                          T.C. Memo. 2002-158



                        UNITED STATES TAX COURT



                 MAURICE C. SAINTE-YVES, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



        Docket Nos. 4992-99, 844-00.     Filed June 24, 2002.



     Daniel J. Leer, for petitioner.

     H. Clifton Bonney, Jr., for respondent.



                MEMORANDUM FINDINGS OF FACT AND OPINION


     SWIFT, Judge:     Respondent determined that petitioner is not

entitled to an abatement of interest under section 6404(e)(1) on

petitioner’s Federal income tax deficiencies for 1983, 1984, and

1985.
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     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue, and

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

Procedure.

     The issue for decision is whether petitioner is entitled to

an abatement of interest accruing on the above Federal income tax

deficiencies.


                        FINDINGS OF FACT

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

     At the time the petition was filed, petitioner resided in

San Francisco, California.

     In 1983, petitioner purchased a limited partner interest in

Bishop Investment Group I (Bishop), which in turn invested in

Barrister Equipment Associates (Barrister), a tax-sheltered

limited partnership.

     Upon audit of Barrister for 1983 and 1984, respondent

disallowed losses and credits claimed by Barrister.   In Anderson

Equip. Associates, et al., Barrister Associates, Tax Matters

Partner v. Commissioner, docket No. 27745-89, respondent’s

adjustments to Barrister’s claimed losses and credits were agreed

to by the tax matters partner, and a stipulated decision was

entered consistent with that settlement.

     In connection with computational adjustments that were made

by respondent at the partner level relating to the above
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adjustments that had been agreed to at the Barrister partnership

level, respondent’s Appeals Offices in Fresno, California

(Fresno) and in Brooklyn, New York (Brooklyn) granted to a number

of the Barrister partners their requests under section 6404(e)(1)

for abatement of related statutory interest.

     Petitioner made a similar request for abatement of interest

with regard to his Federal income tax deficiencies for 1983,

1984, and 19851 relating to the disallowed Barrister claimed

losses and credits.   In his request, among other things,

petitioner alleged that his tax deficiencies relating to

Barrister were caused by erroneous advice given by a

representative of respondent to the tax matters partner of Bishop

as to the allowability of the Barrister losses and credits.

Petitioner’s request for abatement of interest was denied by

respondent.

     Petitioner administratively appealed respondent’s denial of

petitioner’s request for abatement of interest.   Petitioner’s

appeal was forwarded by respondent to respondent’s Appeals Office

in San Francisco, California (San Francisco).   Petitioner,

however, requested that the appeal be transferred from

respondent’s San Francisco Appeals Office to either respondent’s

Fresno or Brooklyn Appeals Office in an effort to obtain the same


1
     Computational adjustments for 1985 were the result of
carryforward tax credits claimed by petitioner relating to
Barrister.
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treatment in regard to his request for abatement of interest as

other Barrister partners had received from respondent (i.e.,

approval).

     Respondent’s San Francisco Appeals Office sustained

respondent’s denial of petitioner’s request for abatement of

interest and denied petitioner’s request for a transfer of his

appeal.

     Petitioner filed under section 6404(i) the instant petition

for review of respondent’s denial of petitioner’s request for

abatement of interest.


                              OPINION

     Generally, we have jurisdiction to review respondent’s

denial of a taxpayer’s request under section 6404(e)(1) for

abatement of interest.   Sec. 6404(i).2




2
     In 1996, sec. 6404(g) (in 1998 redesignated as sec. 6404(i),
and in 2002 redesignated as sec. 6404(h)) was enacted, which gave
this Court jurisdiction to review respondent’s denial of a
taxpayer’s request under sec. 6404(e)(1) for abatement of
interest, effective for requests that were pending with
respondent after July 30, 1996. See Victims of Terrorism Tax
Relief Act of 2001, Pub. L. 107-134, sec. 112(d)(1)(B), (f), 115
Stat. 2434-2435; Internal Revenue Service Restructuring and
Reform Act of 1998, Pub. L. 105-206, sec. 3305(a), 112 Stat. 743;
Banat v. Commissioner, 109 T.C. 92, 95 (1997).
     Petitioner mailed a request for abatement of interest to
respondent on July 7, 1996. Petitioner’s request for abatement
of interest was denied by respondent on Aug. 7, 1996.
Accordingly, we have jurisdiction under sec. 6404(i) to review
respondent’s denial of petitioner’s request for abatement of
interest. See id.
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     Petitioner agrees that he has the burden of proving his

entitlement to an abatement of interest.   See Rule 142; Woodral

v. Commissioner, 112 T.C. 19, 23 (1999).

     As applicable to the years before us in this case, abatement

of interest may be available under section 6404(e)(1) with

respect to the portion of interest on tax deficiencies

attributable in whole or in part to errors or delays committed by

respondent in the performance of ministerial acts that occurred

after taxpayers were contacted in writing with respect to such

deficiencies.3   Ministerial acts are described as procedural or

mechanical acts that do not involve the exercise of judgment or

discretion by respondent.   See, e.g., Crawford v. Commissioner,

T.C. Memo. 2002-10 (citing sec. 301.6404-2T(b)(1), Temporary

Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987)4).

     The denial by respondent of the requested transfer of

petitioner’s appeal from respondent’s San Francisco Appeals

Office to either the Fresno or Brooklyn Appeals Office involved


3
     The 1996 amendments to sec. 6404(e)(1) limited respondent’s
authority to abate interest on tax deficiencies to situations
where the interest was attributable to “unreasonable” errors or
delays committed by respondent and expanded the situations in
which abatement of interest might be available to include
“managerial” acts (effective for taxable years beginning after
July 30, 1996). Taxpayer Bill of Rights 2, Pub. L. 104-168, sec.
301(a), (c), 110 Stat. 1457 (1996). This amendment is
inapplicable to the instant case.
4
     In 1998, sec. 301.6404-2T, Temporary Proced. & Admin. Regs.,
63 Fed. Reg. 70012 (Dec. 18, 1998), was finalized, effective for
tax years beginning after July 30, 1996.
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the exercise of respondent’s judgment.   This act did not

constitute a ministerial act for purposes of section 6404(e)(1).

See Crawford v. Commissioner, supra; Gaudet v. Commissioner, T.C.

Memo. 2001-309 (respondent’s denial of a taxpayer’s request for

the transfer of his case to another office did not constitute an

error or delay committed by respondent in the performance of a

ministerial act); cf. sec. 301.6404-2T(b)(2), Example (1),

Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163 (Aug. 13,

1987) (respondent’s failure to transfer a case to another office

after the requested transfer was approved constituted an error by

respondent in the performance of a ministerial act).

     Advice allegedly given by respondent’s representatives to

Bishop’s tax matters partner as to the allowability of the loss

deductions and credits relating to Barrister would not constitute

a ministerial act for purposes of section 6404(e)(1).   Oral or

written advice given by respondent to taxpayers regarding the

application of Federal tax law requires the exercise of judgment,

and does not constitute a ministerial act for purposes of section

6404(e)(1).   Katz v. Commissioner, 115 T.C. 329, 341 (2000);

Crawford v. Commissioner, supra.   Also, there is no statute that

gives respondent a mandate to abate interest on tax deficiencies

in order to treat similarly situated taxpayers alike, including

where those deficiencies are a result of partnership level
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proceedings under the TEFRA provisions.5   For the tax years at

issue, as previously stated, respondent only had statutory

authority to abate interest attributable to an error or delay

committed by respondent in the performance of a ministerial act,

which petitioner has not proven in this case.   See sec.

6404(e)(1).

     Because petitioner has failed to prove that respondent

committed an error or delay in the performance of a ministerial

act, we sustain respondent’s denial of petitioner’s request for

abatement of interest, and we need not decide various other

arguments made by petitioner.




5
     Title IV of the Tax Equity and Fiscal Responsibility Act of
1982 (TEFRA), Pub. L. 97-248, secs. 402-407(a), 96 Stat. 648-671,
applies to adjustments made by respondent to partnership tax
years beginning after Sept. 3, 1982, and therefore applies to
Barrister’s tax years 1983 and 1984.
     Under the TEFRA partnership provisions, supra, respondent is
required to offer consistent settlement terms to partners with
respect to the tax treatment of partnership items. Sec. 6224(c).
Partnership items include items of income, deduction, gain, loss,
credit, or refund, used in calculating the partnership’s taxable
year. Sec. 6231(a)(3); sec. 301.6231(a)(3)-1(a), Proced. &
Admin. Regs.
     The requested interest abatement at issue herein, however,
constitutes a computational adjustment, not a partnership item.
See sec. 6231(a)(3), (6); sec. 301.6231(a)(6)-1T(b), Temporary
Proced. & Admin. Regs., 52 Fed. Reg. 6779 (Mar. 5, 1987).
Computational adjustments include any interest attributable to
partner level adjustments made to reflect the treatment of
partnership items. Id. Moreover, adjustments made by respondent
to apply changes in partnership items resulting from partnership
proceedings to indirect partners (such as petitioner) are
computational adjustments. Sec. 6231(a)(6).
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To reflect the foregoing,



                                         Decisions will be entered

                                    for respondent.
