T.C. Memo. 2005-87

UNITED STATES TAX COURT

CYNTHIA A. BELL, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 14945-04. Filed April 14, 2005. 

Cynthia A. Bell, pro se.

Gerard Mackey, for respondent.

MEMORANDUM OPINION

WHALEN, Judge: This is an action for review of the

Commissioner’s failure to abate interest under section

6404(e). All section references are to the Internal

Revenue Code, as amended. The Commissioner mailed to

petitioner a notice of final determination not to abate

interest under section 6404, relating to interest that
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accrued with respect to petitioner’s taxable years 1998

and 1999. Petitioner filed an imperfect petition and an

amended petition for review of the Commissioner’s failure

to abate interest. The case is presently before the

Court to decide respondent’s motion for summary judgment. 

Petitioner resided in New York, New York, at the time her

petition was filed. 

Background

As we read her amended petition, petitioner complains

that, from November 25, 2002, in the case of her 1998

return, and from November 11, 2002, in the case of her

1999 return, she “was never notified by the IRS” of any

discrepancies with respect to her returns. The amended

petition states: “No correspondence, nor any other effort

was made to contact me about this matter [and] I had firmly

believed that all had been settled and resolved in

reference to my IRS accounts.” She complains that, in

September 2003, she “was devastated” to learn “that my

brokerage account had incurred back-up withholding and

that a New York City school tax credit of $63.00 had been

withheld due to unpaid interest.” 

Petitioner asserts that the failure to contact her

during this period of less than 10 months caused an

unreasonable delay in her payment of the balances owed for
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taxable years 1998 and 1999. According to petitioner, this

delay was attributable to employees of the Internal Revenue

Service (IRS) being erroneous or dilatory in performing a

ministerial or managerial act. Petitioner asserts that,

pursuant to section 6404(e), she is entitled to the amount 

she paid as interest, $2,229.58. The record does not

reveal how this amount was computed.

The amended petition refers to “the printed status

history of my IRS account for the years in question”. 

Attached to the amended petition are two computer printouts

marked “1998–Status History” and “1999-Status History”. 

These documents are reproduced below:

 1998 Status History

IMFOLS ***-**-  30199812P01 STATUS HISTORY NM CTRL: BELL

 UP-CYC:32

STATUS STATUS COPYS FLC AO STATUS STATUS EXTENSION SELECT

CODE DATE CYCLE FORM-SCORE IND AMOUNT DATE CODE

 04 6/07/99 199921 00 8/15/99

 02 5/17/00 200021 3-660 00 00 00 00

 03 6/5/00 200021 0-000 65 00 07 38

 06 9/6/01 200137 0-000 00 00 00 00

 21 7/8/02 200226 22 $5,038.26

 58 10/7/02 200239 22 5,038.26

 48 10/14/02 200240 22 .00

 21 10/21/02 200241 22 1,847.97

 22 11/25/02 200246 22 1,847.97

 12 04/19/04 200414 22 .00 
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1999 Status History

IMFOLS ** *-**-**** 3019912P01 STATUS HISTORY NM CTRL: BELL

 UP-CYC:32

STATUS STATUS COPYS FLC AO STATUS STATUS EXTENSION SELECT

CODE DATE CYCLE FORM-SCORE IND AMOUNT DATE CODE

 04 6/12/99 200022 00 8/15/00

 02 5/17/01 200121 3-660 00 00 00 00

 03 6/4/00 200121 0-000 65 00 07 50

 06 9/6/01 200137 0-000 00 00 00 00

 21 6/3/02 200221 22 $884.66

 21 7/1/02 200225 22 310.28

 58 10/7/02 200239 22 310.28

 22 11/11/02 200244 22 310.28

 12 4/19/04 200414 22 .00 

It appears that petitioner relies on those documents to

establish the starting dates of the periods that she “was

never notified by the IRS”, November 25, 2002, in the case

of tax year 1998, and November 11, 2002, in the case of

tax year 1999. 

The affidavit of respondent’s trial attorney filed 

in support of respondent’s motion for summary judgment

includes, as exhibits, certified transcripts of

petitioner’s 1998 and 1999 taxable years. Those

transcripts show the assessments, abatements, credits,

and refunds relating to each of petitioner’s taxable years

1998 and 1999. The transcript for each year is summarized

below:
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 Transcript

1998 amounts

4/15/99 Original due date of return

8/15/99 Due date of return, after 

 extension

4/17/02 Return filed, 976 days late

4/24/02 Payment, 1,105 days late ($8,273.00)

7/8/02 Assessment

 Tax shown on return 7,914.00 

 Late filing penalty, addition

 under sec. 6654(a)(1)

1,780.65 

 Failure to pay tax penalty,

 addition under sec. 

 6654(a)(2)

 989.25 

 Interest 2,627.36 

7/8/02 Reverse addition under sec. 

 6654(a)(1)

(1,780.65)

10/21/02 Reverse addition under sec. 

 6654(a)(2)

(989.25)

10/21/02 Abate related interest (420.39)

10/21/03 Subsequent payment (63.00)

1,784.97 

3/29/04 Subsequent payment (1,914.16)

4/19/04 Assess additional interest 129.19

 Balance 0.00 

7/8/02 Stat. notice of balance due

10/7/02 Stat. notice of intent to levy 

10/21/02 Stat. notice of balance due
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 Transcript

1999 amounts

4/15/00 Original due date of return

8/15/00 Due date of return, after 

 extension

4/17/02 Return filed, 732 days late

4/17/02 Withholding ($81.00)

4/17/02 Payment, 732 days late (1,868.00)

6/3/02 Assessment

 Tax shown on return 1,864.00 

 Late filing penalty, addition

 under sec. 6654(a)(1)

401.17 

 Failure to pay tax penalty,

 addition under sec. 

 6654(a)(2)

115.89 

 Estimated tax penalty, addition

 under sec. 6654

85.00 

 Interest 367.60 

6/3/02 Reverse addition under 

 sec. 6654(a)(1)

(401.17)

7/1/02 Reverse addition under 

 sec. 6654(a)(2)

(115.89)

7/1//02 Abated related interest (57.32)

2/11/02 Apply overpayment of tax from tax 

 year 2000

 (39.25)

271.03 

3/29/04 Subsequent payment (294.56)

4/19/04 Assess additional interest 23.53

 Balance 0.00 

 6/3/02 Stat. notice of balance due

7/1/02 Stat. notice of balance due

10/7/02 Stat. notice of intent to levy 
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As shown above, petitioner filed her 1998 return on

April 17, 2002, approximately 32 months after it was due. 

The return reported tax in the amount of $7,914. On

April 24, 2002, more than 36 months after payment of the

tax was due, petitioner paid $8,273, or $359 more than the

tax shown on the return. The record does not explain the

nature of this additional amount.

 The tax reported on petitioner’s return for 1998 was

due and unpaid from April 15, 1999, until April 24, 2002. 

By July 8, 2002, when respondent assessed the tax reported

on petitioner’s delinquent 1998 return, interest of

$2,206.97 had accrued on the tax reported on the return

(i.e., $2,627.36, total interest assessed, less $420.39,

interest related to the addition to tax under section

6654(a)(2) that was later reversed). Petitioner paid $359

of that amount (i.e., $8,273, total payment, less $7,914,

tax shown on the return) on April 24, 2002, when she filed

her delinquent return and $63 was offset by a credit on

October 21, 2003. The balance, $1,784.97, continued to

accrue interest from July 8, 2002, to March 29, 2004, when

petitioner paid $1,914.16, the balance of $1,784.97, plus

additional assessed interest of $129.19.

In passing, we note that the transcript of

petitioner’s account for 1998 shows that additions to tax
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under section 6654(a)(1) in the amount of $1,780.65 and

under section 6654(a)(2) in the amount of $989.25 were

assessed on July 8, 2002, and were reversed on July 8,

2002, and October 21, 2002, respectively, along with the

interest related thereto in the amount of $420.39, and 

that a credit of $63 was applied to petitioner’s account

on October 21, 2003. 

The certified transcript for tax year 1998 also shows

that on July 8, 2002, and on October 21, 2002, statutory

notices of balance due were issued to petitioner. The

balance of petitioner’s account on July 8, 2002, was

$5,038.26 (i.e., - $8,273 + $7,914 + $1,780.65 + $989.25 +

$2,627.36). The balance of petitioner’s account on

October 21, 2002, was $1,847.97 (i.e., - $8,273 + $7,914 +

$1,780.65 + $989.25 + $2,627.36 - $1,780.65 - $989.25 -

$420.39).

In the case of petitioner’s 1999 return, as shown

above, petitioner filed her return on April 17, 2002,

approximately 20 months after the due date. The return

showed tax of $1,864, and claimed a credit for withholding

of $81, for a balance due of $1,783. Petitioner paid

$1,868 with the return. Petitioner made this payment more

than 24 months after the payment of her 1999 tax was due

(i.e., April 15, 2000). The amount of this payment,

$1,868, is $85 more than the balance shown on the return. 
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The record does not explain the nature of this additional

payment.

The tax reported on petitioner’s return for 1999 was

due and unpaid from April 15, 2000, until April 17, 2002. 

By June 3, 2002, when respondent assessed the tax reported

on petitioner’s delinquent return for 1999, interest of

$310.28 had accrued on the tax (i.e., $367.60, total

interest assessed, less $57.32, interest related to the

addition to tax under section 6654(a)(2) that was later

reversed). That amount was partially satisfied by an

overpayment of tax from petitioner’s 2000 tax return in

the amount of $39.25. The balance, $271.03, continued to

accrue interest until March 29, 2004, when petitioner paid

$294.56, the balance of $271.03, plus additional assessed

interest of $23.53.

In passing, we note that the transcript of

petitioner’s account for 1999 shows that additions to tax

under section 6654(a)(1) in the amount of $401.17 and under

section 6654(a)(2) in the amount of $115.89 were assessed

on June 3, 2002, and were reversed on June 3, 2002, and

July 1, 2002, respectively, along with the interest related

thereto in the amount of $57.32.
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As in the case of petitioner’s 1998 return, the

certified transcript for tax year 1999 also shows that

statutory notices of balance due were issued to petitioner. 

One notice was issued on June 3, 2002, when the balance of

petitioner’s account was $884.66 (i.e., - $81 - $1,868 +

$1,864 + $401.17 + $115.89 + $85 + $367.60). Another

notice was issued to petitioner on July 1, 2002, when the

balance of petitioner’s account was $310.28 (i.e., - $81 

- $1,868 + $1,864 + $401.17 + $115.89 + $85 + $367.60 -

$401.17 - $115.89 - $57.32).

The total interest that petitioner paid for 1998 and

1999 is $2,669.97 computed as follows: 

 7/8/02 Assess interest for 1998 $2,627.36

10/21/02 Abate interest related to additions -420.39

 to tax for 1998

 3/29/04 Assess additional interest for 1998 129.19

 6/3/02 Assess interest for 1999 367.60

 7/1/02 Abate interest related to additions -57.32 

 to tax for 1999 

 3/29/04 Assess additional interest for 1999 23.53

 2,669.97

 

 

Discussion

The purpose of summary judgment is to expedite

litigation and to avoid unnecessary and expensive trials. 

See, e.g., Keene v. Commissioner, 121 T.C. 8, 14 (2003);

Fla. Peach Corp. v. Commissioner, 90 T.C. 678, 681 (1988). 

Generally, we grant summary judgment if the pleadings,

answers to interrogatories, depositions, admissions, and
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any other acceptable materials show that there is no

genuine issue of any material fact and a decision may be

rendered as a matter of law. Rule 121(b), Tax Court Rules

of Practice and Procedure. See Sundstrand Corp. v.

Commissioner, 98 T.C. 518, 520 (1992), affd. 17 F.3d 965

(7th Cir. 1994); Zaentz v. Commissioner, 90 T.C. 753, 754

(1988). 

The moving party, respondent in this case, bears the

burden of proving that there is no genuine issue of

material fact. Dahlstrom v. Commissioner, 85 T.C. 812, 821

(1985); Jacklin v. Commissioner, 79 T.C. 340, 344 (1982). 

Factual inferences will be made in a manner most favorable

to the party opposing summary judgment. 

For the reasons set forth below, we conclude that

there are no genuine issues of any material fact and that

respondent is entitled to prevail as a matter of law. 

Accordingly, we shall grant respondent’s motion.

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

part or all of an assessment of interest on any deficiency

or payment of income, gift, estate, and certain excise tax

to the extent that any error or delay in payment is

attributable to erroneous or dilatory performance of a

ministerial or managerial act by an officer or employee of

the Commissioner if (a) the Commissioner contacted the
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taxpayer in writing about the deficiency or payment, and

(b) the taxpayer did not contribute significantly to the

error or delay. Congress intended for the Commissioner to

abate interest under section 6404(e) "where failure to

abate interest would be widely perceived as grossly unfair"

and did not intend abatement to "be used routinely to avoid

payment of interest". H. Rept. 99-426, at 844 (1985),

1986-3 C.B. (Vol. 2) 1, 844; S. Rept. 99-313, at 208

(1986), 1986-3 C.B. (Vol. 3) 1, 208.

In this case, as discussed above, petitioner seeks the

abatement of interest that was assessed with respect to

petitioner’s 1998 and 1999 taxes. Petitioner’s amended

petition asks for the abatement of interest in the amount

of $2,229.58. Petitioner’s response to respondent’s motion

for summary judgment states that “petitioner is now

requesting that * * * $2,669.97, be fully abated.” 

According to petitioner’s response, petitioner was not

previously aware of “the entire amount of interest that had

been paid over the years.” In effect, petitioner is asking

for abatement of all of the interest that accrued with

respect to the delay of approximately 60 months in the

payment of her 1998 tax liability, and all of the interest

that accrued with respect to the delay of approximately 48

months in the payment of her 1999 tax liability.
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Petitioner claims to be entitled to such relief under

section 6404(e)(1)(B) because of the failure of employees

of the IRS to contact her during a period of less than 10

months, from November 2002 until September 2003, when she

learned that backup withholding had been imposed on her

brokerage account and a school tax credit of $63 had been

withheld. Petitioner alleges that during this period she

was not notified by the IRS of “any discrepancies * * *

for my 1998 return” and she received “no manner of formal

contact” from the IRS with respect to her 1999 return. 

Respondent’s motion for summary judgment argues that

“a significant aspect of the delay in payment, and the

resulting accrual of interest, is directly attributable to

petitioner * * * [who] did not have sufficient withholding

or estimated payments for her 1998 and 1999 taxes to be

paid in full on their respective due dates.” We agree with

respondent. 

In deciding respondent’s motion we have accepted, as

true, all of the allegations made in petitioner’s amended

petition and in her response to respondent’s motion for

summary judgment, and we have drawn all factual inferences

in petitioner’s favor.

We find that petitioner has neither alleged nor shown

any justification for the application of section 6404(e). 
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The undisputed facts are that petitioner filed delinquent

returns for 1998 and 1999, and she paid the taxes reported

on those returns more than 36 months past the payment due

date in the case of the 1998 return, and more than 24

months past the payment due date in the case of the 1999

return. Respondent assessed the tax shown on each

delinquent return, together with appropriate interest,

and notified petitioner of her outstanding liability. 

Petitioner did not pay her outstanding liabilities for 1998

and 1999 until approximately two years after she filed her

delinquent returns. 

Furthermore, it is undisputed that respondent sent to

petitioner statutory notices of balance due and a notice of

intent to levy with respect to each of the years in issue. 

The certified transcript of petitioner’s account for 1998

shows that respondent issued statutory notices of balance

due on July 8 and October 21, 2002, when the balance of

petitioner’s account was $5,038.26 and $1,847.97,

respectively. These balances are shown on the 1998 status

history of petitioner’s account, which is attached to

petitioner’s amended petition. The certified transcript of

petitioner’s account for 1999 shows that respondent issued

statutory notices of balance due on June 3 and July 1,

2002, when the balance of petitioner’s account was $884.66
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and $310.28, respectively. These balances are shown on the

1999 status history of petitioner’s account, which is

attached to petitioner’s amended petition. 

There is no basis on which to find that any

unreasonable error or delay in petitioner’s payment of

interest for 1998 and 1999 is attributable to an officer or

employee of the IRS’s being erroneous or dilatory in

performing a ministerial or managerial act. See sec.

6404(e)(1)(B). Petitioner’s allegation that respondent

failed to notify her or communicate during the 10-month

period November 2002 through September 2003 fails to

explain how that contributed to the delay in petitioner’s

payment. We can see no basis for petitioner’s assertion

that respondent was erroneous or dilatory in performing a

ministerial or managerial act. This is especially true in

light of the notices of balance due that respondent issued

for both years shortly before the 10-month period about

which petitioner complains. 

Petitioner contends that respondent committed “an

overt abuse of discretion” “by seizing dividends and

placing back-up withholding” on petitioner’s brokerage

account. It is unclear to the Court how respondent’s

efforts to collect petitioner’s taxes contributed to the

delay in petitioner’s payment. Indeed, it appears that the
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opposite is true. Petitioner was prompted to pay her

outstanding balance for each year when she learned that her

brokerage account was subject to backup withholding and a

school tax credit of $63 had been withheld.

Moreover, we find that the delay in payment of

petitioner’s taxes and interest for 1998 and 1999 is

attributable entirely to petitioner. Certainly, petitioner

bears full responsibility for filing her returns for those

years and paying the taxes shown thereon on or about

April 17, 2002, well past the filing and payment deadlines. 

Petitioner also bears full responsibility for waiting until

March 29, 2004, to pay the outstanding liabilities owed for

both years. We are not persuaded to hold otherwise based

upon her vague assertion that she thought “that all had

been resolved”. To do so would be to hold that petitioner

should be relieved of interest because of her confusion or

lack of full understanding of the balances due with respect

to her taxes for 1998 and 1999. Accordingly, we find no

basis on which to abate any interest assessed with respect

to petitioner’s 1998 and 1999 taxes. 

On the basis of the above,

An order and decision will

be entered for respondent.