                        T.C. Memo. 1997-454



                      UNITED STATES TAX COURT


    JOHN G. GOETTEE, JR., and MARIAN GOETTEE, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 26591-96.                     Filed October 6, 1997.


     John G. Goettee, Jr., and Marian Goettee, pro se.

     Pamela S. Wilson and Helen F. Rogers, for respondent.


                        MEMORANDUM OPINION

     PANUTHOS, Chief Special Trial Judge:     This matter is before

the Court on respondent's Motion to Dismiss for Lack of

Jurisdiction and respondent's Motion for Partial Summary

Judgment.   Respondent asserts that the Court lacks jurisdiction

pursuant to section 6404(g) to review respondent's denial of

petitioners' requests for abatement of interest.1    In the

     1
        All section references are to the Internal Revenue Code
as amended, unless otherwise indicated. All Rule references are
to the Tax Court Rules of Practice and Procedure.
                                - 2 -


alternative, respondent seeks partial summary judgment that

section 6404(e) does not provide authority for respondent to

abate interest assessed against petitioners for the taxable year

1978.

Background

     On October 23, 1995, petitioners filed Forms 843 (Claim for

Refund and Request for Abatement) requesting that respondent

abate interest for the taxable years 1978, 1979, 1981, 1982, and

1983.   On February 5, 1996, respondent issued a letter to

petitioners proposing to disallow petitioners' requests for

abatement of interest.    Petitioners immediately requested further

administrative review and the matter was assigned to Appeals

Officer Samuel E. Fish.

     Upon review of the matter, Appeals Officer Fish advised

petitioners that, in order to preserve their right for review in

the Tax Court, petitioners should withdraw their original

requests for abatement and file new requests after July 30, 1996.

Although petitioners did not formally withdraw their original

requests for abatement, respondent concedes that petitioners'

original requests were never formally disallowed.   In any event,

on October 3, 1996, petitioners filed a second set of requests

for abatement consistent with the advice of Appeals Officer Fish.

On November 13, 1996, respondent issued a notice of disallowance

to petitioners stating that petitioners' requests for abatement
                               - 3 -


of interest were only partially allowed insofar as respondent

agreed to abate interest accruing during the period October 4,

1995 to September 20, 1996--which for the most part coincided

with the period that petitioners' requests for abatement were

under consideration by respondent.

     On December 6, 1996, petitioners filed with the Court a

petition for review of respondent's denial of their requests for

abatement of interest.2   After filing an answer to the petition,

respondent filed a Motion for Partial Summary Judgment that

petitioners' request for abatement respecting the taxable year

1978 was properly denied on the ground that respondent lacks the

authority to abate interest for the taxable year 1978.3

Petitioners filed an opposition to respondent's Motion for

Partial Summary Judgment.

     This matter was called for hearing at the Court's motions

session held in Washington, D.C.   Counsel for respondent appeared

at the hearing and raised the argument that the Court lacks

jurisdiction under section 6404(g) to consider the petition filed




     2
        At the time the petition was filed, petitioners resided
at New Windsor, Maryland.
     3
        At the hearing of this matter, counsel for respondent
stated that respondent had erred insofar as the Nov. 13, 1996,
notice of disallowance provides for the abatement of a portion of
the interest assessed against petitioners for the taxable year
1978. However, counsel for respondent stated that respondent
would not attempt to reverse the erroneous abatement.
                               - 4 -


herein.   Petitioner John G. Goettee, Jr., appeared at the hearing

and offered argument in opposition to respondent's position.

     Following the hearing, respondent filed a Motion to Dismiss

for Lack of Jurisdiction and a memorandum in support of the

motion.   Petitioners filed an objection to respondent's motion to

dismiss, to which respondent filed a reply.

Discussion

     As a preliminary matter, we must decide whether the Court

has jurisdiction over this matter.     The Tax Court is a court of

limited jurisdiction, and we may exercise our jurisdiction only

to the extent authorized by Congress.     Naftel v. Commissioner, 85

T.C. 527, 529 (1985).

     Section 6404(g), codified under section 302(a) of the

Taxpayer Bill of Rights 2 (TBOR 2), Pub. L. 104-168, 110 Stat.

1452, 1457 (1996), provides the Tax Court with authority to

review the Commissioner's denial of a taxpayer's request for

abatement of interest.   Section 6404(g) provides in pertinent

part as follows:

          (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 requirements referred to in section
     7430(c)(4)(A)(ii) to determine whether the Secretary's
     failure to abate interest under this section was an
     abuse of discretion, and may order an abatement, if
     such action is brought within 180 days after the date
     of the mailing of the Secretary's final determination
     not to abate such interest. * * *
                               - 5 -


Section 302(b) of TBOR 2, 110 Stat. 1458, provides that section

6404(g) applies "to requests for abatement after the date of the

enactment of this Act."   TBOR 2 was enacted on July 30, 1996.

     Respondent maintains that we lack jurisdiction to review the

denial of petitioners' requests for abatement of interest on the

ground that petitioners' original requests for abatement of

interest were filed prior to July 31, 1996.     Respondent further

contends that, despite the Appeals officer's advice to the

contrary, petitioners may not refile their requests for abatement

after July 30, 1996, for the purpose of invoking the Court's

jurisdiction.

     In Banat v. Commissioner, 109 T.C. 92 (1997), we considered

the question of the Court's jurisdiction to review the

Commissioner's denial of a request for abatement of interest

where the request was filed prior to July 31, 1996, but denied by

the Commissioner after July 30, 1996.     The Commissioner took the

position that the Court lacked jurisdiction to review the denial

of the request for abatement in question because the request had

been filed prior to July 31, 1996.     In rejecting the

Commissioner's position, we concluded that section 302(b) of TBOR

2, which establishes the effective date of section 6404(g),

allows the Court to exercise its jurisdiction with respect to

requests for abatement of interest pending on July 31, 1996.     We

concluded that the Commissioner's interpretation of the provision
                               - 6 -


was overly restrictive and inconsistent with Congress' intent "to

provide for increased protections of taxpayer rights in complying

with the Internal Revenue Code and in dealing with the Internal

Revenue Service (IRS) in its administration of the tax laws."     H.

Rept. 104-506, at 22 (1996).   Banat v. Commissioner, supra at 95.

But cf. White v. Commissioner, 109 T.C. 96 (1997) (the Court

lacks jurisdiction to review a request for abatement of interest

that was both filed and denied prior to July 31, 1996).

     Consistent with our holding in Banat v. Commissioner, supra,

we reject respondent's contention that we lack jurisdiction to

review the denial of petitioners' requests for abatement.    In

particular, there is no dispute that petitioners' requests for

abatement were pending on July 31, 1996.   Further, on November

13, 1996, respondent issued a notice of disallowance to

petitioners that constitutes a final determination to partially

deny petitioners' requests for abatement pursuant to section

6404(e).   In light of petitioners' timely petition for review, we

hold that petitioners properly invoked the Court's jurisdiction

pursuant to section 6404(g).   See Rule 280(b)(2).

     We now turn to respondent's Motion for Partial Summary

Judgment that petitioners are not entitled to abatement of

interest for the taxable year 1978 on the ground that respondent

lacks authority to abate interest for that year.
                                - 7 -


     Summary judgment is intended to expedite litigation and

avoid unnecessary and expensive trials.    Florida Peach Corp. v.

Commissioner, 90 T.C. 678, 681 (1988).    Summary judgment may be

granted with respect to all or any part of the legal issues in

controversy "if the pleadings, answers to interrogatories,

depositions, admissions, and any other acceptable materials,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that a decision may be

rendered as a matter of law."   Rule 121(b); Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965 (7th

Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754 (1988);

Naftel v. Commissioner, 85 T.C. 527, 529 (1985).    The moving

party bears the burden of proving that there is no genuine issue

of material fact, and factual inferences will be read in a manner

most favorable to the party opposing summary judgment.     Dahlstrom

v. Commissioner, 85 T.C. 812, 821 (1985); Jacklin v.

Commissioner, 79 T.C. 340, 344 (1982).

     Petitioners' requests for abatement of interest are based

upon section 6404(e)(1) which provides authority for the

Commissioner to abate the assessment of interest and deficiency

attributable to errors and delays by an officer or employee of

the Internal Revenue Service in performing a ministerial act.4

     4
        Although not at issue here, we observe that sec. 6404(d)
and (e)(2) also provides authority for the Commissioner to abate
assessments of interest. Sec. 6404(d) applies where the
                              - 8 -


Section 6404(e) was enacted under the Tax Reform Act of 1986,

Pub. L. 99-514, sec. 1563(a), 100 Stat. 2085, 2762, and applies

to interest accruing with respect to deficiencies or payments for

tax years beginning after December 31, 1978.   See Tax Reform Act

of 1986, Pub. L. 99-514, sec. 1563(b), 100 Stat. 2085, 2762.

     Petitioners object to respondent's Motion for Partial

Summary Judgment on the ground that the assessment for interest

for the taxable year 1978 is attributable to the disallowance of

net operating losses arising in 1980 and 1981 that petitioners

carried back to the taxable year 1978.

     Based upon our review of section 6404(e), we hold that

respondent lacks the authority to grant a request for abatement

of interest for the taxable year 1978.   Although the deficiency

that respondent assessed against petitioners for the taxable year

1978 is attributable to the disallowance of net operating losses

for later years, it nevertheless is clear that the interest in

question, which is computed from the due date of petitioners' tax

return for 1978, is attributable to tax due for the 1978 taxable

year.   See Bankamerica v. Commissioner, 109 T.C. 1 (1997); Fluor




assessment is attributable in whole or in part to a mathematical
error if the return was prepared by an officer or employee of the
Internal Revenue Service acting in his official capacity to
provide assistance to taxpayers in the preparation of income tax
returns, and sec. 6404(e)(2) applies with respect to the
assessment of interest on an erroneous refund of $50,000 or less
where the taxpayer has not caused the erroneous refund.
                                 - 9 -


Corp. v. United States, ___ F.3d ___ (Fed. Cir. 1997), and cases

discussed therein.

     We are obliged to apply the law as written.       Because section

6404(e) does not grant authority to the Commissioner to abate

interest accruing on deficiencies for tax years beginning before

January 1, 1979, we decline to graft on to the provision an

exception for interest assessed as the result of the disallowance

of the carryback of net operating losses to the 1978 taxable

year.   Consequently, we shall grant respondent's Motion for

Partial Summary Judgment.

     To reflect the foregoing,

                                         An order will be issued

                                 denying respondent's Motion to

                                 Dismiss for Lack of Jurisdiction

                                 and granting respondent's Motion

                                 for Partial Summary Judgment.
