                 T.C. Summary Opinion 2004-130



                     UNITED STATES TAX COURT



                  DAVID A. BROWN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent*



     Docket No. 11482-02S.         Filed September 20, 2004.



     David A. Brown, pro se.

     Marc L. Caine, for respondent.



     WOLFE, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect at the time that the petition was filed.   Unless otherwise

indicated, all subsequent section references are to the Internal




     *
       This report is a supplement to Brown v. Commissioner,
T.C. Summary Opinion 2004-45, filed Apr. 6, 2004, hereafter
referred to as the “previous opinion”.
                               - 2 -

Revenue Code as amended.   The decision to be entered is not

reviewable by any other court, and this opinion should not be

cited as authority.

     In the previous opinion we remanded this case “for further

proceedings as to 1996 concerning the issue of an abatement of

interest and particularly whether petitioner made a payment of

the amount due in accordance with instructions from respondent’s

representative (Ms. Ogle).”   We ordered that respondent offer

petitioner an administrative hearing and further ordered that

each party submit a status report.     The parties have complied

with our order.

     In his status report petitioner states his position as

follows:

     A final payment due was made in 1999 based on an amount
     given to me by the Taxpayer Advocate Office (a
     representative of the IRS). The records of that office
     are no longer available to substantiate my claim. The
     IRS has substantially inflated the interest amount of
     which I seek abatement, before and after final payment
     in 1999. It is the IRS failed process, which has
     contributed to the prolonged nature of this case.

     In support of this position petitioner explains that he met

with Settlement Officer Elissa Sharp and Robert A. Rosenblatt,

Appeals Team Manager.1   Petitioner complains that Ms. Sharp was

“unprofessional,” that he had to request Mr. Rosenblatt’s




     1
         Petitioner described them as “Appeals Officers”.
                                 - 3 -

presence, and that “The Appeals Office did not grant a fair

hearing”.

     Petitioner further explains that in preparation for his

meeting with Ms. Sharp and Mr. Rosenblatt he called Ms. Diane

Hakam, Department Manager of the Taxpayer Advocate’s Office in

Holtsville, Long Island.   As noted above and in our previous

opinion, petitioner alleges that in October 1999, Ms. Ogle of the

Taxpayer Advocate’s Office provided petitioner a final payout

figure of $14,172 for resolution of his outstanding tax

obligations for 1995 and 1996.    Petitioner states that Ms. Hakam

informed him that a file was not available for his examination

because the records in question had been destroyed after one year

in accordance with office policy.    Petitioner explains that he

“did not request such a document in 10/99 because I trusted the

taxes were payed in full, relying on representation of the

Taxpayer Advocate’s Office.”   Petitioner describes his

attachments to his status report as a “fax from me to Ms. Ogle

confirming the final tax payment due” and four other documents

allegedly showing his correspondence with employees of the IRS

prior to the “final payment date”.

     Respondent’s status report states that petitioner appeared

for hearing at the Long Island, New York Appeals Office so that

the settlement officer might consider the specific issues

mentioned in our Order dated April 9, 2004.    Respondent further
                              - 4 -

reports that on August 10, 2004, respondent issued a Supplemental

Notice of Determination Concerning Collection Action(s) under

Section 6330 Issued July 28, 2004 (Supplemental Notice) in which

Settlement Officer Elissa Sharp considered the issue whether

petitioner made a payment pursuant to respondent’s

representative’s instructions and also determined that petitioner

has no cause for abatement of interest for 1996.   Respondent

attached a copy of the Supplemental Notice.

     In the Supplemental Notice, respondent’s Appeals Team

Manager, Robert A. Rosenblatt, and Settlement Officer, Elissa

Sharp (hereafter collectively referred to as the settlement

officer), report that after delays and at least one cancelled

appointment petitioner appeared for the hearing conducted in the

presence of Mr. Rosenblatt and Ms. Sharp on July 28, 2004.    The

Supplemental Notice states that at the hearing petitioner stated

that he had paid the amount Ms. Ogle told him to pay.   When asked

to present written substantiation of this claim, petitioner

presented a copy of Form 12153, Request for a Collection Due

Process Hearing, requesting the initial hearing, a photocopy of

an allegedly faxed letter requesting assistance from a Bonnie

Fuentes, whose position in this matter is unexplained, a letter

from Ms. Ogle dated October 6, 1999, requesting a revised

Schedule D, Capital Gains and Losses, reporting all petitioner’s

wife’s stock sales, and a photocopy of a handwritten letter
                               - 5 -

allegedly faxed to Ms. Ogle on October 31, 1999.    In the letter

he stated:   “I would like to mail a check of $14,172 total for

1995 & 1996, which you indicated was amount due.”    The settlement

officer states that there were no corresponding verifications of

the faxed transmissions or any documents from Ms. Ogle stating

that the correct amount of tax penalties was $14,172.    The

settlement officer further states:     “On May 25, 2004, Ms. Sharp

contacted Ms. Ogle who stated she had no recollection of the case

and that the files had been destroyed as per their procedures.”

     The settlement officer summarized respondent’s transcript

concerning petitioner for 1995 and 1996 and concluded that the

underpayment amount in dispute was equal to the $368

miscellaneous penalty assessed for 1995 and the $2,207.72 late

filing penalty assessed for 1996.    The settlement officer

concludes that the circumstances show that petitioner “intended

not to pay the miscellaneous penalty for 1995 and the late filing

penalty for 1996.”

     With respect to the abatement of interest the settlement

officer points out that section 6404(e) allows abatement of

interest if the IRS’s error or delay is in performing a

“ministerial” act.   The settlement officer argues that the IRS

action here concerns the application of the law and not

ministerial acts and that any delays or errors are attributable

to the taxpayer.
                                 - 6 -

     The dispute here comes down to a question whether Ms. Ogle

reached an agreement with petitioner for settlement of his tax

obligations concerning 1995 and 1996 for $14,172.       The documents

and materials presented by petitioner indicate that he proposed a

settlement.   There is no evidence that Ms. Ogle agreed to the

settlement except petitioner’s unsupported testimony and

argument.   Petitioner’s explanation of his reason for failing to

obtain written evidence of his alleged settlement agreement is

unconvincing.   On this record we conclude that Ms. Ogle did not

agree with petitioner on a settlement figure, although petitioner

may have made such a proposal.    Consequently we agree with

respondent that because petitioner caused the delay in the

payment of the correct amount, he is not entitled to abatement of

interest under section 6404(e).    We conclude that petitioner has

had a fair hearing on the issues presented in the previous case

and in this case on remand and that respondent’s determination as

set forth in the Supplemental Notice was not an abuse of

discretion.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                         Decision will be entered

                                 for respondent.
