                        T.C. Memo. 2005-150



                      UNITED STATES TAX COURT



               THOMAS AND JULIA BO, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10657-03.            Filed June 23, 2005.


     Thomas and Julia Bo, pro se.

     Michael D. Zima, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     COLVIN, Judge:   Respondent issued a final determination

disallowing petitioners’ claim under section 6404(e) for

abatement of interest related to their income tax liabilities for

1991-95 that accrued from March 18, 1999, to October 8, 2002.

     Respondent concedes that petitioners are entitled to

abatement of interest that accrued from June 26 to November 7,
                                 - 2 -

2001.    The issue for decision is whether respondent’s denial of

petitioners’ remaining claim for abatement of interest relating

to petitioners’ 1991-95 tax years was an abuse of discretion.     We

hold that it was with respect to the time from July 3 to July 23,

2002.1

     Section references are to the Internal Revenue Code as

amended.    Rule references are to the Tax Court Rules of Practice

and Procedure.     References to petitioner are to Thomas Bo.

                           FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

A.   Petitioners

     Petitioners are married and lived in Malabar, Florida, when

they filed the petition.     They have four children.

     Petitioner operated a business through which he sold,

leased, and installed security, monitoring, and alarm systems.

Petitioner wife did the office work for the business including

compiling data needed to prepare petitioners’ tax returns.      At a



     1
        Respondent filed a motion for summary judgment which we
granted with respect to whether petitioners are entitled to
relief under sec. 6404(e)(1)(A), which applies to any deficiency
attributable to any ministerial delay by respondent. We did so
because respondent determined no deficiencies with respect to the
years in issue. We denied respondent’s motion for summary
judgment with respect to sec. 6404(e)(1)(B) and the flush
language of sec. 6404(e)(1) as to whether petitioners’ delay in
paying their 1991-95 taxes was attributable to erroneous or
dilatory performance of a ministerial act by an officer or
employee of the Internal Revenue Service, and, if so, whether
petitioners caused any significant aspect of the delay.
                                - 3 -

time not specified in the record, petitioner wife had serious

medical conditions which prevented her from compiling that tax

data.

     Petitioner suffered substantial personal injuries in an

automobile accident on December 13, 1996, which left him

permanently 20 percent disabled.    During the 4 years after the

accident, petitioners struggled financially, were evicted from

two homes, and had one vehicle repossessed.

B.   Petitioners’ Federal Income Tax Returns and Payments

     Petitioners requested and received an extension of time to

October 15, 1992, to file their 1991 Federal income tax return.

Petitioners submitted $1,000 with that request.    They later

reported a tax liability of $2,794 for 1991.

     Petitioners did not request or receive extensions of time in

which to file their Federal income tax returns for 1992-94.

Petitioners requested and received an extension of time to

October 15, 1996, to file their 1995 return.    Petitioners

submitted $435 with this request.    They later reported a tax

liability of $544 for 1995.

     Petitioners untimely filed their 1991-95 Federal income tax

returns on April 17, 1997.    H & R Block prepared those returns.

On those returns, petitioners reported the following income tax

liabilities:
                                  - 4 -

                           Year            Tax

                           1991           $2,794
                           1992            1,144
                           1993              859
                           1994            1,527
                           1995              544
                             Total         6,868

Petitioners did not pay any tax with their returns for 1991-95.

     Respondent assessed the tax which petitioners reported on

their return for 1995 on May 19, 1997, for 1991 and 1994 on May

26, 1997, and for 1992 and 1993 on June 30, 1997.             Respondent

also assessed additions to tax for failure to timely file under

section 6651(a)(1) and failure to pay the tax shown on the return

under section 6651(a)(2) as follows:

                             Additions to tax
           Year      Sec. 6651(a)(1)   Sec. 6651(a)(2)

           1991         $403.65                     $448.50
           1992          257.40                      286.00
           1993          193.28                      167.51
           1994          343.58                      198.51
           1995          100.00                       28.63
             Total     1,297.91                    1,129.15

     On June 2, 1997, petitioners gave respondent a check in the

amount of $584.36 to be applied to their balance due for 1996.

The issuing bank did not honor this check.

C.   Events Occurring From April 17, 1997, to March 18, 1999

     Petitioners filed their returns for 1991-95 on April 17,

1997.   Petitioner knew in 1997 and early in 1998 that petitioners

had not paid the taxes they reported were due on those returns.

He believed that petitioners had not correctly reported their tax
                               - 5 -

liabilities on their returns for the years in issue because he

thought they had not deducted enough for telecommunication

expenses (cell phones and pagers).

     In 1997 and early 1998, petitioner told Annette Davis

(Davis), an employee of respondent,2 that he believed petitioners

had reported owing more tax than they owed.   Davis recommended

that petitioners submit an offer in compromise.

D.   Events From March 18, 1999,3 to October 8, 2001

     1.   March 18, 1999

     Petitioner mailed a letter to Davis on March 18, 1999, in

which he referred to a conversation he had had with her.   In that

conversation, petitioner had told Davis that he believed that

petitioners’ returns were incorrect because they did not include

deductions for telecommunication costs of about $5,000 per year.

     On March 13, 2000, petitioner wrote to respondent and asked

respondent to consider petitioners’ situation as an economic

hardship case.   In that letter, petitioner said that his accident

on December 13, 1996, had caused severe physical injuries to him

and substantial financial losses to his business.




     2
        Annette Davis’s position with respondent at that time is
not in the record. She later became a group manager.
     3
        Petitioners contend that interest on their underpayment
for 1991-95 that accrued from Mar. 18, 1999, to the present
should be abated.
                               - 6 -

     Petitioners submitted an offer in compromise to respondent

in late April or early May 2000.    Respondent returned it to

petitioners on May 3, 2000, because petitioners had not filed a

return for 1998.   Petitioners resubmitted their offer in

compromise on May 13, 2000, with their tax return for 1998.     In

the resubmitted offer in compromise, petitioners proposed to pay

$2,500 to settle their 1991-95 tax liabilities.

     On a date not stated in the record, petitioner called Davis

to ask about the status of petitioners’ case.    He learned that

Davis was on maternity leave and that Phyllis McLaughlin

(McLaughlin) was responsible for petitioners’ case.    Petitioner

spoke with McLaughlin many times.

     One of respondent’s employees (not identified in the record)

told petitioner that respondent was returning petitioners’ offer

in compromise because petitioner had apparently included his

business gross receipts in his personal income.    The employee

told petitioner to separate his personal and business items so

that respondent’s evaluators would not assume that petitioner’s

income included his business gross receipts.    McLaughlin

suggested to petitioners that they seek help from an accountant

to separate those items.   Petitioners retained John Holder

(Holder).

     R. Chambers (Chambers), a member of respondent’s collection

division in Melbourne, Florida, faxed to petitioners on July 27,
                                  - 7 -

2000, a letter that Chambers had prepared for petitioners to

sign.      The letter stated (without explanation) that petitioners

requested to withdraw their pending offer in compromise for 1991-

95.   Petitioner signed the letter and returned it to Chambers on

July 27, 2000.      Davis told petitioners that their offer in

compromise to settle their liability for 1991-95 was considered

withdrawn on July 28, 2000.

      2.      Administrative Proceedings Under Section 6330(b)

      Respondent filed a notice of Federal tax lien with respect

to petitioners’ 1991-95 Federal income tax liabilities 2 days

after petitioners withdrew their offer in compromise.      The lien

adversely affected petitioner’s credit, including his ability to

buy alarm equipment on credit to install for his customers.

      On August 2, 2000, petitioners timely filed a request for a

collection due process hearing.

      On dates not stated in the record:     (a) Petitioner asked

respondent’s employees (not identified in the record) why

respondent had filed a Federal tax lien; (b) petitioner was told

that he had not resubmitted an offer in compromise; (c)

petitioners submitted to respondent a offer in compromise that

Holder had helped to prepare; (4) respondent did not accept it

because petitioners had not filed all tax returns that were due;

and (5) petitioners prepared returns that were due and submitted

them with the offer in compromise.
                               - 8 -

     On October 18, 2000, petitioners filed amended returns in

response to respondent’s assessment of petitioners’ tax

liabilities for 1991-95.   Petitioners reported lower tax

liabilities for 1991-95 in those amended returns than they had

reported in their original returns for those years.

     Respondent assigned petitioners’ collection due process case

to Appeals Officer Vivian Watson (Watson) on April 26, 2001.

Watson attended job-related training from April 30 to May 11,

2001.

     On May 22, 2001, Watson wrote to petitioners to schedule a

collection due process hearing for June 7, 2001.   Watson enclosed

a Form 433-A, Collection Information Statement for Individuals,

that she asked petitioners to complete and return to her by June

6, 2001.   Petitioners completed the Form 433-A and returned it to

Watson on June 6, 2001.

     At petitioners’ request, Watson conducted the collection due

process hearing on June 6, 2001.   Immediately after the hearing,

Watson wrote a letter to petitioners in which she enclosed a Form

433-B, Collection Information Statement for Businesses, to be

returned by June 20, 2001.   Watson also asked for a copy of

petitioners’ original 1991-95 returns, spreadsheets used to

prepare the amended 1991-95 returns, and telecommunication bills

for expenses claimed on the amended 1991-95 returns.   Petitioner
                               - 9 -

worked on the spreadsheets every night for 2 weeks, then

submitted them to Watson.

     Petitioner telephoned Watson on June 20, 2001, and told her

that he had found canceled checks for the telecommunication

expenses.   Watson then agreed to withhold a decision on whether

the filing of a lien was proper until respondent’s examination

division reviewed petitioners’ telecommunication expense

deductions for the years in issue.     Watson incorrectly told

petitioner on June 26, 2001, that petitioners’ file would be sent

to the examination division in Melbourne, Florida.     Instead, it

was sent to PSP, an internal address of respondent not further

identified in the record.

     On November 5, 2001, petitioner asked Watson to expedite

consideration of petitioners’ case because the lien was hurting

his credit.   Petitioner told Watson that he could not obtain a

car loan while their case was pending.     Watson told petitioner

that petitioners’ file was supposed to be in Melbourne and that

she had been unable to find it.   Petitioner brought records to

Watson on November 7, 2001, but personnel in respondent’s

Melbourne examination division could not work on petitioners’

case because they did not have petitioners’ file.     Watson began

looking for petitioners’ file on November 7, 2001.     Watson

learned that Arthur Washburn (Washburn), an employee of

respondent in PSP, had signed a transmittal document for
                              - 10 -

petitioners’ file.   Watson called Washburn, and he found

petitioners’ file on November 7, 2001.

     Petitioner called Watson on November 7, 2001, to ask her to

give him a statement that respondent was trying to resolve his

case.

     Washburn delivered the file to Watson on November 8, 2001.

On that day, Watson called respondent’s examination division and

asked for an expedited audit of petitioners’ returns when she

received them.   Watson did not work on petitioners’ case during

unspecified dates between November 9, 2001, and January 17, 2002,

because she was busy working on cases calendared for trial that

month and because she took annual leave that she would otherwise

have lost.   Watson received petitioners’ original and amended

returns from an employee of respondent on December 5, 2001.

     Watson resumed working on petitioners’ case on January 17,

2002.   On January 24, 2002, using some of the checks petitioner

had provided, Watson showed him that the amounts that petitioners

had reported on their original returns for telecommunications

expenses were correct.   Petitioner agreed that Watson was

correct.

     Watson told petitioner that petitioners must pay taxes they

owed to remove the lien.   On January 24, 2002, petitioner told

Watson that petitioners wanted to file an offer in compromise

because they did not have enough money to pay the tax and
                                - 11 -

interest.     Watson told petitioners that they needed to file

returns for 2000 and 2001 that had not been filed.     Watson sent

offer in compromise forms to petitioners, closed the case on

January 24, 2002, and so informed petitioners.

     Petitioners submitted an offer in compromise on May 24,

2002.     In it, petitioners did not check the box to indicate

whether the offer was on account of doubt as to liability or as

to collectibility and did not state an amount to settle their

case.     Respondent returned the offer in compromise because

petitioners had not filed their 2000 or 2001 return.

     Petitioners submitted another offer in compromise on June 3,

2002, in which they offered to pay $850 to satisfy their

liabilities for the years in issue.      They also submitted a Form

433-B for their business in which they separated petitioner’s

personal income and gross business receipts.     Petitioners did not

check the box on the form to indicate whether the offer was on

account of doubt as to liability or as to collectibility.

     3.      The Taxpayer Advocate Service

        On June 10, 2002, petitioners wrote to respondent’s Taxpayer

Advocate Service office in Jacksonville, Florida, and asked it to

expedite the processing of their offer in compromise and to

release the lien.     Petitioners wanted their offer in compromise

to be considered by an office near their home.     On June 13, 2002,

Diane Wilkes (Wilkes), an employee in respondent’s Taxpayer
                              - 12 -

Advocate Service office, wrote to petitioners to tell them that

she was working on their case and would contact them by June 28,

2002.

     Around June 17, 2002, Wilkes asked petitioner to provide

letters from his creditors stating that they would not sell

products to him because of the tax lien.     On June 18, 2002,

Wilkes spoke to Watson, who said that petitioners’ case had not

been released from Appeals as required to begin processing

petitioners’ offer in compromise and that she would check to see

what had to be done to release it.     Watson called Wilkes later

that day and said that she had been unable to identify who to

contact to release petitioners’ case from Appeals.

     Petitioner called Wilkes on June 18, 2002, and asked what

her office could do for petitioners.     Wilkes told petitioner she

could monitor the processing of petitioners’ offer in compromise,

which normally takes 6 to 12 months.     Wilkes also told petitioner

that only respondent’s collections office could release the tax

lien.   Wilkes told petitioner that he had 2 weeks to send letters

to her from his creditors stating that they would not do business

with him because of the tax lien.

     On June 20, 2002, petitioner faxed to Wilkes a letter from a

creditor stating that, because of the lien, petitioner’s

purchases had to be cash on delivery.     Wilkes told petitioner

that the letter was not enough to justify releasing the lien.       On
                                - 13 -

June 25, 2002, petitioner faxed three more letters to Wilkes from

third parties stating that the lien and petitioner’s credit

reports showing the lien had caused them to eliminate or limit

their line of credit to petitioner’s business.

     On July 1, 2002, respondent’s Brookhaven Service Center in

Holtsville, New York, received a note from petitioner marked

“URGENT” stating that the tax lien was causing him to lose

business.   Petitioner attached the three letters he had provided

to Wilkes from third parties.    Around that time, petitioner lost

the Godfather Pizza account (17 stores), which was his largest

account.    On July 1, 2002, respondent’s Brookhaven Service Center

received an offer in compromise from petitioners in which they

proposed to settle their 1991-95 tax liability for $900.

     On July 2, 2002, petitioners filed their income tax returns

for 2000 and 2001 with the Taxpayer Advocate Service office.   In

them, petitioners reported net losses for petitioner’s business

of $15,180 for 2000 and $18,064 for 2001 and net income from

renting equipment of $44,727 for 2000 and $50,699 for 2001.

     Petitioner told Wilkes on July 2, 2002, that he had called

the offer in compromise unit daily and had spoken with Laura

Greco (Greco).   Wilkes told petitioner that she could not

intervene in the offer in compromise process, but that she would

call Greco.
                              - 14 -

     On July 3, 2002, Wilkes called Greco.   Greco told her that

she could not work on petitioners’ offer in compromise because

petitioners’ account had a collection due process code on it and

the code to release it was not present in their account.    Wilkes

tried to find which Internal Revenue Service (IRS) office could

provide the collection due process release code for petitioners’

account.   She told petitioner on July 5, 2002, that she was

trying to correct the codes entered into petitioners’ account so

that respondent could process petitioners’ offer in compromise.

     Wilkes discussed petitioners’ case with her group manager on

July 8, 2002, and prepared a letter to petitioners stating that

the lien was not causing a hardship to petitioners because the

lien was not preventing petitioner from doing business.    The

group manager said that she could enter the appropriate code in

respondent’s computer system to release petitioners’ case so that

petitioners’ offer in compromise could be considered if Wilkes

would fax her the collection due process “closing letter” (not

otherwise described in the record).    Wilkes could not find the

closing letter in the file.   Wilkes called Watson, and Watson

faxed a copy of the closing letter to Wilkes on July 9, 2002.

Wilkes then faxed the letter to the group manager on July 9,

2002.

     On July 23, 2002, Wilkes wrote petitioners and said (a)

respondent would not release the Federal tax lien and that it
                                - 15 -

would remain in effect until petitioners’ taxes were paid in

full, their liability was satisfied through an offer in

compromise, or the statute of limitations prevented collection;

(b) she had transferred petitioners’ offer in compromise to the

Jacksonville office for processing; and (c) she was closing her

file on petitioners.

     On September 5, 2002, Watson gave petitioners written payoff

figures for their taxes dues for 1991-95 if paid by September 16,

2002.     On September 24, 2002, Watson gave petitioners written

payoff figures for their taxes due for their taxes due for 1991-

95 if paid by September 30, 2002.

     4.      Payment of Tax and Interest

        Petitioners borrowed money using their residence as

collateral and, on October 8, 2002, paid their taxes due in full

as follows:     $2,780.56 for 1991, $3,455.85 for 1992, $2,417.09

for 1993, $3,946.01 for 1994, and $991.77 for 1995.     Petitioners

paid interest of $1,320.14 for 1991, $1,323.04 for 1992, $868.18

for 1993, $1,296.73 for 1994, and $288.69 for 1995.

        Petitioners sent Wilkes a letter on October 9, 2002, and

enclosed a copy of a Form 843, Claim for Refund and Request for

Abatement, in which they requested abatement of interest that had

accrued for their 1991-95 tax years.

        On March 21, 2003, respondent abated the additions to tax

for failure to timely file under section 6651(a)(1) and for
                              - 16 -

failure to pay tax shown on the return under section 6651(a)(2)

for 1991-95, and abated interest on these additions to tax.

     On March 28, 2003, petitioner telephoned the Taxpayer

Advocate Service office and spoke with Christy Elliott (Elliott).

Petitioner also wrote to Elliott on that date to confirm that he

told her that he had submitted Form 843 on October 9, 2002.

     On March 31, 2003, respondent refunded the overpayments

resulting from the abatement of additions to tax and related

interest on March 21, 2003.

     On April 16, 2003, respondent returned petitioners’ Form 843

because petitioners had not indicated why respondent should abate

interest for petitioners.   On April 21, 2003, petitioner sent

Elliott copies of some of petitioners’ correspondence to and from

respondent.

     On May 13, 2003, Diane Elm (Elm), accounts management,

respondent’s Ogden, Utah, Service Center, wrote to tell

petitioners that the Service Center had not completed the

processing necessary to resolve petitioners’ case.   Elm said that

the IRS would contact petitioners within 60 days.

                              OPINION

A.   Contentions of the Parties and Background

     Petitioners contend that interest should be abated from

March 18, 1999 (when petitioners sent a letter to Davis stating

that their returns were wrong), through October 8, 2002, (when
                             - 17 -

petitioners fully paid their taxes and interest for 1991-95)

because respondent’s employees had:   (1) Erroneously advised

petitioners to seek relief through an offer in compromise; and

(2) delayed working on petitioners’ case because they lost

petitioners’ files, took maternity leave, regular leave, and job-

related training and delayed it to work on other cases.

Respondent contends that respondent’s denial of petitioners’

request to abate interest was not an abuse of discretion.

     The Commissioner may abate interest assessed on any

deficiency or payment of tax to the extent that any error or

delay in payment of the tax is attributable to erroneous or

dilatory performance of a ministerial act by an officer or

employee of the Commissioner, and the taxpayer caused no

significant aspect of the delay.   Sec. 6404(e)(1).4    A


     4
        Sec. 6404(e)(1), as enacted in 1986 and as applicable
here, provides:

          SEC. 6404(e). Assessments of Interest
     Attributable to Errors and Delays by Internal Revenue
     Service.--

               (1) In general.--In the case of any
          assessment of interest on--

                    (A) any deficiency
               attributable in whole or in part to
               any error or delay by an officer or
               employee of the Internal Revenue
               Service (acting in his official
               capacity) in performing a
               ministerial act, or

                                                       (continued...)
                              - 18 -

ministerial act is a procedural or mechanical act that does not

involve the exercise of judgment or discretion by the

Commissioner.   Sec. 301.6404-2T(b)(1), Temporary Proced. & Admin.

Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987).

     We apply an abuse of discretion standard in reviewing the

Commissioner's determination not to abate interest.     Lee v.

Commissioner, 113 T.C. 145, 149 (1999); Krugman v. Commissioner,

112 T.C. 230, 239 (1999).   To be eligible for relief under

section 6404(e), the taxpayer must establish a correlation

between the alleged error or delay by the Commissioner and a



     4
      (...continued)
                     (B) any payment of any tax
                described in section 6212(a) to the
                extent that any delay in such
                payment is attributable to such
                officer or employee being dilatory
                in performing a ministerial act,

          the Secretary may abate the assessment of all
          or any part of such interest for any period.
          For purposes of the preceding sentence, an
          error or delay shall be taken into account
          only if no significant aspect of such error
          or delay can be attributed to the taxpayer
          involved, and after the Internal Revenue
          Service has contacted the taxpayer in writing
          with respect to such deficiency or payment.

     In 1996, Congress amended sec. 6404(e) to permit abatement
of interest that accrues as a result of an “unreasonable” error
or delay in performing a ministerial or “managerial” act. Sec.
6404(e)(1)(A) and (B); Taxpayer Bill of Rights 2 (TBOR 2), Pub.L.
104-168, sec. 301(a), 110 Stat. 1457 (1996). The 1996 amendment
applies to deficiencies or payments for tax years beginning after
July 30, 1996, TBOR 2 sec. 301(c), 110 Stat 1457, and thus does
not apply here.
                                - 19 -

specific period for which interest should be abated as a result

of that error or delay.     Palihnich v. Commissioner, T.C. Memo.

2003-297; Donovan v. Commissioner, T.C. Memo. 2000-220; Douponce

v. Commissioner, T.C. Memo 1999-398.

B.   March 18, 1999, to June 25, 2001

     1.   Alleged Erroneous Advice by Davis

     Petitioners contend that Davis erred in recommending that

they file an offer in compromise and that she should have instead

recommended that they address issues concerning telecommunication

expenses when petitioner told her on March 18, 1999, that they

did not include all telecommunication expenses in their original

returns for 1991-95.   We disagree that this is an appropriate

basis to consider relief for petitioners because Davis’s advice

(the merit of which we need not consider) requires judgment and

thus was not ministerial.    Sec. 301.6404-2T(b)(1), Temporary

Proced. & Admin. Regs., supra.

     2.   Maternity Leave

     Petitioners contend that respondent delayed working on their

case during an unspecified period between March 18, 1999, and

June 25, 2001, because Davis was on maternity leave.    We disagree

that this is an appropriate basis to consider relief for

petitioners.   Granting maternity leave to an employee of the

Commissioner assigned to the taxpayer’s case without reassigning

the case is not a ministerial act under section 6404(e)(1).      Sec.
                               - 20 -

301.6404-2T(b)(1) and (2), Example (4), Temporary Proced. &

Admin. Regs., supra.

     3.    Job-Related Training

     Petitioners point out that Watson attended job-related

training from April 30 to May 11, 2001, and contend that this

delay is due to a ministerial act.      We disagree.

     The decision to send Watson to job-related training and to

not reassign the case is not a ministerial act under section

6404(e)(1).   Durham v. Commissioner, T.C. Memo. 2004-125; Goettee

v. Commissioner, T.C. Memo. 2003-43; Jean v. Commissioner, T.C.

Memo. 2002-256; Camerato v. Commissioner, T.C. Memo. 2002-28;

Jacobs v. Commissioner, T.C. Memo. 2000-123; sec.

301.6404-2T(b)(2), Example (4), Temporary Proced. & Admin. Regs.,

supra.

C.   June 26 to November 7, 2001

     Respondent lost petitioners’ file from June 26 to November

7, 2001.   The Commissioner’s loss of a taxpayer’s file is a

ministerial act.    Palihnich v. Commissioner, supra.   Respondent

concedes that interest that accrued during this period should be

abated.

     Petitioners contend that respondent lost petitioners’ files

many other times.   However, petitioners have not identified those

times, and the record does not support that conclusion.
                               - 21 -

D.   November 8, 2001, to January 23, 2002

     Watson did not work on petitioners’ case during unspecified

periods between November 8, 2001, and to January 17, 2002,

because she was working on other cases and she took annual leave.

Petitioners contend that Watson’s caseload and her annual leave

were ministerial acts which caused a delay in working on

petitioners’ case.

     Deciding how and when to work on cases, on the basis of an

evaluation of the entire caseload and workload priorities, is not

a ministerial act.    Bartelma v. Commissioner, T.C. Memo. 2005-64;

Mekulsia v. Commissioner, T.C. Memo. 2003-138, affd. 389 F.3d 601

(6th Cir. 2004).    Granting annual leave is not a ministerial act.

See Scott v. Commissioner, T.C. Memo. 2000-369.    There is no

evidence that a ministerial act delayed respondent’s

consideration of petitioners’ case from November 9, 2001, to

January 23, 2002.

E.   January 24 to July 23, 2002

     We next decide whether respondent’s failure to enter the

code to release petitioners’ file from CDP status from January 24

to July 23, 2002, was a ministerial act for which they are

entitled to relief under section 6404(e).    The code releasing

petitioners’ case from CDP status should have been entered on

January 24, 2002, when Watson closed their CDP file.    The record

is silent as to when the code was entered.    On July 23, 2002,
                              - 22 -

Wilkes wrote petitioners and said she had transferred

petitioners’ offer in compromise to the Jacksonville office for

processing.   We infer that the CDP release code was entered on

July 23, 2002, because respondent was able to work on

petitioners’ case on that date.   Everything in the record

relating to entering the CDP release code in petitioners’ file

suggests that the delay in doing so was a ministerial act, sec.

301.6404-2T(b)(1), Temporary Proced. & Admin. Regs., supra, and

that the delay was an error, see Palihnich v. Commissioner, T.C.

Memo. 2003-297 (failure to pay tax attributed to the

Commissioner’s loss of file); Jacobs v. Commissioner, T.C. Memo.

2000-123 (lack of evidence held against the Commissioner because

the Commissioner is in the best position to know what actions

were taken by IRS officers and employees during the period for

which the taxpayers’ abatement request was made); Douponce v.

Commissioner, supra (failure to pay tax attributed to the

Commissioner’s failure to provide correct payoff amount).

     However, petitioners are not entitled to relief under

section 6404(e) from January 24 to July 2, 2002, because they did

not file their tax returns for 2000 and 2001, as required by

respondent before considering their offer in compromise, until

July 2, 2002.   Thus, a significant aspect of respondent’s delay

was due to petitioners.
                                - 23 -

     We consider next whether respondent’s failure to enter the

proper code from July 3 to July 23, 2002, delayed petitioners’

payment of tax.   Petitioners fully paid their taxes and interest

for 1991-95 when respondent finished working on their case.     We

believe that they would have fully paid earlier if respondent had

acted more promptly, and that failure to enter the proper code

delayed petitioners’ payment of tax.

     The decision whether to abate interest may take into account

an error or delay only where no significant aspect can be

attributed to the taxpayer.     Sec. 6404(e)(1) (flush language).

Petitioners had no role in respondent’s failure to enter the

proper CDP release code.

     We conclude that respondent’s failure to abate interest from

July 3 to July 23, 2002, was an abuse of discretion.

F.   July 24 to October 8, 2002

     Petitioners fully paid the taxes and interest due for 1991-

95 on October 8, 2002.     On a date not specified in the record

between July 24 and October 8, 2002, petitioners decided to

borrow money to fully pay their 1991-95 taxes and interest.

Watson gave petitioners payoff figures for those years in early

and late September 2002.     We conclude that no ministerial act by

respondent caused petitioners to delay paying their taxes from

July 24 to October 8, 2002.
                             - 24 -

G.   Conclusion

     Respondent’s decision not to abate interest for the period

from July 3 to July 23, 2002, was an abuse of discretion.

Respondent’s decision not to abate interest for any remaining

period, not previously conceded, was not an abuse of discretion.

     To reflect the foregoing,


                                             Decision will be

                                        entered under Rule 155.
