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules ofPractice and Procedure. Background The operative facts are set forth in respondent's motion to dismis

404(g) applies. Petitioners allege jurisdiction under section 6404(h) and Rule 280. In addition, petitioners allege that they meet the requirements of section 7430(c)(4)(A)(ii) and that a final determination has been made not to abate interest under section 6404. Each of the Letters 3477 sent to petitioners states: “The judicial review provisions of IRC section 6404(h) do not apply to IRC section 6404(g). Therefore, you do not have appeal rights, nor may you petition the Tax Court for judicial r

However, the statute does not distinguish between determinations where the underlying tax liability is properly at issue and those where it is not. The same 30- day period to appeal the determination applies across the board. See sec. 6330(d). Petitioner also argues that, because the notice determined that the additions to tax for 1992-95 should be abated and the settlement officer issued a separate letter notifying her ofthe abatement on October 22, 2009, she has 30 days from the date ofthe sep

Congress then amended section 6404 by expressly granting us jurisdiction “to determine whether the Secretary’s failure to abate interest * * * was an abuse of discretion”.

Under section 6404(e)(1), as in effect for petitioner's 1994 fiscal year, the Commissioner may abate part or all of an assessment of interest on any deficiency or payment of income taxes to the extent that the deficiency in payment is attributable in whole or in part to any error or delay by an officer or employee of the IRS in performing a ministerial act . Although Congress amended section 6404(e)(1) in 1996 to permit the Commissioner to abate interest with respect to "unreasonable" error or d

P sought an installment arrangement to pay a portion of the liability shown on his tax return. After extensive communications, a 1-year arrangement was agreed upon, and P paid in full the assessed tax and interest. P claims interest abatement under sec. 6404, I.R.C. 1986. R moves for summary judgment. Held: R’s summary judgment motion will be granted except as to two periods regarding which R failed to show entitlement to decision as a matter of law. Edward H. Jones III, pro se. Lisa M. Oshiro,

no error or delay relating to the performance of a ministerial act in processing the examination of your return” and because the IRS could not consider petitioner’s claims for income tax abatements as part of a claim for abatement of interest under section 6404. By letter - 12 - dated April 22, 2002, petitioner requested reconsideration by respondent’s Office of Appeals. On January 9, 2004, respondent sent petitioner a final determination disallowing petitioner’s request for abatement of interes

Background This is an appeal from respondent's determination that petitioner is not entitled to an'abatement of interest on employment taxes under section 6404 for the tax periods ending March 31, 1998, June 30, 1998, September 30, 1998, December 31, - 3 - 1998, March 31, 1999, June 30, 1999, September 30, 1999, and December 31, 1999.

MEMORANDUM FINDINGS OF FACT AND OPINION GOEKE, Judge: Respondent denied in part petitioner's request under section 6404¹ for abatement of interest on his Federal income tax deficiencies for 1983 and 1984.

301.6404-2T(b)(1), Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987).8 In contrast, a decision concerning the proper application of Federal tax law, or other applicable Federal or State laws, is not a ministerial act. See sec. 301.6404-2T(b)(1), Temporary Proced. & Admin. Regs., supra. In the legislative history of section 6404(e), Congress observed that “issuing either a statutory notice of deficiency or 7Sec. 6404(e) was amended by the Taxpayer Bill of Rights 2, Pub. L. 104-

Discussion If the Commissioner abuses his discretion in failing to abate interest under section 6404, this Court may order an abatement.

On September 11, 2002, petitioner filed a Petition for Review of Failure to Abate Interest Under Code Section 6404, which did not comply with the requirements of Rule 281(b).

In the answer, respondent maintained that his determination not to abate interest pursuant to section 6404 was not an abuse of discretion and that the interest for the taxable year 1983 was timely assessed.

cted section 6404(e), it did not intend the provision to be used routinely to avoid payment of interest. Rather, Congress intended abatement of interest to be used sparingly, only where failure to do so “would be widely 8 The final regulations under sec. 6404, as issued on Dec. 18, 1998, contain the same definition of ministerial act. See sec. 301.6404-2(b)(2), Proced. & Admin. Regs. The final regulations generally apply to interest accruing on deficiencies or payments of tax described in sec. 6

Following respondent’s concession that respondent will abate interest for the 3-day period from June 20 through 22, 2001, we determine whether respondent abused his discretion under section 6404 by not abating more of the - 2 - interest.

r December 31, 1997, with respect to tax years beginning after December 31, 1997. See Internal Revenue Service Restructuring 6The Victims of Terrorism Tax Relief Act of 2001 (VTTRA), Pub. L. 107-134, sec. 112(d)(1)(B), 115 Stat. 2435 (2002), amended sec. 6404 by deleting subsec. (h) and redesignating subsec. (i) as subsec. (h). 7Sec. 6404(h) dealing with abatement of interest for Presidentially declared disasters was deleted by VTTRA sec. 112(d)(1)(A), 115 Stat. 2434. The interest abatement prov

or delay resulting from “managerial” or ministerial acts. The amendment applies to interest accruing with respect to deficiencies for taxable years beginning after July 30, 1996, and is inapplicable to the instant case. 5The final regulations under sec. 6404 were issued on Dec. 18, 1998, and generally apply to interest accruing with respect to deficiencies or payments of tax described in sec. 6212(a) for taxable years beginning after July 30, 1996. See sec. 301.6404- 2(d)(1), Proced. & Admin. R

The remaining issue for decision is whether respondent’s denial of interest abatement with respect to petitioners’ income taxes for 1993, 1994, and 1995 was an abuse of discretion under section 6404.2 For the reasons stated herein, we hold that respondent’s refusal to abate the interest on petitioners’ income tax liabilities from December 22, 1996 to August 11, 1999, was an abuse of discretion but that in all other respects the failure to allow abatement was not an abuse of discretion.

r December 31, 1997, with respect to tax years beginning after December 31, 1997. See Internal Revenue Service Restructuring 6The Victims of Terrorism Tax Relief Act of 2001 (VTTRA), Pub. L. 107-134, sec. 112(d)(1)(B), 115 Stat. 2435 (2002), amended sec. 6404 by deleting subsec. (h) and redesignating subsec. (i) as subsec. (h). 7Sec. 6404(h) dealing with abatement of interest for Presidentially declared disasters was deleted by VTTRA sec. 112(d)(1)(A), 115 Stat. 2434. The interest abatement prov

This conclusion is bolstered by the legislative history of section 6404, which states: “if a taxpayer files a return but does not pay the taxes due, this provision would not permit abatement of this interest regardless of how long the IRS took to contact the taxpayer and request payment.” H.

Consequently, respondent’s denial of petitioner’s request to abate interest under section 6404 was not an abuse of discretion.

Generally, the relief provided by section 6404 is not available under those circumstances.

Discussion In his petition to this Court, petitioner argued in relevant part: The Petition for Review of Failure to Abate Interest under Code Section 6404 covers tax year 1982 for which a Notice of Determination was issued and tax years 1980 and 1981 to which 1982 overpayment funds were erroneously transferred.

986-3 C.B. (Vol. 3) 1, 208. Section 6404(e) affords a taxpayer relief only if no significant aspect of the error or delay can be attributed to the taxpayer. In addition, interest may be abated only after the Commissioner 9The final regulations under sec. 6404 were issued on Dec. 18, 1998. The final regulations generally apply to interest accruing with respect to deficiencies or payments of tax described in sec. 6212(a) for taxable years beginning after July 30, 1996. See sec. 301.6404-2(d)(1), P

to December 16, 1994, respondent committed errors or delays while processing their refund claim for 1985; i.e., committed errors or delays in performing ministerial acts. Petitioners specifically complain 8 The final U.S. Treasury regulations under sec. 6404 were issued on Dec. 18, 1998. See sec. 301.6404-2(b)(2), Proced. & Admin. Regs., 63 Fed. Reg. 70012, 70013 (Dec. 18, 1998). The final regulations contain the same definition of a ministerial act as the temporary regulations. Because the fin

terest accruing with respect to deficiencies or payments for tax years beginning after July 30, 1996. Therefore, the amendment is inapplicable to the instant case. See Woodral v. Commissioner, 112 T.C. 19, 25 n.8 (1999). 3 The final regulation under sec. 6404, as issued on Dec. 18, 1998, contains the same definition of ministerial act. The final regulation generally applies to interest accruing on deficiencies or payments of tax for taxable years beginning after July 30, 1996. See sec. 301.6404-

--- MAJORITY --- OPINION Laro, Judge: Petitioners petitioned the Court to review respondent’s determination not to abate interest pursuant to section 6404. Petitioner Dallas Clark also alleges in the petition that she should be relieved from joint liability as to Federal income tax returns which she filed with her now-deceased husband for the relevant years. We must decide whether the Court has jurisdiction to decide Ms. Clark’s claim as to joint liability. We hold that we have jurisdict

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 petitione

s, or their representative, canceled or postponed at least two meetings with Agent Mazon. Nonetheless, any delay caused by petitioners in the instant case is secondary to our more fundamental conclusion that respondent's 3 The final regulation under sec. 6404, sec. 301.6404-2, Proced. & Admin. Regs., was issued on Dec. 18, 1998. See T.D. 8789, 63 Fed. Reg. 70012 (Dec. 18, 1998). The final regulation generally applies to interest accruing on deficiencies or payments of tax described in sec. 6212(

he allowable amount was determined. This delay was not caused by a Service employee’s failure to perform a ministerial act. On November 26, 1999, petitioner filed a petition with this Court for review of respondent’s failure to abate interest under section 6404. See Rule 281(a). The petition disputes the sum of $24,989.86 and alleges, in part, that “The interest calculation is due in part to tax [deficiencies] assessed in error.”12 G. Recomputation of Petitioner’s Liability for Interest Sometime

, did not abuse his discretion in refusing to abate the interest for this time period. Although the 1990 carryback was not applied to the 1988 tax year until March 11, 1996, petitioner concedes that no interest 8 The final Treasury regulation under sec. 6404 was issued on Dec. 18, 1998. The final regulation contains the same definition of ministerial act as the temporary regulation. See sec. 301.6404-2(b)(2), Proced. & Admin. Regs. The final regulation generally applies to interest accruing on d

- 8 - Commissioner’s failure to abate interest under section 6404 was an abuse of discretion.

efore, petitioner's arguments that his employer failed to provide him with a proper Form W-2 and that respondent provided him with misinformation are unavailing. These circumstances occurred before May 10, 1995. 4 The final Treasury regulation under sec. 6404 was issued on Dec. 18, 1998. The final regulation contains the same definition of ministerial act as the temporary regulation. The final regulation generally applies to interest accruing on deficiencies or payments of tax described in sec.

Thus, we lack jurisdiction under section 6404 to decide petitioner’s claim that respondent made a wrongful levy.

404(g), added by section 302(a) of the Taxpayer Bill of Rights 2 (TBOR 2), Pub. L. 104-168, 110 Stat. 1452, 1457 (1996). Section 6404(g) authorizes actions in this Court for review of respondent’s denial of a request for abatement of interest under section 6404. That section provides, in pertinent part, as follows: SEC. 6404(g). Review of Denial of Request for Abatement of Interest.— (1) In general. — The Tax Court shall have jurisdiction over any action brought by a taxpayer who meets the requi

aimed that the proposed levy should be rejected because the case was pending . On April 28, 2005, the Court entered a decision in that case stating that the parties agreed that petitioners were not entitled for 1989 to an abatement of interest under section 6404 . That decision is now final . On February 15, 2005, petitioners tendered to Cochran on Form 656, Offer in Compromise, a written offer to pay $90,258 to compromise their estimated $260,143 liability . The offer was limited to a claim of

g 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).3 3 The final regulations under sec. 6404 contain the same definition of a ministerial act as the temporary regulations. Sec. 301.6404-2(b)(2), Proced. & Admin. Regs. However, the final regulations do not apply in this case because they apply only to (continued...) - 10 - Even wher

Therefore, according to respondent, because the limited exception to section 6404(b) set forth in section 6404(h) is predicated on the issuance of a final determination concerning an interest abatement claim, interest suspension claims under section 6404 (g) dg_not qualify because they are nondiscre_tionary.

When a taxpayer raises in a section 6330 proceeding a claim for spousal reliefunder section 6015 or interest abatement under section 6404, the Internal Revenue Code provides separate and independent bases (besides section 6330(d)(1)) for Tax Courtjurisdiction to review the Conimissioner's determinations concerning relief; namely, section 6015(e) and section 6404(h), respectively.

Abatements ofInterest--Section 6404 Interest normally begins to accrue on a Federal tax liability from the last date prescribed for payment ofsuch tax and continues to accrue, compounding daily, until payment is made.

Abatements ofInterest--Section 6404 Interest normally begins to accrue on a Federal tax liability from the last date prescribed for payment ofsuch tax and continues to accrue, compounding daily, until payment is made.

officer's supplemental 4Petitioner alleged numerous illegal activities undertaken by the revenue agent in connection with the investigation into petitioner's tax returns. - 7 - notice ofdetermination specifically discussed interest abatement under section 6404. On October 20, 2009, petitioner submitted a second OIC,proposing to settle its outstanding liabilities for $18,0005 on grounds ofdoubt as to collectibility and effective tax administration.6 As with the first OIC, petitioner also submitt

SERVED AUG 3 1 2011 - 2 - section 6404 (e)1 relating to 2001, 2002, and 2003 (years in issue).

- 13 - The Sandbergs did not frame their argument in the statute's terms." Their brief neither cites section 6404 nor specifically identifies any act as a ministerial act As we explain below, the Sandbergs--who have the burden of proof--have not shown that the IRS abused its discretion because they have not shown an error or delay in performing a ministerLal act.

Petitioner seeks judicial review under section 6404 (h)(1) and Rule 280(b) .

Although the progress of the examination appears to have been impaired by quality issues that required the case files to be returned to EO Collins on two separate occasions, we do not read section 6404 to permit abatement simply because the reviewing agent may have made a mistake in analyzing or applying relevant law.

lified for an abatement of interest for reasons other than those described in section 6404(e) . We disagree . We find nothing to suggest that Driver .believed that petitioners ' sole remedy for interest abatement in this case rested on the rules of section 6404 (e) . In fact, regardless of the rules of section 6404 (e), Driver obviously would have abated interest in this case had she agreed to let petitioners compromise their liability by paying less than the amount of interest included within t

The issue for our determination is whether respondent abused his discretion under section 6404 b y IEIWW JUL 2 5 2007 - 2 - failing to abate assessments of interest relating to petitioner's 1984, 1985, and 1986 taxable years .

- 12 - under section 6404 respondent ' s failure to abate those additions to tax .

Abatement of Interest Under Section 6404(e ) Section 6404(e)(1) provides that the Secretary may abate the assessment of interest that accrued as the result of any unreasonable error or delay by an officer or employee of the Internal Revenue Service in performing a ministerial or managerial act .

The Commissioner mailed to petitioner a notice of final determination not to abate interest under section 6404, relating to interest that - 2 - accrued with respect to petitioner’s taxable years 1998 and 1999.

Section 6404 As applicable to the years for which petitioners seek relief, section 6404(e)(1) provided as follows:3 2 Petitioners also complained of erroneous advice provided by the Internal Revenue Service that resulted in an increased tax liability for their 1993 taxable year. At trial, petitioners did not rely on that allegation as a ground for

s underlying liability for the penalty. Accordingly, this is not in issue. Mr. Weiler's contention that the interest attributable to the $4,841 adjustment should be abated is broad enough to be considered a request for interest abatement pursuant to section 6404. The concession in the stipulation of facts regarding the adjustments determined in the notice of deficiency can be read as not including the issue of interest abatement. For the sake of completeness, we shall address this issue. The Tax

Discussion Where the Commissioner abuses his discretion in failing to abate interest under section 6404, this Court may order abatement.

s underlying liability for the penalty. Accordingly, this is not in issue. Mr. Weiler's contention that the interest attributable to the $4,841 adjustment should be abated is broad enough to be considered a request for interest abatement pursuant to section 6404. The concession in the stipulation of facts regarding the adjustments determined in the notice of deficiency can be read as not including the issue of interest abatement. For the sake of completeness, we shall address this issue. The Tax

MEMORANDUM FINDINGS OF FACT AND OPINION LARO, Judge: Petitioners petitioned $he Court under section 6404 (h) to review the Commissioner' s determination not to abate interest for 1995 through 1997.

On September 13, 2000, respondent issued to petitioner a notice of final determination under section 6404 disallowing his claim for abatement of interest for 1982 and 1983.

e interest would be widely perceived as grossly unfair.” H. Rept. 99-426, at 844 (1985), 1986-3 C.B. (Vol. 2) 1, 844; S. Rept. 99-313, at 208 (1986), 1986-3 C.B. (Vol. 3) 1, 208. Yet, Congress intended that abatement would 3 Final regulations under sec. 6404, issued in 1998 and generally applicable to interest accruing on deficiencies or payments of tax for taxable years beginning after July 30, 1996, provide the same definition of ministerial act. Sec. 301.6404- 2(b)(2), Proced. & Admin. Regs.

Discussion Petitioner argues that section 6404 provides that the Commissioner may abate interest attributable to unreasonable error or delay and that in his case there was "continuous delay after delay after delay, and error after error after error." It appears to the Court from the record that petitioner's complaint is that it took too long to resolve his tax matters for 1990 and

Final regulations under section 6404, issued in 1998 and generally applicable to interest accruing on deficiencies or payments of tax for taxable years beginning after July 30, 1996, provide the same definition of ministerial act.

On October 9, 1999, petitioner’s Petition for Review of Failure to Abate Interest Under Code Section 6404 on the assessed tax deficiencies for 1992 and 1993 was filed with the Court.

that respondent levied on petitioner’s property twice for petitioner’s 1993 tax liability, but that proceeds from the second levy were used to satisfy petitioner’s undisputed tax liabilities for subsequent years. Petitioner brought this action under sec. 6404 seeking review of respondent’s failure to abate interest. In the instant case, we lack jurisdiction to decide petitioner’s claim that respondent made a wrongful levy. See sec. 6404(i); Krugman v. Commissioner, 112 T.C. 230, 236 (1999). - 8

Commissioner, supra at 22-23, that “Section 6404(g) clearly grants the Court jurisdiction to review the Commissioner’s failure to abate interest under all subsections of section 6404 and does not limit the Court’s jurisdiction to review cases 2 Sec.

ptember 1987, Agents Dosil and McBrien spent most of their time considering whether to allow the R&D expense and whether to determine penalties. He also testified that work on the TLP file proceeded at a steady pace as 9 The final regulations under sec. 6404 were issued on Dec. 18, 1998. The final regulations generally apply to interest accruing on deficiencies or payments of tax described in sec. 6212(a) for tax years beginning after July 30, 1996. See sec. 301.6404-2(d)(1), Proced. & Admin. Re

ptember 1987, Agents Dosil and McBrien spent most of their time considering whether to allow the R&D expense and whether to determine penalties. He also testified that work on the TLP file proceeded at a steady pace as 9 The final regulations under sec. 6404 were issued on Dec. 18, 1998. The final regulations generally apply to interest accruing on deficiencies or payments of tax described in sec. 6212(a) for tax years beginning after July 30, 1996. See sec. 301.6404-2(d)(1), Proced. & Admin. Re

Although petitioner contacted respondent numerous times in connection with his 1992 return, the evidence in the record shows that respondent replied to petitioner’s correspondence in a timely manner that 3On Dec. 18, 1998, the final regulation under sec. 6404 was issued. “Ministerial act” is defined in the same manner in the final regulation as in the temporary regulation. - 8 - was not arbitrary, capricious, or without sound basis in fact or law. See Woodral v. Commissioner, supra at 23. Respon

tioners acknowledged that they made no attempt to contact the Miami Appeals Office to schedule a meeting or voice any concerns over not having been contacted. Although petitioners contend they desired an earlier 5 The final Treasury regulation under sec. 6404 was issued on Dec. 18, 1998. The final regulation contains the same definition of ministerial act as the temporary regulation. See sec. 301.6404-2(b)(2), Proced. & Admin. Regs. The final regulation generally applies to interest accruing on

er to abate interest only if the Commissioner exercised his discretion arbitrarily, capriciously, or without sound basis in fact or law. See Woodral v. Commissioner, supra. Our review is limited to whether there 6 The final Treasury regulation under sec. 6404 was issued on Dec. 18, 1998. The final regulation contains the same definition of ministerial act as the temporary regulation. The final regulation generally applies to interest accruing on deficiencies or payments of tax described in sec.

The issue for decision is whether the Commissioner committed an abuse of discretion under section 6404 by failing to abate assessments of interest relating to employment taxes.

abatement of interest. Section 6404(g), as enacted by the Taxpayer Bill of Rights 2 (TBOR 2), Pub. L. 104-168, sec. 302(a), 110 Stat. 1452, 1457 (1996), authorizes us to review denials by the Commissioner of requests for abatement of interest under section 6404. White v. Commissioner, 109 T.C. 96 (1997); Banat v. Commissioner, 109 T.C. 92 (1997); Goettee v. Commissioner, T.C. Memo. 1997-454. Section 6404(g) provides, in pertinent part, as follows: (g) Review of Denial of Request for Abatement o

ddresses petitioner's contention that he is not liable for interest based upon the Form 4549 that he executed for the taxable year 1991. The letter does not indicate that any consideration was given to a request for abatement of interest pursuant to section 6404. In the absence of a specific request for abatement of interest and the Commissioner's final determination denying such request, the Court does not have jurisdiction to consider this matter pursuant to section 6404(g). - 8 - In sum, we h

ate of section 6404(g), added by section 302(a) of the Taxpayer Bill of Rights 2 (TBOR 2), Pub. L. 104-168, 110 Stat. 1452, 1457 (1996). Section 6404(g) authorizes us to review denials by the Commissioner of requests for abatement of interest under section 6404. Section 6404(g) provides, in pertinent part, as follows: SEC. 6404(g). Review of Denial of Request for Abatement of Interest.— (1) In general. — The Tax Court shall have jurisdiction over any action brought by a taxpayer who meets the re

2006-273, the Second Circuit held that a taxpayer who asked for interest abatement during his CDP hearing was effectively asking for relief under section 6404 even if he didn’t mention that section.

e the interest assessment on equitable grounds. This we cannot do because the Tax Court is a court of law, not equity. Stovall v. Commissioner, 101 T.C. 140, 149–50 (1993). Petitioner failed to establish that the IRS abused the discretion granted by section 6404. We therefore sustain respondent’s determination. To reflect the foregoing, An order will be issued denying petitioner’s Motion to Shift Burden of Proof, and decision will be entered for respondent.

Petitioner asks that we abate interest on the 2011 deficiency un- der section 6404, but we lackjurisdiction to do this in a deficiency case.

In 1996 Congress supplied the Tax Court withjurisdiction through what is now designated section 6404(h) to determine whether the IRS's failure to abate interest under section 6404 constituted an abuse ofdiscretion.

n "over issues concerning interest computed under section 6601." Urbano v. Commissioner, 122 T.C. 384, 390 (2004). The Court hasjurisdiction under section 6404(h)(1) to review for abuse ofdiscretion the Commissioner's refusal to abate interest under section 6404. Woodral v. Commissioner, 112 T.C. at 22-23. However, petitioner has neither argued nor shown that section applies. Instead, petitioner generally argues that the assessment ofthe interest is inappropriate because respondent had the use o

MEMORANDUM FINDINGS OF FACT AND OPINION PARIS, Judge: Respondent issued notices offinal determination denying petitioners' claim under section 6404¹ for abatement ofinterest on Federal income ¹Unless otherwise indicated, all section references are to the Internal Revenue Code, as amended and in effect at all relevant times, and all Rule references are to the Tax Court Rules ofPractice and Procedure.

In this instance, however, we considerthe costs and fees a taxpayer may recover under section 7430 in an interest abatement proceeding and the interplay between section 6404 and section 7430.

Section 6404 Section 6404(e)(1) provides in relevant part: (1) In general.--In the case ofany assessment ofinterest on-- (A) any deficiency attributable in whole or in part to any unreasonable error or delay by an officer or employee ofthe Internal Revenue Service (acting in his official capacity) in performing a ministerial or managerial act, or (

Ifthe Commissioner issues a notice ofdetermination denying a taxpayer's request for abatement ofinterest under section 6404, and ifthe taxpayertimely files a petition for review, section 6404(i)7 grantsjurisdiction to this Court to determine whetherthe Commissioner's failure to abate interest was an abuse of discretion ifthe taxpayermeets the requirements referred to in section 7430(c)(4)(A)(ii), see section 6404(i)(1) (relating to certain net worth require

e sec. 6651(a)(1) addition to tax. Moreover, petitioner has not shown in what manner the statutory interest might be in error for either 2006 or 2007; the record does not suggest that petitioner has requested respondent to abate interest pursuant to sec. 6404. - 12 - [*12] the Appeals officer's determination under "this section"; i.e., section 6330. By virtue ofsection 6320(c), thisjurisdiction extends to an Appeals Office determination under section 6320. Consequently, we lackjurisdiction in th

erest. In order for this Court to havejurisdiction over such a request, (continued...) - 51 - [*51] To reflect the foregoing, Decision will be entered under Rule 155. 22(...continued) respondent must first issue a notice offinal determination under sec. 6404, and a Tax Court petition for review ofthat determination must be filed. Sec. 6404(h)(1); Rule 280; Williams v. Commissioner, 131 T.C. 54, 55-56 (2008). The record does not establish that respondent issued a notice offinal determination unde

ord before us, we find that respondent's Appeals Office did not abuse its discretion in determining to sustain respondent's proposed levy before considering petitioner's June 23, 2010 offer-in-compromise.4 We now address petitioner's position that respondent abused respondent's discretion in failing to abate any additions to tax and interest under section 6404 with respect to his taxable year 2008.

that remains in dispute is for accrued interest and late payment additions to tax. Apart from his contention that he should have overpayment credits available to satisfy these liabilities, petitioner has not raised any interest abatement claim under sec. 6404 and has not challenged respondent's imposition ofthe late payment addition to tax. - 6 - tax liability for years that are the subject ofthe notice ofdetermination. Freije v. Commissioner, 125 T.C. 14, 27 (2005). We do not havejurisdiction,

Claims in docket No. 13926-10W, which is not at issue in this case. Petitioner argues in this case that the earlier erroneous advice regarding another whistleblower claim constitutes a "penalty" imposed upon him which the IRS must abate pursuant to sec. 6404 (f). The IRS has not assessed a penalty against petitioner. We have no jurisdiction to abate a penalty which has not been assessed, nor do we have jurisdiction over a failure by the IRS to abate a(cid:16)042penalwtyhich has not been assessed

Instead, relying upon the language of section 6404, Pacific West argues that none of the situations that allow for an 'abatement apply to the second quarter of 2003.

6404 does not allow for an abatement of petitioner's interest. The issue that petitioner wishes to raise has been addressed and decided contrary to his position. Interest on the sec. 6672 penalty accrues by operation of statute. Sec. 6601(e) (2). Because the statute makes the imposition of interest mandatory, respondent must assess interest on

6404 (h); Rules 280-284. Thus, we are bound by our jurisdictional limits and cannot adjudicate petitioner's request to suspend the accrual of interest. We also note that, from the record, it appears that petitioner is confused as to the amount respondent claims is due. Ä tax "deficiency" is defined by statute, see sec. 6211(a), and does not ne

-percent-of-interest negligende penalty. The IRS also argues that Bang' s complaint -over the unreasonableness of the accrual of interest was not made with sufficient specificity at the hearing to be ,considered a claim for interest abatement under section 6404 (e) . According to the IRS, Bang failed to specify grounds on which an interest abatement claim could be granted, such as a specific terror or delay caused by a ministerial act of the IRS. The IRS also argues that even if the Court could

is de novo. See Porter v. Commissioner, 132 T.C. "A taxpayer may also seek such relief in a petition for review of a collection action, see secs. 6320(c), 6330(c) (2) (A) (i), or as an affirmative defense in a matter properly before this Court under sec. 6404 (relating to the Commissioner's determination not to abate interest), Estate of Wenner v. Commissioner, 116 T.C. 284, 288 (2001). - 19 - 203, 210 (2009); Alt v. Commissioner, supra at 313-315. Although the parties disagree regarding the sta

erences are to the Tax Court Rules of Practice and Procedure, and all section references are to the Internal Revenue Code as amended . ' VED AUG 11 Z010 - 2 from a petition for .judicial review of the Commissioner's failur e to abate interest under section 6404 . See also Rule 280 . The issue for decision is whether respondent's determination not t abate interest with respect to petitioners' 1993 and 1994 Federal income tax liabilities was an abuse of discretion . Background The record consists

Section 6404 (e) provides a taxpayer relief only if no significant aspect of th error or delay can be attributed to the taxpaye r and only aft~,r the Commissioner has contacted the taxpayer in writing abou the deficiency or payment in question . H . Rept . 99-426, at 8 4 (1985), 1986-3 C .B . (Vol . 2) 1, 844 ("This provision do s not therefore per

nce .Contracts, etc ., had .been issued and that she was given bad' advice. about the filing of(cid:127)a ..Form 8606 and the amendment of-her 1997 return . Neither of,those circumstances, however, would give rise to .an abatement of interest under section 6404 . in .particular,. advicelor a decision involving the proper application of.tax law or procedure is 7We note that in the context of this proceeding concerning our review of respondent's denial of a request for abatement, we are without ju

d the concession, because they also sought relief from the interest accruing on the underpayment and to have the deficiency reduced. In this proceeding, however, - 5 - we have no jurisdiction over interest that has not been assessed. See generally sec. 6404; Williams v. Commissioner, 131 T.C. 54, 55-56 (2008). The correspondence between petitioners and the IRS I representatives, therefore, is not relevant to the issues that we decide. Petitioners have also referred to their inability to pay the

Jurisdiction Under Section 6404 Petitioners argue that respondent's motion should be denied because section 6404(h)(1) provides a foundation for the Court's jurisdiction .

$ tUU9 2 - Ball's (the estate) claim for abatement of interest pursuant to the provisions of section 6404 was an abuse of discretion .

During the Appeals Office hearing, although petitioners complained about the penalties, additions to tax, and interest that had accrued against them for the years 1999, 2001, and.2002, petitioners never'raised a-specific claim for abatement under section 6404 of penalties, additions to tax, or interest .

5 Appeals process Given that the record contains no evidence that respondent committed any ministerial or managerial acts requiring abatement of interest under section 6404, we are unable to offer them further relief .

" The Court .has jurisdiction under section 6404(h) to review the Commissioner ' s failure to abate interest under all subsections of .section 6404, and our jurisdiction is not.

13 , 1987) In 1996 Congress amended section 6404 (e)(1) to permit abatement of interest that accrues as a result of an "unreasonable" error or delay in performing a ministerial or "managerial" act .

1994) ; (4) refuse to abate interest under section 6404, e .g ., Goettee v .

986). In any event, petitioner and intervenor have not met the jurisdictional prerequisites for bringing an action for review of failure to abate interest, inasmuch as there is no evidence that respondent issued a notice of final determination under sec. 6404, and no corresponding Tax Court petition has been filed for review of respondent’s failure to abate interest. - 13 - To reflect the foregoing, An appropriate order will be entered.

ent provided the requisite notices of the administrative and judicial proceedings with respect to petitioners ' income tax liability for 1984 ; (2) whether petitioners are liable for the increased rate of interest on tax-motivated transactions under section 6621 (c) ;2 (3) whether respondent abused his discretion in failing to abate interest under section 6404 ( e) ; and (4) whether petitioners are liable for the addition to tax under section 6651 (a)(3) .

ect of a decision entered February 9, 2005, in an abatement action brought by petitioners in this Court . The decision provided that, with respect to the tax years 1984, 1985, and 1986, petitioners are not entitled to an abatement of interest under section 6404 . In the notices of determination sent March 3, 2006, the offer-in-compromise was rejected as follows : Offers of Collection Alternatives We considered your offer of $20,652 dated September 27, 2005 and were not able to accept the offer u

We find that the dela in the distribution of proceeds by the bankruptcy trustee is no grounds for the abatement of interest under section 6404 or for otherwise relieving petitioners from liability for the interest .

1994); (4) refuse to abate interest under section 6404, e.g., Goettee v.

6 Section 6404 authorizes the abatement of interest, penalties, or additions to tax in limited circumstances . Section 6404(e) authorizes the Commissioner to abate interest assessments for taxable years beginning after December 31, 1978, that are attributable to errors or delays by the Internal Revenue Service (Service) . Section 6404(f) authorizes t

6404 was amended by the Internal Revenue Service Restructuring and Reform Act of 1998, Pub . L . 105-206, sec . 3305(a), 112 Stat . 743 . One of the changes redesignated forme r sec . 6404(g) as sec . 6404(h), effective for tax years ending after July 22, 1998 . 3 Petitioner chose not to disclose information because he feared that disclosure o

' Rule 331 (b)(4) applies . Therein, it is provided that any issue not raised in a taxpayer's petition is to be deemed conceded . Because petitioner did not raise interest abatement in her petition, petitioner may not now do so . See Poindexter v . Commissioner, 122 T . C . 280, 285-286 (2004 ), affd . 132 Fed. Appx . 919 (2d

In any event, assuming arguendo that the record established that petitioner raised interest abatement at the CDP hearing, that we have jurisdiction under section 6404 to consider petitioner's request for interest abatement, see Washington v .

rest is charged by law. Even if I am able to provide you with a favorable decision, you must pay the interest due on the tax paid after it was due on 4/15/2000.” A taxpayer may, under certain circumstances, qualify for an abatement of interest under section 6404. A taxpayer, however, is not eligible for such consideration if he files a return but does not pay the taxes due. Downing v. Commissioner, 118 T.C. 22 (2002); H. Conf. Rept. 99-841 (Vol. II), at II-811 (1986), 1986-3 C.B. (Vol.4) 1, 811.

Second, section 6404(h)(1) provides the Tax Court with jurisdiction to review whether the Commissioner's refusal to abate interest under section 6404 was an abuse of discretion .

There is no provision under section 6404 or the regulations promulgated thereunder that allows for the abatement of interest due to financial hardship.

On April 13, 2005, petitioners' imperfect petition seeking review of respondent's determination not to abate interest under section 6404 was filed .

In their amended petition, petitioners seek the Court's "Review of [respondent's] Failure to Abate Interest Under Code Section 6404 ." The amended petition was filed in response to a letter to petitioners dated January 18, 2005, entitled Full Disclosure - Final Determination, in which petitioners were advised that the final determination of the Internal Revenue Service (IRS) was to deny their request for an abatement of interest .

Petitioners requested an abatement of interest with respect to underpayments for 1978, 1979, 1981, 1982, and 1983, which respondent partially disallowed, and petitioners petitioned this Court under section 6404 to review that disallowance as to all 5 years.

The Court considers petitioner’s request for abatement of the interest for 1997, 1998, and 2000, to be a request for abatement of interest under section 6404, and the Court has jurisdiction under section 6404(i) to consider that request.

t to understatements of tax attributable to certain erroneous items on 5Additionally, we have held that we may address a claim for relief from joint and several liability pleaded as an affirmative defense in a matter properly before this Court under sec. 6404 (relating to the Commissioner’s determination not to abate interest). Estate of Wenner v. Commissioner, 116 T.C. 284, 288 (2001). 6Sec. 6015 was enacted as part of the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 1

Petitioners seek an abatement of all penalties and interest under section 6404 with respect to their taxable years 1998 and 1999 and claim that respondent’s failure to do so amounts to an 4Petitioners petitioned the Court challenging the underlying tax deficiencies; however, they have since stipulated to the underlying deficiencies and seek only an abatement of interest and penalties.

uestion of abatement of interest and additions to tax. A. Abatement of Interest We have jurisdiction over petitioners’ request for abatement of interest because the Court has jurisdiction to review the Commissioner’s refusal to rebate interest under section 6404. Katz v. Commissioner, 115 T.C. 329, 340-341 (2000); Moore v. Commissioner, 114 T.C. 171, 175 (2000). This Court may order an abatement of interest if the Commissioner abuses his discretion in failing to abate interest. Sec. 6404(h)(1).

Petitioners requested an abatement of interest with respect to underpayments for 1978, 1979, 1981, 1982, and 1983, which respondent partially disallowed, and petitioners petitioned this Court under section 6404 to review that disallowance as to all 5 years.

reported and assessed, but unpaid, income tax liability amounts to an informal claim for abatement. See Fayeghi v. Commissioner, T.C. Memo. 1998-297, affd. 211 F.3d 504 (9th Cir. 2000). Because such a claim has no formal procedural significance, see sec. 6404 (b), presumably it is not subject to the Appeals process. period" (sòfnetimes, simply, assessed amounts.) . Thus, for the majo(city, in the context of a tax that is subject to the defigiency procedures (such às the income tax-), the term "u

- 13 - Assuming arguendo (1) that the record before the Court had established that petitioner raised such an issue at his CDP Hearing, (2) that the Court considered petitioner's request to be a request for abatement of interest under section 6404, and (3) that the Court has jurisdiction under section 6404(i) to consider that request, see Washington v.

As another example, section 6404 authorizes this Court to “determine” whether the Secretary’s refusal to abate interest was an abuse of discretion.

The APA d'oes not apply to challenges of the Commissioner's denials of requests to abate interest under section 6404, which are reviewed for abuse of discretion.

123, 130 (1999) (declining to decide whether a final notice of determination under section 6404 was issued when the Court lacked subject matter jurisdiction))).

But his only evidence of this intent is a quote that the purpose of amending section 6404 was “to provide for increased protections of taxpayer rights in complying with the Internal Revenue Code .

Petitioner’s petition seeking review of respondent’s failure to abate interest under section 6404 was filed with this Court on June 30, 2003.

As another example, section 6404 authorizes this Court to “determine” whether the Secretary’s refusal to abate interest was an abuse of discretion.

erms that the court will reconsider the interest for the amount owed.”4 As we understand petitioner’s position in the petition, he concedes that he owes the unpaid liability for 1997 but is asking the Court to abate some or all of the interest under section 6404.5 The record does not establish that petitioner 4In the petition, petitioner further alleged that “the company [that he worked for during the year at issue] was responsible for any and all taxes other than FICA, Social Security, etc.” We

and several liability where “it is inequitable to hold the individual 3Additionally, we have held that we may address a claim for relief from joint and several liability pleaded as an affirmative defense in a matter properly before this Court under sec. 6404 (relating to the Commissioner’s determination not to abate interest). Estate of Wenner v. Commissioner, supra at 288. - 6 - liable for any unpaid tax or any deficiency (or any portion of either)”. (Emphasis added.) Congress did not limit eq

We have previously held that we do not have jurisdiction under section 6404 to review the Commissioner’s failure to abate penalties and additions to tax.

(e)(1)(A) to encompass all subsections of section 6015); Butler v. Commissioner, 114 T.C. at 290 (same); Woodral v. Commissioner, 112 T.C. 19, 22-23 (1999) (interpreting reference to “this section” in section 6404(g) to encompass all subsections of section 6404). Accordingly, we conclude that, in enacting section 6015, Congress did not intend to limit our authority to review claims for relief from joint and several liability to deficiency situations. B. Amendment of Section 6015(e) Subsequent to

: This case is before us on respondent's motion to dismiss. The issue presented is whether we lack jurisdiction over petitioner's claims that an addition to tax under section 6654(a) should be waived and that assessed interest should be abated under section 6404. - 2 - Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the year in issue. Background As a result of an error by petitioner in the computation of his estimated income tax due January 15, 1

at 20), on the record before us, we find that petitioner has not established, or even alleged, a ministerial error within the meaning of section 6404(e) requiring an abatement of such inter- est.

Commissioner, supra at 22-23, that “Section 6404(g) clearly grants the Court jurisdiction to review the Commissioner’s failure to abate interest under all subsections of section 6404 and does not limit the Court’s jurisdiction to review cases arising only under section 6404(e).” (Emphasis added.) We also note that Congress recently amended section 6015(e)(3)(A) in recognition of the distinction between the terms “section” and “subsection”.

After respondent issued a final determination denying petitioner’s request to abate interest, a timely petition for review under section 6404 was filed with this Court.

t owe the tax but retains possession of such property for the account of another taxpayer (petitioner herein) against whom there is no assessment. There is no indication in the record that the assessment against Sandra was abated as authorized under sec. 6404, nor is there any indication in the record that petitioner instituted an action against the IRS under sec. 7426 for the return of wrongfully levied property. - 17 - that petitioner cannot be assessed and the levied funds cannot be applied t