                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                            FILED
                             FOR THE NINTH CIRCUIT
                                                                            NOV 06 2017
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
WILLIAM D. FOOTE and ELIZABETH                   No.   15-73728
R. FOOTE,
                                                 Tax Ct. No. 1176-13
              Petitioners-Appellants,

 v.                                              MEMORANDUM*

COMMISSIONER OF INTERNAL
REVENUE,

              Respondent-Appellee.


                             Appeal from a Decision of the
                               United States Tax Court

                             Submitted October 3, 2017**
                                Pasadena, California

Before: FERNANDEZ, RAWLINSON, and N.R. SMITH, Circuit Judges.

      We affirm the tax court’s finding that the Commissioner of the Internal

Revenue Service (IRS) did not abuse his discretion in denying the Footes’ request

for abatement of interest.

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      In his discretion, the Commissioner may abate the interest accrued on tax

deficiencies if the interest accrued as the result of an error or delay on the part of

the IRS in performing a ministerial act. 26 U.S.C. § 6404(e)(1)(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 after all prerequisites to the act,
      such as conferences and review by supervisors, have taken place. A
      decision concerning the proper application of federal tax law (or other
      federal or state law) is not a ministerial act.

26 C.F.R. § 301.6404-2(b)(2).1 The Commissioner did not abuse his discretion in

determining that the acts identified by the Footes do not fall within this definition.

      In addition, the Commissioner cannot abate interest if the taxpayer is the

cause of a significant aspect of the error or delay. 26 U.S.C. § 6404(e)(1). In their

briefing, the Footes admit that “[t]he audit file lists missed appointments and

suggest[s] a lack of cooperation in production of requested documents.” We agree.

Consequently, the Commissioner did not abuse his discretion in determining that

the Footes caused a significant aspect of any alleged error or delay.

      AFFIRMED.




      1
        Two regulations apply in this case: 26 C.F.R. § 301.6404-2 applies to tax
years after 1996 and 26 C.F.R. § 301.6404-2T applies to prior tax years. However,
both regulations contain essentially identical definitions of “ministerial act.” The
acts identified by the Footes do not meet either definition.
                                            2
