                                T.C. Memo. 2014-36



                         UNITED STATES TAX COURT



                     NOEL I. HULL, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 29134-11.                       Filed March 6, 2014.



      Brian C. Purcell, for petitioner.

      Matthew S. Reddington, for respondent.



                           MEMORANDUM OPINION


      JACOBS, Judge:1 The parties submitted this case fully stipulated pursuant

to Rule 122. The issue for decision is whether respondent’s denial of petitioner’s

request for abatement of interest on assessed section 6663 fraud penalties for the


      1
       This case was assigned to Judge Julian I. Jacobs by order of the Chief
Judge on November 6, 2013.
                                        -2-

[*2] period December 17, 2004, through February 21, 2008, with respect to year

2000, and for the period December 5, 2005, through February 21, 2008, with

respect to years 1996, 1997, 1998, 1999, constitutes an abuse of discretion. In the

notice of determination upon which this case is based respondent determined that

for each of the years involved (i.e., 1996-2000) petitioner was entitled to an

abatement of interest for the eight-month period June 1, 2007, to January 31, 2008,

but not for the periods petitioner requested. See infra pp. 8-9.2 We hold that

respondent’s denial of petitioner’s interest abatement request, other than as

allowed in the notice of determination, does not constitute an abuse of discretion.

All Rule references are to the Tax Court Rules of Practice and Procedure, and all




      2
        At the hearing petitioner’s counsel requested permission to file an amended
petition in which petitioner would seek interest abatement for the period February
22, 2008, through March 16, 2009, with respect to each of the years involved. The
Court granted petitioner leave to file an amended petition, but no amended petition
was ever filed. Thus, we deem petitioner to have abandoned his interest abatement
request for the period February 22, 2008, through March 16, 2009. In any event,
in determining whether respondent’s settlement officer’s determination constitutes
an abuse of discretion, we generally consider only the arguments, issues, and other
matters that were raised at the sec. 6330 hearing or otherwise brought to the
attention of the settlement officer. See A-Valley Eng’rs, Inc. v. Commissioner,
T.C. Memo. 2012-199 (citing Giamelli v. Commissioner, 129 T.C. 107, 115
(2007)). And in this regard, petitioner did not seek or raise interest abatement for
the period February 22, 2008, through March 16, 2009, at his sec. 6330 hearing
with respondent’s settlement officer or otherwise bring this matter to the attention
of that officer.
                                         -3-

[*3] section references are to the Internal Revenue Code in effect for the years

involved.

                                     Background

      We adopt as findings of fact all statements contained in the stipulation of

facts. The stipulation of facts and the exhibits attached thereto are incorporated

herein by this reference. Petitioner resided in Virginia when he filed his petition.

      On November 17, 2004, petitioner signed a plea agreement with the U.S.

Department of Justice in which he pleaded guilty to a violation of section 7206(1),

to wit, the filing of a false individual income tax return for year 2000. Petitioner,

in his plea agreement, stated:

      I agree to file true and correct Individual Income Tax Returns (Form
      1040) for the years 1996-2000 within 120 days of sentencing. I
      further agree to pay all taxes due and owing; and

      I further understand that my failure to make good faith efforts toward
      payment of my tax liability, interest and fraud penalty, with whatever
      means I have at my disposal, and requesting that any tax assessment
      be reviewed by the Appeals Section of the Internal Revenue Service
      may be a violation of this agreement, as well as a condition of my
      Supervised Release and that the United States Attorney will be free to
      refile and/or bring new criminal charges I am avoiding by accepting
      this agreement.

      In accordance with the plea agreement, on August 11, 2005, petitioner filed

amended tax returns for the years involved. He did not remit payments with these
                                         -4-

[*4] returns. On December 5, 2005, respondent sent petitioner a Form 3552,

Notice of Tax Due on Federal Tax Return, assessing the tax reported due.

      On January 30, 2006, Sherry S. Stadler, respondent’s technical services

group manager for the South Atlantic Area, sent a memorandum to Christine Bass,

a return classification specialist in respondent’s South Atlantic Area, informing

her that the criminal investigation and prosecution of petitioner had been

completed and that petitioner’s case was being assigned to Ms. Bass’ group for

civil settlement. Ms. Stadler’s memorandum included a paragraph stating:

      Section 25.1.6.2(5) of the IRM [Internal Revenue Manual] provides,
      “If criminal prosecution of a taxpayer has been recommended by CI
      [respondent’s criminal investigative unit] to the Department of
      Justice, the civil fraud penalty or fraudulent failure to file may be
      removed only upon written recommendation or concurrence by Area
      Counsel. * * *” The revenue agent should consider this point during
      the civil settlement phase of the examination.

Attached to the memorandum was a copy of the plea agreement that petitioner

signed.

      Because petitioner failed to remit payment with his amended returns, on

February 25, 2006, respondent sent petitioner Letter 1058, Final Notice of Intent

to Levy and Notice of Your Right to a Hearing, with respect to his unpaid income

tax liabilities. In response to that letter, on March 6, 2006, petitioner filed Form

12153, Request for a Collection Due Process or Equivalent Hearing (section 6330
                                        -5-

[*5] hearing). Petitioner’s request was assigned to Settlement Officer Darlene

Caputo who, after consulting with the U.S. Attorney’s Office, determined that

petitioner had waived his right to have a section 6330 hearing by signing the plea

agreement. On June 20, 2006, Settlement Officer Caputo sent petitioner a Notice

of Determination Concerning Collection Action(s) Under Section 6320 and/or

6330 (notice of determination) to that effect.

      On August 8, 2006, Revenue Agent Jackie Roberts was assigned to examine

petitioner’s amended returns and to determine whether the fraud penalty pursuant

to section 6663 (civil fraud penalty) should be applied for each of the years

involved. On October 16, 2006, Revenue Agent Roberts was placed on a

temporary detail which delayed her working on petitioner’s case. She worked on

petitioner’s case only “as time permitted” from October 26 to December 1, 2006.

      On April 20, 2007, Revenue Agent Roberts mailed Letter 2205-A(DO) to

petitioner informing him that his returns for the years involved had been selected

for examination. She requested that he call her by May 4, 2007.3 Revenue Agent

Roberts worked on petitioner’s case until September 7, 2007, on which date she

was transferred to another position. On September 11, 2007, petitioner’s case was


      3
       On May 4, 2007, petitioner’s representative contacted respondent to
discuss the case.
                                         -6-

[*6] reassigned to Revenue Agent Sheila Denton. Revenue Agent Denton

commenced work on petitioner’s case on September 19, 2007. After reviewing the

case file, Revenue Agent Denton determined that the civil fraud penalty should be

applied for each of the years involved; thereafter, she sought her manager’s

approval to do so. On January 30, 2008, Revenue Agent Denton realized that she

had not received a signed penalty approval form; rather, she had received only her

manager’s verbal approval. The group manager signed the penalty approval form

on January 30, 2008, and on the next day (January 31, 2008), Revenue Agent

Denton contacted petitioner’s representative to discuss the case with him.

Settlement Officer Denton prepared, and obtained supervisory review of, Letter

950 (DO) to be sent to petitioner. Before sending Letter 950, Settlement Officer

Denton became ill which, together with her absence due to a Federal holiday,

prevented her from working on petitioner’s case for several days.

      On February 21, 2008, respondent mailed Letter 950 (DO) to petitioner.

That letter set forth the results of the tax examination of petitioner’s returns and

concluded that petitioner was liable for the civil fraud penalty for each of the years

involved. Two months later, on April 21, 2008, petitioner protested respondent’s

findings. Petitioner’s appeal was then assigned to Appeals Officer Kathryn Lester.
                                         -7-

[*7] Appeals Officer Lester and petitioner ultimately agreed to a settlement

whereby the amounts of the civil fraud penalties for years 1996-1999, but not the

amount for year 2000, were reduced. On December 11, 2008, Appeals Officer

Lester mailed petitioner a letter memorializing the settlement together with Form

870-AD, Offer to Waive Restrictions on Assessment and Collection of Tax

Deficiency and to Accept Overassessment. Petitioner signed the Form 870-AD on

December 29, 2008, and returned it to Appeals Officer Lester on December 31,

2008. On February 3, 2009, Alan Redstone, the Appeals Team Manager, mailed

petitioner Letter 913 stating that the settlement agreement had been approved.

      On March 16, 2009, respondent mailed petitioner Notice CP22E indicating

an assessment of the civil fraud penalty for each of the years involved was made

per the agreed settlement. Petitioner paid a portion of the civil fraud penalties

assessed. On January 12, 2010, respondent issued a Final Notice Notice Of Intent

To Levy And Notice Of Your Right To A Hearing, with respect to all years

involved. On January 25, 2010, petitioner filed Form 12153 in which he requested

a section 6330 hearing. He did not seek an abatement of interest on the amounts

of the civil fraud penalties in his hearing request.

      On April 19, 2010, petitioner requested an abatement of interest on the civil

fraud penalties. The reasons given for the interest abatement request were (1) with
                                        -8-

[*8] respect to year 2000, the plea agreement constituted a waiver of restrictions

on assessment within the meaning of section 6213(d) and (2) there were

unreasonable delays in respondent’s agents’ performing ministerial or managerial

acts in the assessment of the civil fraud penalty for each of the years involved.

      As a result, interest on the Civil Fraud Penalty Amount for the Tax
      Year Ending 12/31/00 should be abated from the date 30 days after
      the date of the Plea Agreement (i.e., 30 days after November 17,
      2004) until notice and demand for payment of such interest was made
      as indicated on the Letter 950 (i.e., February 21, 2008).

      In addition, the Taxpayer respectfully submits that interest should be
      abated on the Civil Fraud Penalties for all the Tax Years at Issue,
      other than the Tax Year Ending 12/31/00, from the date of the filing
      of the amended returns (i.e., August 11, 2005) through (February 21,
      2008) under IRC §6404(e)(1) for unreasonable delay in making the
      assessment. The Internal Revenue Service knew that the Taxpayer
      had agreed that he filed a false tax return with respect to Tax Year
      Ending 12/31/00 as of November 17, 2004 and the facts surrounding
      the other Tax Years at Issue were also known to the IRS at that point.
      The delay in “selecting” the taxpayer’s returns for examination was
      purely based on the IRS internal administrative issues. Once the
      returns were selected for examination, there was further delay caused
      by reassignment of the Revenue Officer assigned to the case (Ms.
      Roberts) and waiting for another Revenue Officer to be assigned.

      Petitioner’s case file was reviewed by Settlement Officer Mary Hallman.

On June 20, 2011, respondent mailed a notice of determination in which

respondent’s Appeals Office determined that there had been a ministerial delay
                                        -9-

[*9] during the examination of petitioner’s amended returns from June 1, 2007, to

January 31, 2008, for all years involved, and thus accrued interest with respect to

the civil fraud penalties for that eight-month period should be abated. The notice

of determination stated the following with respect to the abatement of interest:4

      Period from return due dates to April 20, 2007--Interest not subject to
      abatement, since no written notification from IRS to Taxpayer.

      Period from April 20, 2007 to June 1, 2007--A review of Examiner’s
      Activity Record shows exercise of judgment and discretion and
      actions taken to reach a decision–no delays of ministerial or
      managerial acts.

      Period from June 1, 2007 to January 31, 2008--On January 31, 2008,
      IRS began to prepare the letter to propose the penalties. By June 1,
      2007, prerequisites to this act had taken place. Interest abatement on
      this period is appropriate.

      Period from January 31, 2008 to February 21, 2008--No delays or
      errors in preparing proposal letters to Taxpayer.




      4
        The notice of determination further stated that although petitioner had
proposed an installment agreement, he failed to specify a monthly amount and did
not submit financial information to support an installment agreement. The notice
stated that Settlement Officer Hallman had verified that respondent met all legal
and procedural requirements and that the proposed collection actions balanced the
need for efficient collection with petitioner’s concern that the collection action be
no more intrusive than necessary. Petitioner does not challenge these
determinations; hence, we do not consider them. See Rule 331(b)(4).
                                         - 10 -

[*10]                                 Discussion

I.      Introduction

        As noted supra pp. 7-8, petitioner asserts two distinct grounds as the basis

for the abatement of interest. First, with respect to year 2000, petitioner maintains

that his plea agreement constituted a waiver of restriction on the assessment and

collection of his taxes, as defined in section 6213(d). And second, with respect to

year 2000 and each of the other years involved, petitioner maintains that

respondent abused his discretion in not abating interest on the civil fraud penalty

that accrued during the period in which respondent’s agents caused unreasonable

delays in the course of performing ministerial and/or managerial acts. See sec.

6404(e).

II.     2000 Tax Year--Waiver of Restrictions on Assessment

        Section 6213(d) permits a taxpayer to waive the restrictions provided in

section 6213(a) on the assessment and collection of the whole or any part of an

income tax deficiency. Such a waiver must be made in writing, signed by the

taxpayer, and filed with the district director or other authorized official under

whose jurisdiction the audit or other consideration of the return in question is

being conducted. Sec. 301.6213-1(d), Proced. & Admin. Regs. If a section

6213(d) waiver of restrictions on assessment applies, interest is suspended if a
                                        - 11 -

[*11] notice and demand for payment is not made within 30 days after the filing of

the waiver. Sec. 6601(c).5

      Generally, the waiver is executed by filing a designated form, but the

restrictions on assessment may be waived in other ways. See, e.g., Ulrich v.

Commissioner, 585 F.3d 1235 (9th Cir. 2009) (Form 4549, Income Tax

Examination Changes, constituted a waiver when it included a statement

specifically consenting to immediate assessment and collection); Corson v.

Commissioner, T.C. Memo. 2009-95 (joint stipulated decision document

constituted a waiver when it explicitly stated that the taxpayer waived restrictions

on assessment).

      Petitioner posits he met all of the requirements of section 6213(d) and

section 301.6213-1(d), Proced. & Admin. Regs., in that (1) the plea agreement (A)

was in writing and signed by him; (B) was filed with respondent, in that copies of

the plea agreement were forwarded to several of respondent’s employees who

were working on petitioner’s case; and (C) waived the restriction on assessment

and collection, in that the plea agreement stated that petitioner would pay all taxes,

interest, and fraud penalties and contained a provision that any request by


      5
      Sec. 6665 provides that a fraud penalty is treated as a deficiency for
purposes of secs. 6601(c) and 6404(e).
                                        - 12 -

[*12] petitioner to have his case reviewed by respondent’s Office of Appeals

would violate the terms of the plea agreement and (2) respondent treated the plea

agreement as a waiver on restriction on assessment and collection, in that (A)

respondent issued Letter 1058, dated February 25, 2006, stating his intent to levy

on petitioner’s property to satisfy petitioner’s 1996-2000 income tax liabilities and

(B) respondent rejected petitioner’s challenge to the assessment of the income tax

liabilities in the June 20, 2006, notice of determination on the grounds that

petitioner had waived his right to seek Appeals Office review of his plea

agreement.

      Petitioner’s contention is meritless. Initially, we note that the plea

agreement does not specifically state that petitioner intended the plea agreement to

be a waiver of restriction on assessment. This contrasts with the respective

documents in Ulrich and Corson, each of which explicitly states that the taxpayers

consented to waive the restriction on assessment.

      Moreover, the plea agreement does not establish the amounts to be assessed.

Rather, in his plea agreement, petitioner (1) agreed to file corrected Federal

income tax returns which would ultimately establish the amounts of tax he owed

and (2) waived his right to seek review by respondent’s Office of Appeals of any

assessment of tax.
                                         - 13 -

[*13] Further, we disagree with petitioner’s position that respondent treated the

plea agreement as a waiver of restriction on assessment. When petitioner filed the

required amended returns on August 11, 2005, he remitted no payment. In

instances where a taxpayer self-assesses his/her income tax but does not remit

payment, the Secretary is authorized, pursuant to section 6201(a)(1), to assess all

tax reported by the taxpayer on his/her return. Thus, respondent relied on his

statutory authority in assessing petitioner’s tax liabilities rather than on a waiver of

the restrictions on assessment. Hence, because petitioner did not waive

restrictions under section 6213(d) for the years involved, the 30-day rule provided

by section 6601(c) does not apply.

III.   All Tax Years Involved--Abatement for Ministerial and/or Managerial
       Delay

       Interest normally begins to accrue on a tax liability on the date on which the

return of the tax with respect to which the penalty or addition to tax is imposed is

required to be filed (including any extensions) and ends on the date of payment of

the penalty or addition to tax. See secs. 6601(e)(2)(B), 6622. Because interest

continues to accrue until the tax is paid, interest may be assessed at any time

during the period within which the tax (to which the interest relates) may be

collected. Sec. 6601(g).
                                        - 14 -

[*14] Congress authorized the Secretary to abate the assessment of interest in

certain prescribed circumstances. Specifically, section 6404(e)(1) provides that

the Secretary may abate the assessment of all or any part of interest for any period,

in the case of any assessment on (1) any deficiency attributable in whole or in part

to any unreasonable error or delay by an officer or employee of the Internal

Revenue Service, acting in his official capacity, in performing a ministerial or

managerial act or (2) any payment of any tax described in section 6212(a) to the

extent that any unreasonable error or delay in such payment is attributable to the

officer or employee being erroneous or dilatory in performing a ministerial or

managerial act.6 For purposes of section 6404(e)(1), an error or delay may be

taken into account only if no significant aspect of such error or delay can be

attributed to the taxpayer involved and only after the Commissioner has contacted.




      6
        Sec. 6404(e)(1) applies to interest accruing with respect to deficiencies or
payments for taxable years beginning after December 31, 1978. Tax Reform Act
of 1986, Pub. L. No. 99-514, sec. 1563(b), 100 Stat. at 2762. In 1996 Congress
amended sec. 6404(e)(1)(A) and (B) to refer to “unreasonable” errors or delays in
performing ministerial or managerial acts. Taxpayer Bill of Rights 2 (TBOR 2),
Pub. L. No. 104-168, sec. 301(a), 110 Stat. at 1457. The amendments apply to
interest accruing on deficiencies or payments for taxable years beginning after
July 30, 1996. See id. sec. 301(c). For taxable years beginning on or before July
30, 1996, the Secretary may abate an assessment of interest under sec. 6404(e)(1)
only when it is attributable to an error or delay by an officer or employee in
performing a ministerial act. See id.
                                         - 15 -

[*15] the taxpayer in writing with respect to the deficiency or payment at issue.

Sec. 6404(e)(1) (flush language).

      If the Commissioner issues a notice of determination denying a taxpayer’s

request for abatement of interest under section 6404, and if the taxpayer timely

files a petition for review, section 6404(i)7 grants jurisdiction to this Court to

determine whether the Commissioner’s failure to abate interest was an abuse of

discretion if the taxpayer meets the requirements referred to in section

7430(c)(4)(A)(ii), see section 6404(i)(1) (relating to certain net worth

requirements), and, if an abuse is so determined, to order an abatement thereof.8

      To prevail under section 6404(e), a taxpayer must: (1) identify an error or

delay by the Commissioner in performing a ministerial or managerial act;9 (2)


      7
       Tax Court review was initially enacted as section 6404(g) by TBOR 2, sec.
302(a), 110 Stat. at 1457. The statute is currently codified at sec. 6404(h)
pursuant to the Victims of Terrorism Tax Relief Act of 2001, Pub. L. No. 107-134,
sec. 112(d)(1)(B), 115 Stat. at 2434.
      8
        We note that interest abatement is permitted only “‘where failure to abate
interest would be widely perceived as grossly unfair’”. See, e.g., Krugman v.
Commissioner, 112 T.C. 230, 238-239 (1999) (quoting H.R. Rept. No. 99-426, at
844 (1985), 1986-3 C.B. (Vol. 2) 1, 844, and S. Rept. No. 99-313, at 208 (1986),
1986-3 C.B. (Vol. 3) 1, 208).
      9
        As stated supra note 6, the older version of sec. 6404(e), by which the
Secretary may abate an assessment of interest only when it is attributable to an
error or delay by an officer or employee in performing a ministerial act, applies to
                                                                        (continued...)
                                       - 16 -

[*16] establish a correlation between the error or delay and a specific period for

which interest should be abated; and (3) show that he/she would have paid the tax

liability earlier but for the error or delay. See Paneque v. Commissioner, T.C.

Memo. 2013-48; Hancock v. Commissioner, T.C. Memo. 2012-31; Braun v.

Commissioner, T.C. Memo. 2005-221. If all these factors are present, the taxpayer

must show that, in denying the taxpayer’s interest abatement request, the

Commissioner abused his discretion by acting arbitrarily, capriciously, or without

sound basis in fact or law. Sec. 6404(i)(1); see Allcorn v. Commissioner, 139 T.C.

53 (2012); Woodral v. Commissioner, 112 T.C. 19, 23 (1999).

      A managerial act “means an administrative act that occurs during the

processing of a taxpayer’s case involving the temporary or permanent loss of

records or the exercise of judgment or discretion relating to management of

personnel.” Sec. 301.6404-2(b)(1), Proced. & Admin. Regs. A ministerial act

“means a procedural or mechanical act that does not involve the exercise of

judgment or discretion, and that occurs during the processing of a taxpayer’s case




      9
        (...continued)
petitioner’s 1996 tax year. However, this difference does not affect the result here.
                                          - 17 -

[*17] after all prerequisites to the act, such as conferences and review by

supervisors, have taken place.” Sec. 301.6404-2(b)(2), Proced. & Admin. Regs.10

      Petitioner asserts that because of ministerial and/or managerial acts

respondent delayed the processing of his case, and therefore he requests abatement

of interest with respect to the civil fraud penalties from December 5, 2005,

through February 21, 2008. As noted supra pp. 8-9, in the notice of determination

respondent in part agreed with petitioner’s contention that unreasonable delays

occurred in the processing of petitioner’s case. Thus, respondent abated interest

on the civil fraud penalties that accrued from June 1, 2007, to January 31, 2008.

      Respondent did not abate interest that accrued before April 20, 2007,

because petitioner was first contacted with regard to the civil fraud penalties on

that date, i.e., when Revenue Agent Roberts sent Letter 2205-A to petitioner

informing him that his income tax returns for the years involved had been selected

for examination.11 The flush language of section 6404(e)(1) does not authorize


      10
         Sec. 301.6404-2, Proced. & Admin. Regs., generally is applicable to
interest accruing with respect to deficiencies or payments of any tax described in
sec. 6212(a) for taxable years beginning after July 31, 1996. The definition of
“ministerial” act for taxable years beginning before July 31, 1996, is the same as
that set forth supra. See sec. 301.6404-2T(b)(1), Temporary Proced. & Admin.
Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987).
      11
           We are mindful that respondent contacted petitioner as to the payment of
                                                                         (continued...)
                                       - 18 -

[*18] abatement of interest from the due date of the income tax returns in question

until the Commissioner contacts a taxpayer in writing with respect to the

deficiency. See Allcorn v. Commissioner, 139 T.C. at 58 n.3; Guerrero v.

Commissioner, T.C. Memo. 2006-201. Consequently, respondent’s failure to

abate interest for the period before April 20, 2007, was not, and under section

6404(e)(1) cannot be, an abuse of discretion. See Donovan v. Commissioner, T.C.

Memo. 2000-220; H.R. Rept. No. 99-426, at 844 (1985), 1986-3 C.B. (Vol. 2) 1,

844 (“This provision does not therefore permit the abatement of interest for the

period of time between the date the taxpayer files a return and the date the IRS

commences an audit, regardless of the length of that time period.”).

      With respect to the period from April 20 to June 1, 2007, petitioner asserts

that Revenue Agent Roberts caused unreasonable ministerial delays. However,

the record reveals that Revenue Agent Roberts’ actions were more than

ministerial. She examined petitioner’s case to determine the appropriateness of

imposing the civil fraud penalties and, if appropriate, the amounts thereof.

Revenue Agent Roberts held conference calls with petitioner’s representative on

      11
        (...continued)
his income tax deficiencies for years 1996 through 2000, but that is a separate
matter. This case concerns the abatement of interest with regard to the civil fraud
penalty imposed by respondent, and at the time of the other contacts, respondent
had not yet contacted petitioner regarding the penalty.
                                        - 19 -

[*19] several occasions to discuss petitioner’s case and ameliorate issues that had

come to light (e.g., the possibility of adjusting a levy on petitioner’s bank

account). Each of these activities required Revenue Agent Roberts to exercise

judgement and discretion. See sec. 301.6404-2(b)(2), Proced. & Admin. Regs.

      Petitioner correctly points out that when Revenue Agent Roberts was

transferred on September 7, 2007, she ceased working on petitioner’s case, and

Revenue Agent Denton did not commence working on petitioner’s case until

September 19, 2007. However, this 12-day period was included in the period

respondent abated interest on the civil fraud penalties, i.e., the period June 1,

2007, to January 31, 2008.

      With respect to the period from February 1 to 21, 2008, petitioner asserts

that a ministerial delay occurred while Revenue Agent Denton drafted Letter 950

(DO). However, a review of Revenue Agent Denton’s activity record

demonstrates that she worked diligently in drafting that letter and was required to

seek supervisory review. While there was a slight delay due to Revenue Agent

Denton’s illness and a Federal holiday, we do not believe the missed days

unreasonably delayed the issuance of Letter 950 (DO). Moreover, the drafting of

Letter 950 (DO) was not a ministerial act, inasmuch as issuance of the letter

required supervisory approval. See sec. 301.6404-2(b)(2), Proced. & Admin.
                                        - 20 -

[*20] Regs. In sum, we find respondent’s failure to abate interest on the civil

fraud penalties from February 1 to 21, 2008, did not constitute an abuse of

discretion.

      In conclusion, we find that respondent did not abuse his discretion by

declining to abate interest on the amounts of the civil fraud penalties other than the

period set forth in the notice of determination.

      To reflect the foregoing,


                                                 Decision will be entered

                                       for respondent.
