                        T.C. Memo. 1999-364



                      UNITED STATES TAX COURT



                 GERALD R. WEISS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 14555-98.                  Filed November 2, 1999.



     Gerald R. Weiss, pro se.

     Laurel M. Robinson, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION

     GERBER, Judge:   Respondent denied petitioner’s claim for

abatement of interest under section 6404(e).1   Petitioner seeks

the abatement of interest on a deficiency derived from a



     1
        Unless otherwise indicated, section references are to the
Internal Revenue Code as amended and in effect for the period
under consideration, and Rule references are to this Court’s
Rules of Practice and Procedure.
                               - 2 -


partnership adjustment.   Petitioner’s claim is based on his

belief that respondent should have provided him notice of the

adjustment and deficiency at an earlier date, thereby allowing

him to pay the deficiency earlier and minimize any accruing

interest.   The issue for our consideration is whether respondent

abused his discretion by denying the request for abatement.

                          FINDINGS OF FACT

     The parties’ stipulated facts and exhibits are incorporated

by this reference.

     At the time his petition was filed, petitioner resided in

Dublin, California.   In 1981, petitioner became a partner in

Brentwood Investors (Brentwood).   While petitioner was a partner

in Brentwood, it became a partner in the Wilshire Wellesley

Associates partnership (Wilshire Wellesley), which, in turn,

became a partner in the Golden Gate Associates partnership

(Golden Gate).   Brentwood had 10 partners, Wilshire Wellesley had

33, and Golden Gate had 28.   Donald J. Kuehne was the tax matters

partner (TMP) of Golden Gate and of Wilshire Wellesley and the

managing general partner of Brentwood.

     Respondent audited Golden Gate for the years 1982, 1983, and

1984.   In connection with the 1984 audit of Golden Gate,

respondent contacted petitioner in September 1991, requesting a

copy of his 1984 Federal tax return.   In October 1991,

petitioner, by letter, supplied the return and requested
                               - 3 -


preliminary or final notice of any partnership adjustment

concerning the 1984 return so that petitioner would have the

opportunity to stop the running of interest, ostensibly by paying

the tax.   Petitioner’s letter included his name, address, Social

Security number, and respondent’s reference number but did not

disclose the amount of petitioner’s profits interest in the

Golden Gate partnership or in the two pass-through partnerships

through which he held an indirect interest in Golden Gate.    In

April 1996, respondent contacted him once again, this time in

connection with the audit of Golden Gate’s 1982 return, and

requested a copy of petitioner’s Federal tax return for 1982.

Petitioner provided the return, confirmed his address and Social

Security number, and asked for documentation concerning the

expiration of the period for assessment and/or information that

would permit the opportunity to stop the accrual of interest with

respect to petitioner’s 1982 tax year.

     In February 1997, respondent sent petitioner two letters.

The first informed him that he was not subject to any partnership

adjustment for either 1983 or 1984.    The second letter informed

him that he was subject to a partnership adjustment concerning

Golden Gate’s 1982 returns.   In April 1997, petitioner paid the

1982 deficiency in the amount of $616.   In May 1997, petitioner

paid the interest due on the deficiency for tax year 1982 in the

amount of $1,798.02.
                                - 4 -


     Before payment, petitioner filed a Claim for Refund and

Request for Abatement in March 1997.     In it, he requested an

abatement of interest for the period from November 1, 1991, to

March 21, 1997, in the amount of $864.56.     This period

corresponds to the time between which petitioner wrote the 1991

letter and filed his 1997 request for abatement.     In support of

his claim, petitioner stated that he tried to stop the accrual of

interest when he sent the October 1991 letter.

     Respondent reviewed petitioner’s request and disallowed his

claim for abatement of interest, stating that there were no

“errors or delays that merit abatement of interest in our review

of available records and other information for the period from

11/1/91 to 3/21/97.”   Petitioner asks us to review respondent’s

failure to abate interest for an abuse of discretion.

                               OPINION

     The Commissioner’s power to abate an assessment of interest

involves the exercise of discretion.     See Lee v. Commissioner,

113 T.C. 145 (1999).   Though we shall give the Commissioner’s

decision some deference, we have the authority to determine

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

of that discretion.    See sec. 6404(i); Lee v. Commissioner,

supra.   A taxpayer will be given an abatement only if he or she

can prove that the Commissioner exercised this discretion

arbitrarily, capriciously, or without sound basis in fact or law.
                               - 5 -


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

bears the burden of showing an abuse of discretion.    See Rule

142(a).   Our review is limited to whether there was an abuse of

respondent’s discretion, which is a question of fact.    See Estate

of Gardner v. Commissioner, 82 T.C. 989, 1000 (1984).

     Section 6404(e)(1) provides that the Commissioner may abate

the assessment of interest on any deficiency attributable to any

error or delay by an officer or employee of the Internal Revenue

Service, acting in his or her official capacity and performing a

ministerial act.2   Congress intended abatement of interest to be

used in instances “where failure to abate interest would be

widely perceived as grossly unfair.”   H. Rept. 99-426 (1985),

1986-3 C.B. (Vol. 2) 844; S. Rept. 99-313 (1985), 1986-3 C.B.

(Vol. 3) 208.   Section 6404(a) provides that the Commissioner is

authorized to abate the unpaid portion of the assessment of any

tax or any liability in respect thereof that is (1) excessive in




     2
        In 1996, sec. 6404(e) was amended under sec. 301 of the
Taxpayer Bill of Rights 2, Pub. L. 104-168, 110 Stat. 1452, 1457
(1996), to permit respondent to abate interest with respect to an
“unreasonable” error or delay resulting from “managerial” and
ministerial acts. The new provision applies to interest accruing
with respect to deficiencies or payments for tax years beginning
after July 30, 1996; therefore, it is not applicable to the case
at bar.
                               - 6 -


amount,3 (2) assessed after the expiration of the period of

limitations properly applicable thereto, or (3) erroneously or

illegally assessed.   See Woodral v. Commissioner, supra.

     Before the Commissioner may make the decision to abate

interest under section 6404(e)(1), three elements must be

present.   First, a Commissioner’s employee must make an error or

delay when performing a ministerial act.   See sec. 6404(e)(1).

An act is ministerial when it is “a procedural or mechanical act

that does not involve the exercise of judgment”.     Sec. 301.6404-

2T(b)(1), Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163

(Aug. 13, 1987).   Second, the taxpayer’s actions must not

contribute significantly to the error or delay.     See sec.

6404(e)(1); sec. 301.6404-2T(a)(2), Temporary Proced. & Admin.

Regs., 52 Fed. Reg. 30162 (Aug. 13, 1987).   Third, the

Commissioner must have contacted the taxpayer in writing about

the deficiency or payment.   See sec. 6404(e)(1).

     Petitioner alleges that respondent’s employee(s) committed

an error sufficient to cause abatement by the failure to send

notices about the administrative proceedings regarding Golden




     3
        Though petitioner alleges that the amount of interest was
“excessive”, petitioner makes no allegation that the interest was
computed incorrectly but apparently uses “excessive” to refer to
the accumulation of interest due to the delay he perceives to be
the fault of respondent. Petitioner’s position relates to the
third possible basis for abatement; i.e. erroneous assessment.
                               - 7 -


Gate in response to petitioner’s 1991 letter.4   This allegation,

however, does not present a cognizable claim under section

6404(e)(1) because any “error or delay in performing a

ministerial act shall be taken into account only if it occurs

after the Service has contacted the taxpayer in writing with

respect to the deficiency or payment.”    (Emphasis added.)   Sec.

301.6404-2T(a)(2), Temporary Proced. & Admin. Regs., 52 Fed. Reg.

30163 (Aug. 13, 1987).   The Internal Revenue Service wrote to

petitioner in 1991 to request a copy of his 1984 tax returns and

in 1996 to request a copy of his 1982 tax returns.   No written

contact concerning 1982 was made by the Internal Revenue Service

until 1996, and the second contact was made February 1997, when a

notice of deficiency was sent for 1982.   Irrespective of whether

the 1996 request or the 1997 notice of deficiency should be

considered the first “writing with respect to the deficiency or

payment”, petitioner did not request abatement from either of

those dates, nor did he demonstrate that some error or delay had

occurred after either of those dates.    In fact, petitioner did

receive the 1997 notice of deficiency approximately 10 months



     4
        The amount and claim in petitioner’s request for
abatement was based on the date his 1991 letter was sent to the
Internal Revenue Service, even though that letter referenced a
year for which the Internal Revenue Service determined no
adjustment was needed. Though he mentions that he sent a second
letter requesting notice in 1996, he made no alternate request
for abatement from the date of the 1996 letter.
                                 - 8 -


after requesting that notices be sent to him.    He has not shown

that any other notices were created and/or were not sent to him

in error after his 1996 request for notice.

     Because the claim for abatement was not cognizable, there

was no abuse of discretion in respondent’s denial of petitioner’s

request for interest abatement.

     To reflect the foregoing,


                                 Decision will be entered for

                         respondent.
