1 Unless otherwise indicated, section references are to the

Internal Revenue Code of 1986, as amended. Rule references are

to the Tax Court Rules of Practice and Procedure.

 T.C. Memo. 2003-238

UNITED STATES TAX COURT

LAWRENCE S. AHMAOGAK AND MYRNA AHMAOGAK, Petitioners v. 

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 10850-01. Filed August 11, 2003.

Mason D. Morisset, for petitioners.

Lisa M. Oshiro, for respondent.

MEMORANDUM OPINION

DAWSON, Judge: This case was assigned to Special Trial

Judge Lewis R. Carluzzo pursuant to section 7443A(b)(5) and Rules

180, 181, and 183.1 The Court agrees with and adopts the opinion

of the Special Trial Judge, which is set forth below.
- 2 -

2 Sec. 6404(h) was previously designated sec. 6404(i). See

Victims of Terrorism Tax Relief Act of 2001, Pub. L. 107-134,

sec. 112(d)(1)(B), 115 Stat. 2435.

3 The returns have not been included in the record. 

Details of the returns are set forth in a document prepared by

respondent’s Appeals officer in response to petitioners’

administrative claim for interest abatement. The parties

stipulated the truth of the factual portions of this document.

OPINION OF THE SPECIAL TRIAL JUDGE

CARLUZZO, Special Trial Judge: On February 28, 2001,

respondent issued a notice of final determination denying in

large part petitioners’ request to abate interest on their

Federal income tax liabilities for 1986 through 1989, inclusive,

and 1991 (the underlying years). In response to that notice,

petitioners timely petitioned this Court to review respondent’s

denial. Our jurisdiction is established by section 6404(h).2

The issue for decision is whether respondent’s failure to abate

interest on petitioners’ Federal income tax liabilities for the

underlying years is an abuse of discretion. 

Background

Petitioners resided in Barrow, Alaska, at the time the

petition was filed. The facts in this case, all of which have

been stipulated, are summarized below. 

Petitioners are husband and wife. They filed timely joint 

Federal income tax returns for 1987, 1988, and 1989, but untimely

returns for 1986 and 1991.3
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For convenience, only some of the details of the assessment

process for the underlying years are set forth in the body of

this opinion; additional details are contained in the Appendix.

By letter dated September 12, 1988, respondent notified

petitioners that their 1986 return was under examination. That

return was selected for examination because of deductions claimed

for the donation of whale meat and whaling expenses. The initial

interview with the petitioners took place on October 20, 1988. 

On or around November 1, 1988, the examination was extended to

include petitioners’ 1987 return, on which similar deductions

were claimed. An examination report proposing to disallow the

above-referenced deductions (presumably for both years) was

mailed to petitioners on February 8, 1989. Petitioners’ protest

was received on July 3, 1989, and an Appeals officer was assigned

2 weeks later. On August 1, 1989, the Appeals officer scheduled

a conference with petitioners’ representative. During Appeals

consideration, much correspondence was exchanged, and several

conferences took place. On June 14, 1991, respondent’s Appeals

Office issued a notice of deficiency to petitioners in which

deficiencies in their 1986 and 1987 income taxes were determined. 

Petitioners timely petitioned this Court in response to that

notice on September 16, 1991 (docket No. 20784-91). That

docketed case was set for trial but was continued several times. 

Ultimately, a stipulated decision was entered on February 29,
- 4 -

4 Docket No. 20784-91, filed Sept. 16, 1991, involving 1986

and 1987; docket No. 23983-92, filed Oct. 27, 1992, involving

1988 and 1989; and docket No. 13503-94, filed July 28, 1994,

involving 1991.

2000, and the deficiencies, an addition to tax, and interest were

assessed on May 29, 2000. 

The examination, Appeals consideration, and litigation

phases for the years 1988, 1989, and 1991 progressed in a manner

similar to that for the years 1986 and 1987. For each of these

later years, deductions similar to the those claimed and

disallowed for 1986 and 1987 were also claimed and disallowed. 

However, by the time the examination of 1991 was completed,

petitioners had decided to forgo Appeals consideration and

proceed with a test case before this Court. 

As of July 28, 1994, petitioners had three cases docketed in

this Court (the docketed cases).4 The docketed cases were

consolidated with other cases involving similarly situated

taxpayers. At petitioners’ request, the docketed cases were held

in suspense to allow for the enactment of proposed Federal

legislation that specifically addressed the types of deductions

in dispute in those cases. Although the proposed legislation was

never enacted, petitioners and respondent agreed to a settlement

in each of the docketed cases, the terms of which are consistent

with the relief contemplated by the proposed legislation.
- 5 -

On May 29, 2000, consistent with the stipulated decision

document entered in each of the docketed cases, deficiencies,

additions to tax, and interest in the following amounts were

assessed: 

Year Deficiency Sec. 6651(a) Interest

1986 $ 7,253.00 $147.80 $16,578.00

1987 23,488.00 — 45,545.88

1988 14,044.00 — 22,934.40

1989 5,753.00 — 7,776.27

1991 3,001.12 718.57 3,382.33

On June 27, 2000, respondent received from petitioners a

separate Form 843, Claim for Refund and Request for Abatement,

for each of the underlying years (the abatement claims). Block 5

of the abatement claims is designated “Explanation and additional

claims.” Instructions following the designation direct the

taxpayer to “Explain why * * * this claim should be allowed, and

show computation of tax refund or abatement of interest, penalty,

or addition to tax.” In the space below these instructions on

each of the abatement claims, petitioners inserted the following:

Our 1986 [1987, 1988, 1989, or 1991, as appropriate]

return was audited, brought to the Appeals Office, and

in Tax Court. We have a good faith belief that delays

occurred in preforming [sic] ministerial acts by an

officer or employee of the Internal Revenue Service

during that period * * *. The occurance [sic] of such

delays requires the abatement of the assessment of

interest for those particular periods. Furthermore,

throughout much of this period legislation was pending
- 6 -

which would have substantially affected the treatment

of specific deductions. Accordingly, the Service

postponed consideration of these matters. Further, a

death in the family of our legal counsel resulted in an

additional delay in consideration of our case. In

light of the ministerial delays, and as well as our

reliance on the actions of Congress, the failure to

abate interest in our circumstances would constitute

grossly unfair treatment and impose on us an undue

hardship.

 

On the abatement claims, petitioners requested abatement of

interest as follows:

Year Period Approximate Amount

1986 02/02/1989 — 10/1999 $13,300

1987 02/02/1989 — 10/1999 25,000

1988 12/16/1991 — 10/1999 16,700

1989 06/10/1991 — 10/1999 10,000

1991 09/13/1993 — 10/1999 2,500 

By letter dated January 24, 2001, respondent notified

petitioner that for 1986 and 1987, $295.43 of interest that

accrued from June 8 to July 3, 1989, would be abated, but

otherwise denied each of petitioners’ requests for abatement of

interest. The reason for the partial allowance has not been

provided. By letter dated February 23, 2001, petitioners

requested that respondent’s Appeals Office reconsider the portion

of the abatement claims that had been denied. On February 28,

2001, respondent issued a notice of final determination in which

respondent refused, with the exception previously noted, to abate
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5 Sec. 6404(e) was amended by the Taxpayer Bill of Rights

2, Pub. L. 104-168, sec. 301, 110 Stat. 1457 (1996), to permit

the Commissioner to abate interest with respect to an

“unreasonable” error or delay resulting from “managerial” or

ministerial acts. The amendment is effective for interest

accruing with respect to deficiencies or payments for tax years

beginning after July 30, 1996, and is therefore inapplicable

here.

interest on petitioners’ Federal income tax liabilities for the 

underlying years.

Discussion

In general, interest on a Federal income tax liability

begins to accrue on the due date of the return and continues to

accrue, compounding daily, until payment is made. Secs. 6601(a),

6622.

The Commissioner has the authority to abate the assessment

of interest on a deficiency or payment of income tax if the

accrual of such interest is attributable to an error or delay by

an official or employee of the Internal Revenue Service in

performing a ministerial act. Sec. 6404(e)(1).5 A ministerial

act means a procedural or mechanical act that does not involve

the exercise of judgment. Lee v. Commissioner, 113 T.C. 145,

149-150 (1999); sec. 301.6404-2T, Temporary Proced. & Admin.

Regs., 52 Fed. Reg. 30163 (Aug. 13, 1987). A prerequisite to the

relief contemplated by section 6404(e) is the “erroneous or

dilatory performance of a ministerial act” by the Commissioner’s
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employee that results in the accrual of interest the taxpayer

seeks to have abated.

In the abatement claims, petitioners state that they have a

good faith belief that delays occurred in preforming ministerial

acts, but they have failed to identify a single instance of

respondent’s dilatory performance of a ministerial act, and

respondent has not admitted to any. Instead, petitioners offered

the following in their opening brief:

While petitioners believed, and still believe, that a

deduction was probably claimable under existing law,

attempts were made to clarify the situation by

requesting retroactive legislation in Congress. There

was substantial interest in this legislation which made

it through numerous committee layers at various times. 

However, the legislation failed to pass prior to this

matter being finally set for trial. After careful

reconsideration of the matter, the Respondent agreed

that some charitable deductions were proper and the

underlying tax liability was settled. However, due to

the delay in waiting for legislation, a delay caused by

an illness and death of a close family member of

Petitioners’ counsel, and other factors as noted in the

stipulated agreed facts, substantial interest was

imposed.

The above-quoted passage, as well as the statements

contained in the abatement claims, greatly undermines

petitioners’ claim to section 6404(e) relief. We have reviewed

the examination history (including Appeals consideration and

litigation phases) of petitioners’ Federal income tax returns for

the underlying years as set forth in the Appeals officer’s

chronology of events and, with the exception of the duration of
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the docketed cases, find nothing out of the ordinary in either

the sequence of events or the passage of time between events. 

Moreover, petitioners acknowledge, as evidenced by the abovequoted passages, that the length of time that the docketed cases

were pending is not attributable to the erroneous or dilatory

performance of a ministerial act by respondent’s employee. See

Lee v. Commissioner, supra.

Resolution of the docketed cases was obviously delayed to

allow for the enactment of the proposed legislation, and the

delay resulted in the imposition of interest. We are not

unsympathetic to petitioners’ situation and the frustration that

must have followed their failed attempts to resolve their tax

disputes through legislation long promised but never enacted. 

Nevertheless, under the circumstances, the additional interest

that accrued during the period of delay of the docketed cases is

not subject to abatement under section 6404(e). Simply put, the

interest that accrued on petitioners’ Federal income tax

liabilities for the underlying years results from petitioners’

failure to pay their Federal income tax liability for each year

when due. Section 6404(e) does not authorize the abatement of

interest upon that ground, and respondent’s refusal to do so is

not an abuse of discretion. See Donovan v. Commissioner, T.C.

Memo. 2000-220; Douponce v. Commissioner, T.C. Memo. 1999-398.
- 10 -

To reflect the foregoing,

Decision will be

entered for respondent.
- 11 -

APPENDIX

EVENT DATE OF EVENT

Docket No. 20784-91 Docket No. 23983-92 Docket No. 13503-94

1986 1987 1988 1989 1991

Filed Federal income tax

returns 09/04/87 Timely Timely Timely 04/14/93

Commenced examination 09/12/88 11/01/88 03/28/91 02/15/91 09/13/93

Initial interview 10/20/88 unknown unknown 03/08/91 unknown

Prepared Report

Transmittal, Reviewed and

Approved for Appeals

02/28/89 02/28/89 unknown unknown unknown

Received petitioners'

Written Protest for an

Appeals Conference

07/03/89 07/03/89 02/11/92 02/11/92 08/01/94

Appeals officer assigned 07/18/89 07/18/89 unknown unknown 09/29/94

Scheduled Appeals

conference 08/01/89 08/01/89 03/04/92 03/04/92 09/30/94

Held Appeals conference 10/31/89 10/31/89 04/28/92 04/28/92 unknown

Respondent mailed

settlement offer 04/10/91 04/10/91 unknown unknown unknown

Petitioners rejected

settlement offer 05/28/91 05/28/91 07/16/92 07/16/92 unknown

Issued Notice of Deficiency 06/14/91 06/14/91 07/30/92 07/30/92 04/29/94

Filed Petition 09/16/91 09/16/91 10/27/92 10/27/92 07/28/94

Petitioner filed status

report with Tax Court on

proposed legislation

06/08/94 06/08/94 06/08/94 06/08/94 06/08/94

Reconsidered settlement 06/13/94 06/13/94 06/13/94 06/13/94 n/a

Respondent filed status

report with Tax Court on

proposed legislation

01/27/95 01/27/95 01/27/95 01/27/95 01/27/95

Respondent filed second

status report with Tax

Court on proposed

legislation

09/26/97 09/26/97 09/26/97 09/26/97 09/26/97

Petitioner filed second

status report with Tax

Court on proposed

legislation

12/02/98 12/02/98 12/02/98 12/02/98 12/02/98

Settlement conference with

Appeals 09/02/99 09/02/99 09/02/99 09/02/99 09/02/99

Stipulated decision entered

by Tax Court 02/29/00 02/29/00 02/29/00 02/29/00 02/29/00

Assessment of tax,

penalties, and interest 05/29/00 05/29/00 05/29/00 05/29/00 05/29/00