

     1.   Section 6404(e)(1)6

     Under section 6404(e)(1), the Commissioner may abate part or

all of an assessment of interest on any deficiency or payment of

income tax to the extent that any error or delay in payment is

attributable to erroneous or dilatory performance of a



     5
      “Appropriate Internal Revenue Service personnel” are those
employees who are reviewing the taxpayer’s information or
arguments, or employees who, in the normal course of procedure
and administration, would transfer the information or arguments
to the reviewing employees. Sec. 301.7430-5(c)(1), Proced. &
Admin. Regs.
     6
      To the extent that petitioner’s allegations in the present
case are based on sec. 6404(a)(2) and are in the nature of a
claim for abatement that is prohibited by sec. 6404(b), we do not
consider them in deciding whether respondent’s position with
respect to petitioner’s petition for abatement of interest under
sec. 6404(e) was substantially justified. See sec. 6404(b);
Urbano v. Commissioner, 122 T.C. 384, 395 (2004); Kosbar v.
Commissioner, T.C. Memo. 2003-190.
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ministerial act by an officer or employee of the IRS.7   A

ministerial act means a procedural or mechanical act that does

not involve the exercise of judgment or discretion and occurs

during the processing of a taxpayer’s case after all the

prerequisites to the act, such as conferences and review by

supervisors, have taken place.   See Lee v. Commissioner, 113 T.C.

145 (1999); sec. 301.6404-2T(b)(1), Temporary Proced. & Admin.

Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987).8   In contrast, a

decision concerning the proper application of Federal tax law, or

other applicable Federal or State laws, is not a ministerial act.

See sec. 301.6404-2T(b)(1), Temporary Proced. & Admin. Regs.,

supra.

     In the legislative history of section 6404(e), Congress

observed that “issuing either a statutory notice of deficiency or




     7
      Sec. 6404(e) was amended by the Taxpayer Bill