T.C. Memo. 2003-190

UNITED STATES TAX COURT

DANNY AND RUTH KOSBAR, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 5371-02. Filed July 1, 2003.

Danny Kosbar and Ruth Kosbar, pro sese.

Bryan E. Sladek, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

LARO, Judge: Petitioners petitioned the Court under section

6404(h) to review respondent’s determination not to abate

interest for 1990 and 1991. Following respondent’s concession

that respondent will abate interest for the 3-day period from

June 20 through 22, 2001, we determine whether respondent abused

his discretion under section 6404 by not abating more of the
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interest. We hold he did not. Unless otherwise indicated,

section references are to the applicable versions of the Internal

Revenue Code. Rule references are to the Tax Court Rules of

Practice and Procedure.

FINDINGS OF FACT

Some facts were stipulated. We incorporate herein by this

reference the parties’ stipulation of facts and the exhibits

submitted therewith. We find the stipulated facts accordingly. 

Petitioners are husband and wife. They resided in Hastings,

Michigan, when their petition was filed with the Court.

Petitioners filed timely 1990 and 1991 joint Federal income

tax returns and paid the reported taxes. Respondent audited

those returns in 1993 and disallowed certain claimed business

expenses. Respondent’s disallowance of these expenses increased

petitioners’ tax liability for 1990 and 1991. Respondent also

determined during the audit that petitioners were liable for 1990

and 1991 accuracy-related penalties under section 6662(a).

On September 17, 1993, petitioners agreed to the assessment

of the amount of taxes and penalties determined by respondent. 

Subsequently, on several occasions, petitioners offered to 

respondent a compromise of the amount of those assessed amounts. 

Respondent rejected each of these offers.

On December 28, 2000, petitioners filed with respondent

Forms 843, Claim for Refund and Request for Abatement, for 1990
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1 Sec. 6404(e) was amended by sec. 301(a)(1) and (2) of the

Taxpayer Bill of Rights 2, Pub. L. 104-168, 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. That amendment does not apply here in that it

is effective for interest accruing with respect to deficiencies

for taxable years beginning after July 30, 1996. Id.

and 1991, requesting that unpaid interest and penalties be

abated. On November 1, 2001, respondent mailed to petitioners

respondent’s determination denying their claims as to the

abatement of interest. 

OPINION

Pursuant to section 6404(e)(1), the Commissioner may abate

the assessment of interest on: (1) Any deficiency attributable

to any error or delay by an officer or employee of the Internal

Revenue Service in performing a ministerial act, or (2) any

payment of any tax described in section 6212(a) to the extent

that any error or delay in payment is attributable to the

officer’s or employee’s being erroneous or dilatory in performing

a ministerial act.1 The temporary regulations interpreting

section 6404(e) define a “ministerial act” as “a procedural or

mechanical act that does not involve the exercise of judgment or

discretion, and that occurs during the processing of a taxpayer’s

case after all prerequisites to the act, such as conferences and

review by supervisors, have taken place.” Sec. 301.6404-

2T(b)(1), Temporary Proced. & Admin. Regs., 52 Fed. Reg. 30163
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2 The final regulations under sec. 6404, which were issued

on Dec. 18, 1998, do not apply here in that they generally apply

to interest accruing on deficiencies or payments of tax described

in sec. 6212(a) for taxable years beginning after July 30, 1996. 

Sec. 301.6404-2(d)(1), Proced. & Admin. Regs.

(Aug. 13, 1987).2 We review for abuse of discretion respondent’s

determination denying an abatement of interest. See sec.

6404(i); Lee v. Commissioner, 113 T.C. 145, 149 (1999).

We find no abuse of discretion here. As we understand

petitioners’ sole argument as to respondent’s refusal to abate

interest, they are not liable for any of the disputed interest

because, they state, they are not liable for the taxes and

penalties upon which the interest accrues. We have no

jurisdiction in this case to decide that issue as framed by

petitioners. We acquire our jurisdiction over this case from

section 6404(h), and that section does not authorize us to decide

in this case whether taxes or penalties assessed by the

respondent are proper. Sec. 6404(b); Krugman v. Commissioner,

112 T.C. 230, 237 (1999); Woodral v. Commissioner, 112 T.C. 19,

21 nn. 4&6 (1999); cf. Estate of Wenner v. Commissioner, 116 T.C.

284, 288 n.2 (2001). Given that petitioners have not established

that respondent abused his discretion as to his determination of

the disputed interest, we sustain that determination.
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To reflect respondent’s concession,

Decision will be entered

under Rule 155.