115 T.C. No. 26

UNITED STATES TAX COURT

SCOTT WILLIAM KATZ, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 16718-99L. Filed October 13, 2000.

P received a notice of deficiency for his 1990 tax

year. After P petitioned this Court to redetermine

that deficiency determination, the Court entered a

stipulated decision providing for a tax deficiency,

additions to tax, and statutory interest. R

subsequently filed a lien, and P, in turn, requested an

Appeals hearing from R’s Appeals Office pursuant to

sec. 6320(b), I.R.C. P refused to appear at the

Appeals hearing on the grounds that the location of the

Appeals hearing was inconvenient to P and his

witnesses. After an Appeals officer discussed the

collection matter with P via telephone, the Appeals

officer issued to P a notice of determination under

sec. 6330, I.R.C. P subsequently petitioned this Court

to review the Appeals officer’s determination under

sec. 6330, I.R.C. R now moves for partial summary

judgment with regard to the tax deficiency, additions

to tax, and interest that are the subject of R’s

collection activities.
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1 Unless otherwise indicated, all section references are to

the Internal Revenue Code as amended, and all Rule references are

to the Tax Court Rules of Practice and Procedure.

Held: P received an adequate opportunity for an

Appeals hearing pursuant to sec. 6320(b), I.R.C. In

any event, the communications between the Appeals

officer and P constituted an Appeals hearing under sec.

6320(b), I.R.C.

Held, further, P’s challenge to the merits of R’s

assessment of the tax deficiency and additions to tax

fails to state a claim on which relief can be granted.

Held, further, because the Court has jurisdiction

under sec. 6404(i), I.R.C., over interest abatement

cases, the Court has jurisdiction to review the Appeals

officer’s determination with regard to the interest

that is the subject of R’s collection activities. 

However, the Appeals officer did not abuse his

discretion in making the determination.

Scott W. Katz, pro se.

Kenneth A. Hochman and John T. Lortie, for respondent.

OPINION

VASQUEZ, Judge: Petitioner filed a petition in response to

respondent’s Notice of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 (notice of

determination).1 In his petition, petitioner alleges that the

Internal Revenue Service Office of Appeals (Appeals Office)

failed to hold a meaningful hearing as required by section

6320(b) (Appeals hearing). Petitioner further challenges the

merits of a tax deficiency and additions to tax previously
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2 For purposes of respondent’s motion, petitioner does not

dispute various factual allegations that are part of the record.

3 The summarized facts, however, are not findings of fact

for the instant case. See Rule 1(a); Fed. R. Civ. P. 52(a).

redetermined by the Court in a decision entered for his 1990 tax

year, and interest assessed thereon. Respondent has moved for

partial summary judgment on the grounds that petitioner has been

afforded the opportunity for an Appeals hearing, that the tax

deficiency and additions to tax are properly due, and that the

interest has been properly calculated. There are no genuine

issues of material fact to preclude us from deciding this

matter.2 We therefore decide the legal issues before us.

Background

At the time the petition was filed, petitioner resided in

West Palm Beach, Florida. For the sole purpose of deciding the

motion for partial summary judgment, we summarize the relevant

facts.3

On September 19, 1996, respondent issued a notice of

deficiency with regard to petitioner’s 1990 tax year. On October

2, 1996, petitioner filed a petition with this Court seeking a

redetermination of the tax deficiency and additions to tax

determined by respondent in the notice of deficiency (original

tax dispute). On February 6, 1998, petitioner moved the U.S.

Bankruptcy Court for the Southern District of Florida to reopen

his 1990 bankruptcy case to settle the dispute with the
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4 The decision provided: “It is further stipulated that

interest will be assessed as provided by law on the deficiency

and additions to tax due from the petitioner.”

Commissioner regarding his “1990 income tax liability.” On March

10, 1998, the bankruptcy court denied the request, ruling that

petitioner’s “1990 tax liabilities were not discharged in * * *

[the] bankruptcy case.” In re Katz, No. 90-39248-BKC-RAM (Bankr.

S.D. Fla., Mar. 10, 1998). On May 14, 1998, with regard to the

original tax dispute, we entered a decision stipulated by the

parties setting out the amounts of the tax deficiency and

additions to tax and providing for statutory interest.4 See Katz

v. Commissioner, Docket No. 21359-96 (May 14, 1998). The amounts

of the tax deficiency and additions to tax redetermined in the

decision were much lower than the amounts set forth in the notice

of deficiency. Subsequently, respondent assessed the tax

deficiency, additions to tax, and interest. 

On February 23, 1999, respondent filed a Notice of Federal

Tax Lien (lien filing) with regard to the amounts assessed for

the 1990 tax year in the county recorder’s office for Palm Beach

County, Florida. On February 27, 1999, respondent transmitted to

petitioner a “Notice of Federal Tax Lien Filing and Your Right to

a Hearing under IRC 6320”. On or about March 31, 1999, pursuant

to section 6320(b), petitioner requested an Appeals hearing from

respondent’s Appeals Office. In his request, petitioner

contested the entire amount listed in the lien filing. 
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5 The Appeals officer was based in Miami, Florida.

Petitioner contended that “any tax money allegedly owed for 1990”

was discharged pursuant to his bankruptcy action and that (in any

event) interest should not have accrued during the bankruptcy

proceeding.

On May 24, 1999, an Appeals officer5 assigned to the South

Florida region mailed petitioner a letter scheduling petitioner’s

requested Appeals hearing for June 8, 1999, at an Appeals Office

in Sunrise, Florida. The Appeals officer stated in the letter: 

“If you are unable to attend, let me know within the next 5 days,

and I will arrange another time. Please try to keep this

appointment, because conferences are not held in your area often,

and special arrangements must be made.” The Appeals officer

explained that “an earlier conference may be possible if held in

my office or conducted by telephone.” The Appeals officer

further explained to petitioner the procedures of the Appeals

hearing:

This conference will be informal. You may present

facts, arguments, and legal authority to support your

position. If you plan to introduce new evidence or

information, send it to me at least 10 days before the

conference. Statements of fact should be presented as

affidavits or signed under penalties of perjury.

 

On that same day, independent of the letter drafted by the

Appeals officer, petitioner mailed a letter to the Appeals

officer reasserting his request for an Appeals hearing. In the
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letter, petitioner requested that the Appeals hearing “take place

in West Palm Beach, Florida since all of the witnesses live and

work in West Palm Beach, Florida.”

On June 7, 1999, after receiving the Appeals officer’s

letter dated May 24, 1999, petitioner again transmitted a letter

to the Appeals officer requesting “that any and all hearings be

held in West Palm Beach, Florida.” Petitioner further stated

that “all of my witnesses and people involved * * * [with regard

to] the 1990 [tax year] are in West Palm Beach, Florida. In

short, I will not attend the conference you set up on 6/8/99. 

 * * * Again, please reset the matter for a conference in West

Palm Beach, Florida. I cannot appear with my witnesses almost an

hour away.”

On June 21, 1999, petitioner and the Appeals officer had a

telephone conversation in which they discussed petitioner’s 1990

tax year. During the telephone conversation, the Appeals officer

informed petitioner that Appeals hearings were not available in

West Palm Beach, Florida, but rather were conducted in Sunrise,

Florida. On June 23, 1999, the Appeals officer followed up the

telephone conversation with a letter in which he stated that he

saw “no basis for recommending abatement of the 1990 income tax

liability.” The Appeals officer also informed petitioner that he

could (1) petition the Tax Court to review the lien filing

following the issuance of a notice of determination by the
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6 The Appeals officer suggested to petitioner the following

alternatives for settlement:

1. Full payment of the liability.

2. Enter into an installment agreement.

3. Submit an offer in compromise, [based on] doubt-as- 

 to collectibility.

7 There are no indications in the record that after

speaking with the Appeals officer, petitioner requested an

Appeals hearing to be held at the Appeals Office in Sunrise,

Florida.

Appeals officer or (2) settle with the Internal Revenue Service

(IRS).6 On September 28, 1999, following inaction by petitioner,

the Appeals officer issued a notice of determination deciding

“not to withdraw the Notice of Federal Tax Lien.”7 In the notice

of determination, the Appeals officer explained that petitioner’s

“tax was not dischargeable” pursuant to applicable bankruptcy law

and that petitioner had “signed a stipulation waiving the

restrictions prohibiting assessment and collection of the

deficiency and additions to tax (plus statutory interest) for the

taxable year 1990”. 

Petitioner, thereafter, petitioned this Court to review

respondent’s determination pursuant to section 6330. In the

petition, petitioner contends that (1) he has never received (or

had the opportunity for) an Appeals hearing, (2) the Tax Court

decision with regard to the tax deficiency and additions to tax

should be vacated because of the previous bankruptcy action, and

(3) respondent is not entitled to interest for the period during
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8 In the Internal Revenue Service Restructuring and Reform

Act of 1998, Pub. L. 105-206, sec. 3401, 112 Stat. 685, 746-750,

Congress enacted secs. 6320 (pertaining to liens) and 6330

(pertaining to levies) to provide new protections for taxpayers

with regard to collection matters.

which he was in bankruptcy proceedings.

Discussion

Section 6321 provides that, if any person liable to pay any

tax neglects or refuses to do so after demand, the amount shall

be a lien in favor of the United States upon all property and

rights to property, whether real or personal, belonging to such

person. Pursuant to section 6323, the Commissioner generally is

required to file a Notice of Federal Tax Lien with the

appropriate State office for the lien to be valid against certain

third parties. 

After the Commissioner conducts the lien filing, section

6320(a)(1) requires the Commissioner to provide notice to the

taxpayer of the lien.8 In addition, under section 6320(a)(3)(B)

and (b), the Commissioner must provide the taxpayer with notice

of and an opportunity for an administrative review of the lien

filing; i.e., an Appeals hearing. Section 6320(b)(1) requires

that the Appeals Office conduct the Appeals hearing. Section

6320(c) incorporates section 6330(c) and certain parts of section

6330(d), which describe the procedural rules that apply to the
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9 Sec. 6330(a) and (b) provides taxpayers with notice and

opportunity for an Appeals hearing before a levy is made.

Appeals hearing and the judicial review thereof.9

At the Appeals hearing, the taxpayer may raise certain

matters set forth in section 6330(c)(2), which provides in

pertinent part as follows:

SEC. 6330(c). Matters Considered at Hearing.-–In

the case of any hearing conducted under this section-–

* * * * * * *

(2) Issues at hearing.--

(A) In general.–-The person may raise 

at the hearing any relevant issue relating to

the unpaid tax or the proposed levy,

including–-

(i) appropriate spousal defenses;

(ii) challenges to the

appropriateness of collection

actions; and

(iii) offers of collection

alternatives, which may include the

posting of a bond, the substitution

of other assets, an installment

agreement, or an offer-incompromise.

(B) Underlying liability.–-The person

may also raise at the hearing challenges to

the existence or amount of the underlying tax

liability for any tax period if the person

did not receive any statutory notice of

deficiency for such tax liability or did not

otherwise have an opportunity to dispute such

tax liability.

Pursuant to section 6330(d)(1), within 30 days of the issuance of
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the notice of determination, the taxpayer may appeal that

determination to this Court if we have jurisdiction over the

underlying tax liability. If we do not have jurisdiction over

the underlying tax liability, then the appeal is to be made to a

U.S. District Court. See sec. 6330(d)(1).

Appeals Hearing

Petitioner asserts that the Appeals officer did not afford

petitioner an Appeals hearing as required under section 6320(b). 

Petitioner argues in his objection to respondent’s motion for

partial summary judgment that his request for an Appeals hearing

was never honored, that he has never submitted a “Withdrawal of

Request for Collection Due Process” form to the Appeals officer,

and that “various telephonic conversations and/or letters to the

Petitioner [by the Appeals officer] do not meet the requirements

of Section 6320” for an Appeals hearing. Petitioner therefore

argues that respondent’s motion should be denied. Respondent

disagrees and states that the Appeals officer afforded petitioner

an opportunity to have an “in-person hearing” at the Appeals

Office in Sunrise, Florida, which petitioner declined.

Section 6320(b) provides that if a taxpayer “requests a

hearing under subsection (a)(3)(B), such hearing shall be held by

the Internal Revenue Service Office of Appeals.” Section 6320

does not specify at what location the Appeals hearing needs to

take place or whether it can occur via telephone. Furthermore,
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the legislative history to sections 6320 and 6330 does not

address this issue. See H. Conf. Rept. 105-599, at 263-267

(1998).

Respondent asserts that for petitioner’s geographic

location, Appeals hearings are generally held at the Appeals

Office in Sunrise, Florida. Petitioner does not dispute this

claim. From petitioner’s correspondence with the Appeals

officer, we assume that petitioner’s complaint is that under

section 6320(b) he is entitled to an Appeals hearing in West Palm

Beach, Florida, the location of his alleged witnesses and the

place of his residence.

Because Congress has not specifically addressed the location

for an Appeals hearing, we look to other tax contexts for

guidance. In the examination context, Congress has stated that

the time and place of an examination shall be such time and place

as “may be fixed by the Secretary and as are reasonable under the

circumstances.” Sec. 7605(a). Under section 301.7605-1(d)(2),

Proced. & Admin. Regs., the location of an office examination is

based on the taxpayer's residence:

(d) Place of examination–- * * *.

* * * * * * *

(2) Office examinations–-(i) In general. * * * 

An office examination generally will take place at the

closest Service office within the district encompassing

the taxpayer’s residence * * *. It generally is not

reasonable for the Service to require a taxpayer to

attend an examination at an office within an assigned
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district other than the closest Service office.

(ii) Exception. If the office within the

assigned district closest to an individual taxpayer’s

residence * * * does not have an examination group or

the appropriate personnel to conduct the examination,

it generally is reasonable for the Service to require

the taxpayer to attend an examination at the closest

Service office within the assigned district that has an

examination group or the appropriate personnel.

(iii) Travel Considerations. In scheduling

office examinations, the Service in appropriate

circumstances will take into account the distance a

taxpayer would have to travel.

In section 301.7605-1(e)(1), Proced. & Admin. Regs., the

Secretary further provides:

The Service will consider, on a case-by-case basis,

written requests by taxpayers or their representatives

to change the place that the Service has set for an

examination. In considering these requests, the

Service will take into account the following factors–

(i) The location of the taxpayer’s current

residence;

(ii) The location of the taxpayer’s current

principal place of business;

(iii) The location at which the taxpayer’s books,

records, and source documents are maintained;

(iv) The location at which the Service can

perform the examination most efficiently;

(v) The Service resources available at the

location to which the taxpayer has requested a

transfer; and

(vi) Other factors that indicate that conducting

the examination at a particular location could pose
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10 Sec. 301.7605-1(e)(2), Proced. & Admin. Regs., lists the

circumstances in which the Internal Revenue Service (IRS) will

normally permit transfers.

11 Sec. 6330(b) (which is almost identical to sec. 6320(b))

allows a taxpayer to have an Appeals hearing with regard to a

proposed levy. Because Appeals hearings pursuant to secs.

6320(b) and 6330(b) have the same function and scope, the

framework we apply to an Appeals hearing under sec. 6320(b) also

applies to an Appeals hearing under sec. 6330(b).

undue inconvenience to the taxpayer.[10]

The Treasury regulations in the examination context consider

the distances taxpayers will have to travel to submit information

to the IRS and attempt to provide taxpayers with venues at IRS

offices near their homes. At the same time, the Treasury

regulations recognize the limited resources of the IRS and, under

certain circumstances, provide for alternate examination

locations more favorable to the IRS if the IRS office closest to

the taxpayer’s home lacks the appropriate personnel to conduct

the investigation. We conclude that a similar framework also

applies in the context of an Appeals hearing under section

6320(b).11

From the record, it appears that the Appeals Office closest

to the residence of petitioner is the Appeals Office in Sunrise,

Florida. Petitioner has not alleged that there is an Appeals

Office in West Palm Beach or one closer to his residence.

Petitioner alleged in one of his letters to the Appeals officer

only that he could not “appear with [his] witnesses” when the
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12 In Davis v. Commissioner, 115 T.C. ___, ___ (2000) (slip

op. at 10), we looked at Treasury regulations dealing with the

functions of the Appeals Office. We cited sec. 601.106(c),

Statement of Procedural Rules, which provides:

(c) Nature of proceedings before Appeals. 

Proceedings before the Appeals are informal. Testimony

under oath is not taken, although matters alleged as

facts may be required to be submitted in the form of

affidavits, or declared to be true under the penalties

(continued...)

hearing location was “almost an hour away” from West Palm Beach. 

Petitioner did not, nor does he now, explain why commuting an

hour would constitute an undue burden on petitioner or his

witnesses. On the basis of the record, we cannot find support

for petitioner’s contention.

We also note that in Davis v. Commissioner, 115 T.C. ___

(2000), we recently addressed a taxpayer’s claim that an Appeals

officer failed to afford him an Appeals hearing as envisioned by

Congress in section 6330. The taxpayer in that case argued that

any meaningful hearing required “that he be able to subpoena

witnesses and documents”. Id. at ___ (slip op. at 8). We stated

that the “nature of the administrative Appeals process does not

include the taking of testimony under oath or the compulsory

attendance of witnesses.” Id. at ___ (slip op. at 11). We noted

that hearings “at the Appeals level have historically been

conducted in an informal setting” and that nothing in section

6330 or the legislative history indicated that Congress intended

to alter this format.12 Id. at ___ (slip op. at 10). Pursuant
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12(...continued)

of perjury. * * * 

13 Petitioner, however, could have submitted facts in the

form of affidavits or declarations under penalties of perjury.

to Davis v. Commissioner, supra, applicable Treasury regulations,

and the historical function of the Appeals Office, petitioner did

not have the right to examine witnesses under oath during the

Appeals hearing.13 Davis v. Commissioner, supra, undermines

petitioner’s argument that he was entitled to an Appeals hearing

in West Palm Beach because traveling to Sunrise, Florida, for his

Appeals hearing would impose a burden on his witnesses.

On the basis of the entire record and applicable law, we

conclude that the Appeals officer has complied with the

requirements of section 6320(b) by providing petitioner an

opportunity for an Appeals hearing.

Because of petitioner’s insistence on an Appeals hearing in

West Palm Beach, Florida, the Appeals officer attempted to

accommodate petitioner by offering to discuss his case over the

telephone. From the record, we conclude that petitioner and the

Appeals officer did in fact discuss his case over the telephone

and that the Appeals officer heard and considered petitioner’s

arguments. We thus further conclude that, through the

communications between petitioner and the Appeals officer in the

instant case, petitioner received an Appeals hearing as provided

for in section 6320(b).
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The Court’s Jurisdiction To Review Respondent’s Collection

Activities Is Based on Jurisdiction Over the Underlying Tax

Liability

The Appeals officer made a determination that the lien

should not be removed because the tax deficiency, additions to

tax, and interest were properly due. By way of a timely filed

petition, petitioner has invoked the jurisdiction of this Court

to review the determination with regard to each of those amounts. 

The Court’s jurisdiction to review an Appeals officer’s

determination that relief (to remove a lien) should be denied is

set forth in section 6330(d)(1):

SEC. 6330(d). Proceeding After Hearing.--

(1) Judicial review of determination.–-The person

may, within 30 days of a determination under this

section, appeal such determination–-

(A) to the Tax Court (and the Tax Court

shall have jurisdiction to hear such matter);

or

(B) if the Tax Court does not have

jurisdiction of the underlying tax liability,

to a district court of the United States.

If a court determines that the appeal was to an

incorrect court, a person shall have 30 days after the 

court determination to file such appeal with the

correct court.

Therefore, in order to have jurisdiction over matters listed in a

petition with regard to a notice of determination pursuant to

section 6330, we must decide whether the “underlying tax

liability” is of a type over which this Court normally has

jurisdiction. See Moore v. Commissioner, 114 T.C. 171, 175

(2000).
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14 References to “collection activities” are to the

Commissioner’s attempts to collect unpaid taxes through the

filing of a lien or the making of a levy. 

Although the term “underlying tax liability” is defined in

neither sections 6320 and 6330 nor the legislative history,

Congress’ intent in ensuring due process to taxpayers when the

Commissioner seeks to collect taxes by liens or levies suggests

that the term includes any amounts owed that are the subject of

the Commissioner’s collection activities.14 See H. Conf. Rept.

105-599, supra at 263-267. We, therefore, interpret the term

“underlying tax liability” in section 6330(d)(1) to include any

amounts owed by a taxpayer pursuant to the tax laws. In this

case, the underlying tax liability includes the tax deficiency,

additions to tax, and statutory interest. We, therefore, must

decide whether we have jurisdiction over the tax deficiency,

additions to tax, and interest that are the subject of

respondent’s collection activities, in order to review the

Appeals officer’s determination pursuant to section 6330 (and

petitioner’s contentions) with regard to each of those amounts.

Review of Tax Deficiency and Additions to Tax

We generally have deficiency jurisdiction to redetermine

deficiencies in income taxes and related additions to tax. See

secs. 6211, 6213(a), 6214(a); see also Goza v. Commissioner, 114

T.C. 176, 182 (2000); Moore v. Commissioner, supra at 175. We,

therefore, have jurisdiction to review the Appeals officer’s

determination in this case insofar as it relates to the assessed
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15 Sec. 6330(c)(4), however, does not apply in certain

limited circumstances. See sec. 6330(d)(2).

16 The doctrine of res judicata, which applies to a

stipulated decision, precludes relitigation of the issues

involved in that tax litigation. See Cincinnati Transit Inc. v.

(continued...)

tax deficiency and additions to tax.

Pursuant to section 6330(c)(2)(A), a taxpayer may raise at

the Appeals hearing any relevant issue with regard to the

Commissioner’s collection activities, including spousal defenses

to collection, challenges to the appropriateness of the

Commissioner’s intended collection activities, and possible

alternative means of collection. See Sego v. Commissioner, 114

T.C. 604, 609 (2000); Goza v. Commissioner, supra at 180.

If a taxpayer has been issued a notice of deficiency or had the

opportunity to litigate the underlying tax liability, however,

the taxpayer is precluded from challenging the existence or

amount of the underlying tax liability. See sec. 6330(c)(2)(B);

Sego v. Commissioner, supra at 609-611; Goza v. Commissioner,

supra at 180-181, 183-184. Moreover, the taxpayer is precluded

from relitigating issues raised and considered in any previous

Appeals hearing or in any other administrative or judicial

proceeding in which the taxpayer participated meaningfully. See

sec. 6330(c)(4).15

As to the tax deficiency and additions to tax for 1990,

petitioner’s liability is established by the stipulated decision

entered by this Court.16 The bankruptcy court considered and
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16(...continued)

Commissioner, 55 T.C. 879, 883-884 (1971); Krueger v.

Commissioner, 48 T.C. 824, 829-830 (1967); Hamdan v.

Commissioner, T.C. Memo. 2000-19.

rejected his claim that his “income tax liability” for that year

was discharged in his bankruptcy case. Petitioner does not seek

relief as permitted under section 6330(c)(2)(A). He is thus

precluded from challenging that liability in this proceeding and

has, at the same time, failed to state a cognizable claim. See

Goza v. Commissioner, supra at 183.

Review of Statutory Interest

Petitioner makes an additional contention (separate from the

issues related to the tax deficiency and additions to tax) that

he is not liable for the statutory interest. He in effect argues

that we have jurisdiction to review the Appeals officer’s

determination with regard to the interest that is the subject of

respondent’s collection activities.

In Moore v. Commissioner, supra at 175, we interpreted

section 6330(d)(1)(A) and (B) as not expanding the Court’s

jurisdiction beyond the types of taxes that the Court may

normally consider (such as income, estate, and gift taxes). We

concluded that because we did not have jurisdiction to

redetermine Federal trust fund taxes determined by the

Commissioner under section 6672, we did not have jurisdiction to

review a determination made pursuant to section 6330 with regard

to those taxes. See id.
- 20 -

17 Sec. 7481(c)(2)(A)(ii), however, requires that the

taxpayer have “paid the entire amount of the deficiency plus

interest” for the Tax Court to have overpayment jurisdiction with

regard to the interest.

18 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 the Secretary to abate interest with respect to

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

ministerial acts. This amendment, however, applies to interest

accruing with respect to deficiencies or payments for tax years

beginning after July 30, 1996; therefore, the amendment is

inapplicable to the case at bar. See Woodral v. Commissioner,

112 T.C. 19, 25 n.8 (1999).

Our jurisdiction to redetermine assessments of interest

pursuant to section 6601 is limited. Section 7481(c) provides

that if within 1 year after a decision becomes final, the

taxpayer files a petition to redetermine interest, the Tax Court

has overpayment jurisdiction with regard to the interest.17

Further, section 6404(i) provides the Tax Court with jurisdiction

to review the Commissioner’s refusal to abate interest under

section 6404.

In his request for an Appeals hearing, petitioner contended

that interest should not have accrued during his bankruptcy case. 

Because we view petitioner’s request as a request for an

abatement of interest, we hold that we have jurisdiction to

review the Appeals officer’s determination with regard to the

interest that is the subject of respondent’s collection

activities.

Under preamendment section 6404(e),18 the Commissioner “may

abate the assessment of interest on any payment of tax to the
- 21 -

extent that any error or delay in payment is attributable to an

officer or employee of the IRS being erroneous or dilatory in

performing a ministerial act.” See Lee v. Commissioner, 113 T.C.

145, 148 (1999). A ministerial act, however, does not include “a

decision concerning the proper application of federal tax law (or

other federal or state law)”. Sec. 301.6404-2(b)(2), Proced. &

Admin. Regs. 

Petitioner has not alleged a ministerial error within the

meaning of section 6404(e). Furthermore, the evidence does not

establish that respondent committed a ministerial error requiring

an abatement of interest.

Conclusion

 For the reasons explained above, petitioner’s challenge to

his liability for the tax deficiency and additions to tax fails

to state a cognizable claim for relief. We hold that none of the

other grounds upon which petitioner relies, as stated in his

submissions to the Appeals officer, his petition to this Court,

and his arguments in response to respondent’s motion, constitutes

a basis upon which we can find that the Appeals officer’s

determination was an abuse of discretion. Because respondent’s

motion for partial summary judgment covers all the remaining

issues in the instant case, we treat it as a motion for full

summary judgment, which we now grant.

To the extent not herein discussed, we have considered

petitioner’s other arguments and find them to be without merit.
- 22 -

To reflect the foregoing,

An appropriate order and

decision will be entered for

respondent.