                        T.C. Memo. 2007-40



                     UNITED STATES TAX COURT



                BERNARD A. KANSKY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 9544-04, 24528-04L.     Filed February 20, 2007.



     Bernard A. Kansky, pro se.

     Michael R. Fiore, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     THORNTON, Judge:   In these consolidated cases, petitioner

seeks review pursuant to sections 6320(c) and 6330(d) of

respondent’s determination sustaining the filing of tax liens

with respect to petitioner’s Federal income taxes for years 1987,

1990, 1991, 1997, 1998, 2000, and 2001; petitioner also seeks

review pursuant to section 6404(h) of respondent’s denial of
                               - 2 -

petitioner’s request to abate interest for tax years 1987, 1990,

and 1991.1

                         FINDINGS OF FACT

     The parties have stipulated some facts, which we incorporate

herein by this reference.   When he filed his petition, petitioner

resided in Needham, Massachusetts.

Petitioner’s Tax Years 1987 Through 1991

     Petitioner has been a practicing attorney for over 40 years.

For tax years 1987 through 1991, petitioner failed to file

Federal income tax returns.   In 1992, respondent issued a summons

directing petitioner to appear at the Stoneham, Massachusetts,

IRS office and produce his records relating to his 1987 through

1991 income.   In response to the summons, on November 12, 1992,

petitioner produced seven or eight boxes of documents relating to

personal expenses but not to his income.    By letter dated

February 8, 1993, respondent’s revenue agent notified petitioner

that the documents he had provided failed to satisfy the summons

and requested petitioner to provide bank deposit records and all

books and records relating to petitioner’s income.    Subsequently,

at some unspecified date, petitioner produced what he

characterizes as “one small shoe box size of records/receipts”.




     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code. All Rule references are to the Tax
Court Rules of Practice and Procedure.
                                - 3 -

       In February 1996, after various meetings with respondent’s

agents, petitioner submitted his delinquent returns for 1987

through 1991.    Petitioner’s cover letter dated February 23, 1996,

and addressed to respondent’s revenue agent, alluded to personal

problems in petitioner’s family as the reason for the untimely

filings and concluded:    “Again, thank you for your

professionalism and patience in the above matter during, and as a

result of the difficulties we have faced”.

       On March 19, 1996, respondent issued a 30-day letter,

proposing adjustments to petitioner’s taxes for 1987 through

1991.    By letter dated March 20, 1996, petitioner protested the

proposed adjustments.

       On September 16, 1998, after consideration of petitioner’s

case by the Appeals Office, respondent issued to petitioner a

notice of deficiency for 1987 through 1991.      On December 14,

1998, petitioner filed a petition in this Court, seeking

redetermination of the proposed deficiencies and additions to

tax.    On November 5, 1999, pursuant to the parties’ stipulation,

this Court entered its decision in the deficiency case, deciding

that petitioner had deficiencies of $2,413, $12,000, and $4,000,

for 1987, 1990, and 1991, respectively, and had no deficiencies

or overpayments for 1988 and 1989.      Petitioner did not appeal

this decision.
                              - 4 -

Petitioner’s Returns for 1994 Through 2001

     Petitioner filed Federal tax returns for 1994 through 2001.

For every year except 1999, petitioner failed to fully pay the

liabilities shown on those returns.

Installment Agreements

     Petitioner entered into one or more installment agreements

that eventually covered all years at issue except 2001.   More

particularly, according to respondent’s transcripts of

petitioner’s account, petitioner’s liabilities for various years

were made subject to one or more installment agreements on the

following dates:2

               Date                   Tax Years

          May 21, 1999        1994, 1995, and 1997
          Oct. 3, 1999        1998
          Jan. 1, 2000        1996
          Mar. 13, 2000       1987, 1990, and 1991
          Mar. 22, 2000       2000

     According to respondent’s transcripts of petitioner’s

account, between June 1999 and March 2002 petitioner made 31

installment payments of about $750 each; respondent credited

these payments variously to petitioner’s 1987, 1994, and 1995




     2
       The record does not contain copies of any installment
agreements or any detailed information about them. It is unclear
from the record whether respondent and petitioner entered into
new installment agreements on these various dates or whether
existing installment agreements were modified to include
additional liabilities on these various dates.
                               - 5 -

years.3   After March 2002, petitioner stopped making installment

payments.

Collection Activity

     On April 22, 2003, respondent sent petitioner a Notice of

Federal Tax Lien Filing and Your Right to a Hearing Under IRC

6320 with respect to petitioner’s Federal income tax liabilities

for 1987, 1990, 1991, 1997, 1998, 2000, and 2001.   The notice

indicated that the total tax petitioner owed for these years was

about $65,231 (exclusive of interest), with about $42,631 of this

amount attributable to 1987, 1990, and 1991.

     On April 24, 2003, petitioner sent respondent a Form 12153,

Request for a Collection Due Process Hearing.   On the Form 12153,

petitioner disputed his underlying tax liabilities for 1987,

1990, and 1991 on the ground that his liabilities for those years

should have been eliminated by net operating loss carrybacks and

carryforwards from 1988 and 1989.   Petitioner complained that the

time for claiming these carrybacks and carryforwards had

“expired” while respondent’s revenue agents had control of his



     3
       With respect to petitioner’s 1987 year, respondent’s
transcripts of petitioner’s account show installment payments of
$750 each on July 30 and Aug. 30, 2000, Feb. 24, Mar. 8, and June
1, 2001, and Mar. 6, 2002. With respect to petitioner’s 1994
year, respondent’s transcripts of petitioner’s account show 18
installment payments of $750 each (except for one of $726)
between Dec. 1, 1999, and Feb. 5, 2002. With respect to
petitioner’s 1995 year, respondent’s transcripts of petitioner’s
account show seven installment payments of $750 each (except for
one of $708) between June 27, 1999, and Jan. 3, 2002.
                               - 6 -

files.   Petitioner alleged that he had attempted to satisfy his

tax debt by making installment payments of $750 per month until

he became ill with cancer.   Petitioner also alleged that the

collection activity was “premature” because his request for

“equitable relief” was still “under review”.4

     By letter dated April 13, 2004, respondent’s settlement

officer scheduled a hearing on May 6, 2004.     In the letter, the

settlement officer stated that if petitioner wished her to

consider collection alternatives, such as an offer-in-compromise,

he had to provide, within 10 days, certain documentation,

including completed collection information statements and a copy

of his filed 2003 Federal income tax return.

     At petitioner’s request, the meeting was rescheduled and, by

agreement, the hearing was held by telephone on June 8, 2004.

Petitioner expressed a desire to submit an offer-in-compromise.

The settlement officer set a deadline of July 14, 2004, for

petitioner to submit a completed offer-in-compromise, as well as

a completed Form 433-A, Collection Information Statement for

Individuals, and Form 433-B, Collection Information Statement for

Businesses.   At petitioner’s request, the settlement officer

extended this deadline to July 21, 2004.




     4
       It appears that petitioner’s reference to his request for
“equitable relief” refers to his Form 843, Claim for Refund and
Request for Abatement, filed on June 4, 2001, as discussed below.
                               - 7 -

     On July 22, 2004, respondent received from petitioner Form

656, Offer in Compromise, and Form 433-A, but no Form 433-B.    On

the Form 656, petitioner checked boxes indicating that he was

submitting his offer-in-compromise on the grounds of doubt as to

liability, doubt as to collectibility, and effective tax

administration.   He offered “$12,500 * * * to be applied first to

pay’ts to my Social Security Account” in compromise of tax

liabilities totaling approximately $115,000 (including accrued

interest).   Petitioner altered the standard terms of the Form 656

so as to eliminate the statement that he was signing under

penalties of perjury.   As the basis for his offer-in-compromise,

petitioner alleged that respondent’s revenue agents had engaged

in “ministerial and managerial misconduct” by failing to review

more promptly the boxes of documents he had submitted on November

12, 1992, in response to the summons.   He challenged his

underlying tax liabilities for 1987 through 1991.

     Petitioner also altered the standard terms of the Form 433-A

so as to eliminate the statement that he was signing under

penalties of perjury.   On the Form 433-A, petitioner failed to

disclose his ownership interest in certain real estate.

     After evaluating petitioner’s offer-in-compromise and Form

433-A, by letter dated September 30, 2004, the settlement officer

requested additional information from petitioner, including a

Form 433-B for petitioner’s business, a copy of petitioner’s 2003
                               - 8 -

return, and information about three specified real properties.

In addition, the settlement officer stated that she had

determined the fair market value of petitioner’s residence to be

$699,710 and offered petitioner an opportunity to submit an

appraisal if he disputed this value.   The settlement officer

requested all information by October 15, 2004, and informed

petitioner that she would be making her determination at that

time.

     Petitioner provided none of the additional documentation

requested by the settlement officer.   In an October 4, 2004,

letter to the settlement officer, petitioner stated

that his personal residence was in a “tired” condition and that

his property assessment had been reduced from $600,000 to

“$400,000. plus”.   He stated that two of the real properties for

which the settlement officer had requested information were owned

by trusts, and that the other real property was owned by his

wife.   He stated that he and his family had experienced health

problems.

     By letter dated October 6, 2004, the settlement officer

confirmed a telephone conversation with petitioner in which it

was agreed that petitioner would submit by October 15, 2004, all

of the information requested in her letter dated September 30,

2004.   The settlement officer also requested this additional

information:   (1) Documents verifying a reduced assessment on
                               - 9 -

petitioner’s residence; (2) verification of petitioner’s and his

family’s health problems; and (3) the trust documents and

beneficiary schedules for the trusts referenced in petitioner’s

letter.   The settlement officer requested this additional

information by October 21, 2004, and informed petitioner that she

would be making her determination at that time.   Petitioner

failed to provide any of the requested documentation.

     On November 23, 2004, respondent sent petitioner a Notice of

Determination Concerning Collection Action(s) Under Section 6320

and/or 6330 for 1987, 1990, 1991, 1997, 1998, 2000, and 2001 (the

determination).   The determination concluded that petitioner was

not entitled to challenge his tax liabilities for 1987, 1990, and

1991, as those liabilities had been litigated in the Tax Court.

In her determination, the settlement officer also concluded that

petitioner did not qualify for an offer-in-compromise on grounds

of doubt as to liability because, as just noted, petitioner was

precluded from challenging his 1987, 1990, and 1991 liabilities.

The settlement officer concluded that petitioner did not qualify

for an offer-in-compromise on the basis of doubt as to

collectibility because, after taking into consideration

petitioner’s equity in his residence, petitioner had the means to

fully pay the liabilities.5   Finally, she concluded that because


     5
       The settlement officer determined that petitioner had
$192,892 of equity in his residence, on the basis of a “forced
                                                   (continued...)
                              - 10 -

petitioner had failed to comply with her requests to verify his

health claims, he did not qualify for an offer-in-compromise on

the basis of effective tax administration.   Accordingly, no

viable collection alternative having been proposed, the

settlement officer sustained respondent’s collection action.

     In his petition in docket No. 24528-04L, petitioner

challenges respondent’s collection action.   The petition states

that “The only years which should be in question are the tax

years 1987, 1990 and 1991” and adds:

     The only reason that the tax years 1987, 1990 and 1991
     remain unpaid is that despite the taxpayer’s earmarking
     funds for the years due, the IRS nevertheless applied
     those payments instead, in such a haphazard manner so
     as to leave the oldest years ongoing and outstanding,
     thereby increasing the amount of compounding interest
     for even greater and extended periods of time.

     In his petition, petitioner alleges that he sustained an

overall net loss for 1987 through 1991 and that loss carrybacks

and carryforwards should eliminate any Federal income tax for

these years.   He claims to have already paid the IRS $27,000,

representing 36 installment payments of $750 each.




     5
      (...continued)
sale value” of $508,880, reduced by a $123,096 encumbrance on the
real estate and further reduced by 50 percent to reflect
petitioner’s joint ownership with his wife.
                             - 11 -

Request for Interest Abatement

     In his Form 843, Claim for Refund and Request for Abatement,

dated June 4, 2001, petitioner requested abatement of interest

and penalties for 1990 on the following grounds:

     1. IRS failed to work on 1990 tax return for 4 years
     after compelling production of records in 1992 and not
     getting to those records until early 1996. Interest
     caused by IRS delays.

     2. IRS failed to allow $20,281.67 for health ins. and
     related health benefits offered by office on 1040C
     schedule and limited deduction to modified 1040
     Schedule A.

     3. IRS by its undue delays i.e. 4 years - willfully and
     deliberately deprived taxpayer of 1989 carryfoward loss
     which would have totally eliminated all taxes interest
     and penalties and would have resulted in a zero balance
     for 1990 i.e. no taxes, penalties or interest. * * *

     4. Also in furtherance of willful misconduct, IRS has
     not applied payments made on account to oldest
     principal balance, but applies payments erratically and
     sporatically to more recent balance claimed.

     5. Also IRS has ignored payments made in 1996
     designated as payment in full of all prior alleged
     outstanding claims.

     6. IRS failed to advise that its results reported to MA

     By letter dated April 17, 2002, respondent’s technical

support manager advised petitioner that his claim for interest

abatement would be denied because there was “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

interest for 1987, 1990, 1991.6

     In his petition in docket No. 9544-04, petitioner assigns

error as follows to respondent’s refusal of his request for

abatement of interest:

     1. The IRS Stoneham, MA office wrongfully witheld my
     records after subpoena for nearly 5 years before
     returning them to amend/file said returns.

     2. If timely returned, the 1988 and 1989 losses could
     have be used to eliminate all taxes for 1987, 1990, and
     1991.

     3. Penalties were assessed unfairly given the
     extraordinary family circumstances during the period
     which included death of father (1987); death of mother
     (1989); daughter becoming total disabled for life;

     4. Associate attempting suicide (April, ‘91)

     5. 18 year old son - major kidney surgery (emergency)
     (1989); and

     6. TP being in poor health and under medical care of
     MGH for multiple medical problems.* (1987-‘91)

     7.*Also not given full credit for $750. per month POA
     between 1997-2001.




     6
       Although petitioner’s Form 843 requested interest
abatement for only 1990, it appears that respondent treated
petitioner’s Form 843 as a request for interest abatement for
1987, 1990, and 1991.
                              - 13 -

     8. Advised for Tax Court by IRS agent that penalties
     nominal and not to be concerned about interest which
     was incorrect.

                              OPINION

A.   Burden of Proof

     The burden of proof is generally upon petitioner, except as

may be otherwise provided by statute or determined by the Court.

See Rule 142(a).   For the first time on reply brief, petitioner

contends, with little elaboration, that respondent has the burden

of proof pursuant to section 7491.     Because petitioner did not

raise this argument or position in his pretrial memorandum, at

trial, or on opening brief, respondent has had no opportunity to

address petitioner’s position.   Petitioner’s attempt to raise

this argument on reply brief is untimely and prejudicial to

respondent.   See Estate of Deputy v. Commissioner, T.C. Memo.

2003-176.

     More fundamentally, section 7491 has no applicability to

these consolidated cases.7   Section 7491(a) operates to shift the

burden of proof to the Commissioner in certain circumstances with



     7
       Moreover, petitioner failed to establish that sec. 7491
was in effect at any time relevant to these cases. Sec. 7491 is
effective with respect to court proceedings arising from
examinations commenced after July 22, 1998. See Internal Revenue
Service Restructuring and Reform Act of 1998, Pub. L. 105-206,
sec. 3001(c)(2), 112 Stat. 727. We question whether the
“examination” in this case commenced after July 22, 1998, as
required for sec. 7491 to apply. It appears obvious that at
least with respect to 1987, 1990, and 1991, the examination
commenced well before July 22, 1998.
                              - 14 -

respect to any factual issue relevant to ascertaining the

taxpayer’s liability for tax imposed by subtitle A or B.     See

sec. 7491(a)(1); Rule 142(a)(2).   In one of these consolidated

cases, petitioner seeks review of respondent’s failure to abate

interest.8   Because interest is not imposed by subtitle A or B

but instead is imposed by section 6601, which is part of subtitle

F, section 7491 does not apply to petitioner’s interest-abatement

claim.   See Hawksley v. Commissioner, T.C. Memo. 2000-354, n.13.

In the other consolidated case, petitioner seeks review of

respondent’s collection action but, as discussed infra, is

precluded from challenging his underlying tax liability.

Accordingly, there is before us no legitimate factual issue

relevant to ascertaining petitioner’s liability for tax imposed

by subtitle A or B within the meaning of section 7491(a).9


     8
       Petitioner also appears to seek abatement of taxes and
penalties under sec. 6404. As discussed more fully infra, we
lack jurisdiction over those claims.
     9
       Even if we were to assume, for purposes of argument, that
sec. 7491 was in effect for some relevant time and that
petitioner had legitimately raised some factual issue as to which
sec. 7491 might be relevant, petitioner has failed to establish
that he has met the prerequisites for shifting the burden of
proof under sec. 7491(a)(2). See Higbee v. Commissioner, 116
T.C. 438 (2001) (taxpayers bear the burden of proving that the
requirements of sec. 7491 are met). For instance, for the burden
to shift to the Commissioner, the taxpayer must, among other
things, cooperate with reasonable requests by the Commissioner
for “witnesses, information, documents, meetings, and
interviews”. Sec. 7491(a)(2)(B). Petitioner has introduced no
evidence to show that he satisfies this requirement. To the
contrary, the evidence in the record indicates that petitioner
                                                   (continued...)
                              - 15 -

     Consequently, the burden of proof remains upon petitioner.

See Rule 142(a).

B.   Review of Collection Action

     Section 6321 imposes a lien in favor of the United States on

all property and property rights of a person who is liable for

and fails to pay taxes after demand for payment has been made.

The lien arises when assessment is made and continues until the

assessed liability is paid.   Sec. 6322.    For the lien to be valid

against certain third parties, the Secretary must file a notice

of Federal tax lien; within 5 business days thereafter, the

Secretary must provide written notice to the taxpayer.      Secs.

6320(a), 6323(a).   The taxpayer may request an administrative

hearing before an Appeals officer.     Sec. 6320(b)(1).   Once the

Appeals officer issues a determination, the taxpayer may seek

judicial review in the Tax Court or a District Court, as

appropriate.   Secs. 6320(c), 6330(d)(1).

     Section 6330(c)(2) prescribes the matters that a person may

raise at an Appeals Office hearing, including spousal defenses,

challenges to the appropriateness of the Commissioner’s intended

collection action, and possible alternative means of collection.

The existence or amount of the underlying tax liability may be

contested at an Appeals Office hearing only if the taxpayer did


     9
      (...continued)
failed to comply fully with respondent’s requests for information
in a timely fashion, even after respondent issued a summons.
                                - 16 -

not receive a notice of deficiency or did not otherwise have an

opportunity to dispute that tax liability.       Sec. 6330(c)(2)(B);

see Sego v. Commissioner, 114 T.C. 604, 609 (2000); Goza v.

Commissioner, 114 T.C. 176, 180-181 (2000).

     If the validity of the underlying tax liability is properly

at issue, we review that issue de novo.       See Sego v.

Commissioner, supra at 609-610.        Other issues we review for abuse

of discretion.     Id.

     1.     Underlying Tax Liability

     Petitioner challenges his underlying liabilities for 1987,

1990, and 1991 on the ground that alleged net operating loss

carrybacks and carryforwards from 1988 and 1989 should eliminate

any liabilities for these years.       Because petitioner received a

notice of deficiency for his tax years 1987 through 1991, he is

not entitled to challenge the existence or amount of his tax

liabilities for these years in this collection proceeding.       See

secs. 6320(c), 6330(c)(2)(B); Sego v. Commissioner, supra at 609;

Goza v. Commissioner, supra at 180-181.        Moreover, because this

Court adjudicated petitioner’s liabilities for these years

pursuant to a stipulated decision in the prior deficiency

proceeding, the doctrine of res judicata prevents petitioner from

relitigating in this proceeding his liabilities for 1987, 1990,

and 1991.    See Newstat v. Commissioner, T.C. Memo. 2004-208.
                              - 17 -

     2.   Application of Installment Payments

     Petitioner alleges that for some months he made monthly

installment payments of $750 each; he has been vague and

inconsistent in describing the total amount of installment

payments he claims to have made.10   Nevertheless, petitioner

argues on brief that if his installment payments to the IRS had

been correctly credited to his account, he would have no

outstanding balance due for any year relevant to these cases.   He

contends that respondent erred in failing to follow “standard

accounting practices” so as to apply his payments “to the oldest

principal balance first”.

     Petitioner has failed to establish that respondent committed

error in this regard.   The record indicates that at least some of

petitioner’s installment payments were made before March 13,

2000, when petitioner’s 1987, 1990, and 1991 liabilities became

subject to an installment agreement.   Clearly, respondent did not

err by applying these pre-March 13, 2000, installment payments to

years other than 1987, 1990, and 1991.   Respondent’s records

indicate that ultimately petitioner received credit for 31

payments of approximately $750 each, some of which were in fact


     10
       In his petition filed in docket No. 24528-04L, petitioner
alleges that his installment payments totaled $27,000. In his
pretrial memorandum, petitioner states that he made installment
payments totaling “more than $24,000”. On opening brief,
petitioner asserts that his installment payments totaled $29,503.
On reply brief, petitioner asserts that his installment payments
were “$27,000. plus”.
                              - 18 -

credited against petitioner’s 1987 liability.   The record

contains no credible evidence to suggest that these installment

payments were improperly credited or that petitioner made

additional payments that were not credited.

     3.   Collection Alternatives

     Petitioner has not expressly assigned error to the

settlement officer’s rejection of his offer-in-compromise.    To

the extent that the petition might be construed to raise such a

claim by implication, we hold that the settlement officer did not

abuse her discretion in rejecting petitioner’s offer-in-

compromise, inasmuch as petitioner was not entitled to challenge

his underlying tax liabilities for 1987, 1990, and 1991, see sec.

301.7122-1(b)(1), Proced. & Admin. Regs.; failed to timely comply

with the settlement officer’s requests for complete current

financial information to establish doubt as to collectibility or

economic hardship, see sec. 301.7122-1(b)(2) and (3), Proced. &

Admin. Regs.; failed to submit a copy of his 2003 tax return to

show the settlement officer that he was in current compliance

with filing requirements, see Rodriguez v. Commissioner, T.C.

Memo. 2003-153; and altered the standard terms of Form 656 so as

to delete the statement that he was signing the form under

penalties of perjury, see Rev. Proc. 2003-71, sec. 4.01, 2003-2

C.B. 517 (Form 656 must be signed under penalty of perjury and

none of its standard terms may be stricken or altered).
                              - 19 -

     4.   Conclusion

     Petitioner has failed to make a valid challenge to the

appropriateness of respondent’s collection action.

C.   Request for Abatement of Interest

     In his petition, petitioner requests us to abate all

interest and penalties for 1987, 1990, and 1991.11

     Section 6404(e)(1) provides that the Commissioner may abate

interest on any deficiency or payment of income, gift, estate,

and certain excise taxes to the extent that the deficiency or any

error or delay in payment is attributable to erroneous or

dilatory performance of a ministerial act by an officer or

employee of the Commissioner.12   Such an error or delay in


     11
       On brief, petitioner seems to suggest that he is also
requesting abatement of income tax for 1987, 1990, and 1991 and
may be requesting abatement of interest, taxes, and penalties for
other years as well. We decline to consider these issues raised
for the first time on brief, for to do so would result in
surprise and prejudice to respondent. See Sundstrand Corp. v.
Commissioner, 96 T.C. 226, 346-347 (1991); Seligman v.
Commissioner, 84 T.C. 191, 198 (1985), affd. 796 F.2d 116 (5th
Cir. 1986). In any event, in the administrative proceeding,
petitioner did not seek interest abatement for years other than
1987, 1990, and 1991; in this proceeding, petitioner has alleged
no facts or legal basis to support any claim for abatement of
interest for years other than 1987, 1990, and 1991. As discussed
infra, review of petitioner’s challenge to taxes and penalties is
precluded in these cases.
     12
       In 1996, sec. 6404(e) was amended to permit abatement of
interest for “unreasonable” error or delay resulting from the
performance of ministerial or “managerial” acts. Taxpayer Bill
of Rights 2, Pub. L. 104-168, sec. 301(a)(1) and (2), 110 Stat.
1457 (1996). The amended provision applies to tax years
beginning after July 30, 1996. Id. sec. 301(c). As previously
                                                   (continued...)
                                - 20 -

performing a ministerial act is taken into account only if it is

in no significant aspect attributable to the taxpayer, and only

if it occurs after the IRS has contacted the taxpayer in writing

regarding the deficiency or payment.

     Section 6404(e) is not intended to be “used routinely to

avoid payment of interest” but rather is to be “utilized in

instances where failure to abate 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.

     1.   Jurisdiction

     We have jurisdiction to decide whether respondent’s failure

to abate interest under section 6404(e) was an abuse of

discretion.   See sec. 6404(h).    Review of petitioner’s challenge

to his underlying liability for taxes and penalties is precluded

in these cases, if not by the limitations of section 6404(h),

which gives the Tax Court jurisdiction only with respect to

claims for abatement of interest, see Krugman v. Commissioner,

112 T.C. 230, 237 (1999), then, as previously discussed, by




     12
      (...continued)
discussed, in neither the administrative proceeding nor this
proceeding has petitioner properly challenged respondent’s
failure to abate interest for years other than 1987, 1990, and
1991. Therefore, the amendment is inapplicable to the instant
cases. We intend no inference that we would reach a different
result in these cases if the amendment were applicable.
                              - 21 -

virtue of the doctrine of res judicata and the operation of

section 6330(c)(2)(b).

     2.   Ministerial Error

     Petitioner has failed to show error or delay by respondent’s

officers or employees in performing a ministerial act within the

meaning of section 6404(e).   A “ministerial act” means a

procedural or mechanical act that does not involve the exercise

of judgment or discretion and occurs during the processing of a

taxpayer’s case after all the prerequisites to the act, such as

conferences and review by supervisors, have taken place.    See

Corson v. Commissioner, 123 T.C. 202, 207 (2004); sec. 301.6404-

2T, Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug.

13, 1987).   The exercise of judgment or discretion, such as the

Commissioner’s deliberation concerning the proper application of

Federal tax law or other law, is not a ministerial act.     Corson

v. Commissioner, supra.

     Petitioner alleges that respondent’s Stoneham,

Massachusetts, office wrongfully “withheld” his records for

nearly 5 years after obtaining them by summons.   The mere passage

of time in such circumstances, however, does not establish

erroneous or dilatory ministerial acts by respondent.   See Hanks

v. Commissioner, T.C. Memo. 2001-319.

     It was not until 1996 that petitioner finally submitted his

delinquent returns for 1987 through 1991.   Relatively soon
                                - 22 -

thereafter, respondent issued petitioner a 30-day letter,

proposing adjustments.   Petitioner filed an administrative

appeal, and after the notice of deficiency was issued in 1998,

petitioner litigated the deficiency in the Tax Court.     That

litigation concluded in 1999; petitioner then entered into an

installment agreement with the IRS.      In 2002, petitioner stopped

making installment payments.    In these circumstances, we discern

no error or delay by respondent’s officers or employees in

performing a ministerial act.

     Petitioner alleges that respondent failed to give him proper

credit for installment payments made.     As previously discussed,

we find petitioner’s contentions in this regard to be unfounded.

In any event, respondent’s decision in this case to apply

payments to a particular year’s tax liability does not constitute

a ministerial act within the meaning of section 6404(e).     See

Boyd v. Commissioner, T.C. Memo. 2000-16.

     3.   Significant Aspects of Delay Attributable to Petitioner

     Moreover, even if we were to assume, for the sake of

argument, that respondent’s officers or employees improperly

delayed performing (or failed to perform) one or more prescribed

ministerial acts, we would nevertheless conclude that significant

aspects of any such failure were attributable to petitioner, so

as to preclude relief under section 6404(e).     It was petitioner’s

own fault that he failed to file returns for 1987 through 1991,
                              - 23 -

forcing respondent to take action to secure the filing of the

returns.   Because of petitioner’s lack of cooperation, respondent

eventually resorted to summoning petitioner’s records.    As

previously noted, it was not until 1996 that petitioner finally

submitted his delinquent returns for 1987 through 1991.    Notably,

petitioner’s accompanying cover letter attributed the late

submission to his health problems rather than to any error or

delay by respondent’s employees; petitioner’s letter thanked the

IRS agents for their “professionalism and patience”.

     In sum, petitioner has not shown that respondent abused his

discretion in failing to comply with petitioner’s request for

interest abatement.

     We have considered all arguments made by petitioner and have

found those arguments not discussed herein to be moot or without

merit.13

     To reflect the foregoing,


                                         Decisions will be entered

                                    for respondent.




     13
       Although petitioner alleges in his petition that an IRS
agent advised him not to be concerned about interest, which was
“incorrect”, petitioner has not expressly raised this issue at
trial or on brief. We deem petitioner to have abandoned any such
issue. In any event, the record contains no evidence
corroborating this claim.
