UNITED STATES TAX COURT

T.C. Memo. 2008-56

UNITED STATES TAX COURT

EDWARD H. JONES, III, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 19400-04.

Filed March 6, 2008.

P sought an installment arrangement to pay a

portion of the liability shown on his tax return.

After extensive communications, a 1-year arrangement

was agreed upon, and P paid in full the assessed tax

and interest. P claims interest abatement under sec.

6404, I.R.C. 1986. R moves for summary judgment.

Held: R’s summary judgment motion will be granted

except as to two periods regarding which R failed to

show entitlement to decision as a matter of law.

Edward H. Jones III, pro se.

Lisa M. Oshiro, for respondent.

- 2 MEMORANDUM OPINION

CHABOT, Judge:

This matter is before us on respondent’s

motion under Rule 1211 for summary judgment.

Respondent issued a

notice of determination disallowing petitioner’s claim for

abatement of interest with respect to an underpayment of income

tax for 2000; petitioner timely petitioned this Court under

section 64042 to review this disallowance.3

1

Unless indicated otherwise, all Rule references are to the

Tax Court Rules of Practice and Procedure.

2

Unless indicated otherwise, all section references are to

sections of the Internal Revenue Code of 1986 as in effect for

proceedings commenced at the time the petition in the instant

case was filed.

3

In his petition, petitioner seeks abatement of interest.

In his response to respondent’s motion for summary judgment and

in his memorandum, petitioner seeks abatement of “interest and

penalties”. We do not have jurisdiction to review failures to

abate penalties. Woodral v. Commissioner, 112 T.C. 19, 21 n.4

(1999). We also do not have jurisdiction to review failures to

abate additions to tax, such as the sec. 6651(a) amounts that

have been assessed in the instant case. Krugman v. Commissioner,

112 T.C. 230, 237 (1999).

Petitioner does not explicitly claim an overpayment in his

petition. However, the parties agree that petitioner paid his

2000 tax obligation in full, including interest and penalties,

and we so find. Also, petitioner submitted to respondent a claim

for refund. Under sec. 6404(h)(2)(B), we have authority to

determine that there is an overpayment if we order an abatement

of interest. See Goettee v. Commissioner, T.C. Memo. 2003-43;

124 T.C. 286, 288, 295 (2005), affd. 192 Fed. Appx. 212 (4th Cir.

2006); see also Greene-Thapedi v. Commissioner, 126 T.C. 1, 10

n.18 (2006). Under these circumstances, we treat the petition as

implicitly raising a claim for overpayment.

- 3 Our statements as to the facts are based entirely on the

parties’ stipulations of facts and exhibits, those matters that

are admitted in the pleadings, and those matters that are

admitted in the motion papers.

Background

When the petition was filed in the instant case, petitioner

resided in the State of Washington.

Petitioner received an extension of time, until August 30,

2001, to file his 2000 Federal income tax return.

tax return on August 2, 2001.

He filed this

Table 1 sets forth pertinent items

shown on this tax return.

Table 1

Selected Items on Petitioner’s 2000 Tax Return (Form 1040)

Line on Form 1040

Amount Shown

L.7

L.8a

L.13

L.14

L.17

L.22

L.57

L.58

L.69

$1,283,285

26

(3,000)

2

(12,125)

1,268,188

478,130

351,727

126,403

Form W-2 income

Taxable interest

Capital loss

From Form 4797

From Schedule E

Total income

Tax

Withholding

Amount owed

Petitioner did not send any payment with his 2000 tax

return.

On or about June 12, 2001, petitioner telephoned an office

of the Internal Revenue Service (hereinafter sometimes referred

to as the IRS) to find out how to request an installment payment

- 4 plan for an estimated $120,000 remaining obligation on his 2000

income tax.

Petitioner was told to submit a Form 433-F,

Collection Information Statement, with a proposed payment plan

and supporting justification.

Petitioner submitted his proposed

installment plan, his Form 433-F, and his explanation for

requesting an installment plan (hereinafter sometimes

collectively referred to as the first installment proposal) to

the IRS on or about August 4, 2001.4

In the first installment

proposal petitioner proposed to pay the principal of $130,0005

over 8 years, in four $32,500 biennial installments, beginning

September 1, 2003.

He proposed to make monthly interest payments

at a 7.5-percent annual rate on the unpaid principal beginning

September 1, 2001.

The monthly interest payments would be $812

for the first 2 years.

4

On May 17, 2003, petitioner sent a letter to the IRS

penalty appeals coordinator, in Fresno, Calif., to which he

attached several documents, including the following: (1)

Petitioner’s appeal statement and facts (in which he states that

the first installment proposal was included in his 2000 tax

return, received by the IRS on “8/2/2001”), and (2) petitioner’s

stipulated IRS communication log (in which he states that he sent

the first installment proposal on “8/4/2001”). We assume the

contemporaneously kept log is probably more accurate than later

created narratives, and we have made our findings accordingly.

In this instance, the difference in dates between the statements

does not affect our conclusions.

5

The record does not explain the difference between the

$130,000 stated principal and the $126,403 shown as the amount

owed on his tax return. See supra table 1.

- 5 On September 3, 2001, the IRS assessed a $3,160.07 “Failure

to Pay Tax Penalty” (see supra note 3) and $3,307.90 of interest.

On September 10, 2001, the IRS credited petitioner’s account with

$300 “Immediate Tax Relief Credit” and assessed an additional

$178.48 of interest.

On each of these dates the IRS sent a

statutory notice of balance due to petitioner.

Petitioner’s case was assigned to Revenue Officer Karen

Krogue (hereinafter sometimes referred to as Krogue) on September

28, 2001.6

On October 24, 2001, Krogue sent a letter to

petitioner stating the balance due on petitioner’s account.

Krogue and petitioner each attempted to contact the other by

telephone on November 8, 2001 (and perhaps other times), and

finally met in Krogue’s office, in Bellevue, Washington, on

November 14, 2001.

At this meeting, Krogue and petitioner

discussed payment of the balance of petitioner’s 2000 tax

obligation.

Krogue told petitioner that respondent’s policy was

to collect payment in full if the taxpayer had enough assets to

satisfy the tax obligation, but that installment arrangements

were possible under certain circumstances.

Krogue told

petitioner that by December 14, 2001, he was to submit:

A Form

433-A, Collection Information Statement for Wage Earners and

6

So stated in Revenue Officer Krogue’s stipulated case

notes. Petitioner’s response and memorandum state that his case

was assigned to Krogue on or about Sept. 24, 2001. This

difference does not affect our conclusions.

- 6 Self-Employed Individuals, in place of Form 433-F (see Braun v.

Commissioner, T.C. Memo. 2005-221, n.7); copies of his bank

statements from January 1 to November 14, 2001; his last two

paycheck stubs; brokerage information; and mortgage balance.

On December 13, 2001, petitioner mailed to Krogue the

material she had requested.

Petitioner followed up with Krogue

on January 7, 2002, but was unable to reach her.

Krogue returned

petitioner’s call on January 8, 2002, and explained that she

would call petitioner the following week and that petitioner

should make a payment on his outstanding tax obligation.

Petitioner sent a check for $812 to Krogue in response to her

request.

This was the monthly interest amount set forth in the

first installment proposal, described supra.

Krogue received

petitioner’s check on January 10, 2002, and petitioner was

credited with an $812 payment as of January 10, 2002.

Petitioner telephoned Krogue on January 30 and February 8,

2002, and left messages because Krogue had not called him.

On

February 14, 2002, Krogue called petitioner, told him she had

been overwhelmed at work and had not yet looked at the materials

he had sent in December, and promised to get to his case in the

next week.

Krogue had not been able to deal with petitioner’s

case because of the following:

Holiday leave; ICS being down;

- 7 e-file problems; problems getting computers and printers up and

running; helping other revenue officers with a Tax Wise program;

and walk-in counter duty.7

On February 26, 2002, Krogue performed a “DMV Search” and a

“Real Prop Search” to examine petitioner’s ownership of motor

vehicles and a condominium.

Also, on that date she examined the

materials petitioner had submitted and noted the additional

questions she wanted to ask of petitioner.

On February 26, 2002, Krogue telephoned petitioner while he

was on vacation; she left a message.

On March 6, 2002,

petitioner telephoned Krogue; he left a message.

On March 8, 2002, Krogue telephoned petitioner.

On this

call, Krogue questioned petitioner about the material he had

submitted.

In particular, Krogue asked about the following items

and petitioner provided the information during this telephone

call:

(1) Where are the other vehicles listed with the

Department of Motor Vehicles?

(2) What is the address of the

boat and does petitioner pay a monthly slip fee?

(3) What is the

deduction for health club on petitioner’s pay stub?

club or for insurance?

and “PACC”?

7

Is it for a

(4) What are the deductions for “ESPP”

(5) How often does petitioner receive bonuses?

Krogue’s stipulated case notes show this telephone call

taking place on Feb. 13, 2002, and Krogue agreeing to get back to

petitioner not later than “2/4/02”. Our findings are in accord

with petitioner’s stipulated IRS communication log.

- 8 (6) What are the “branch share deposits”?

She then suggested

that petitioner propose a payment plan that would fully pay his

obligations over a period of less than 7 years, with annual

payments of $5-$10 thousand in addition to the $32,500 biennial

payments that petitioner had proposed, plus monthly payments.

Petitioner agreed to put together another proposal.

On March 12, 2002, petitioner faxed to Krogue a revised

installment proposal (hereinafter sometimes referred to as the

second installment proposal).

Under the second installment

proposal, petitioner would pay $7,500 on September 15, 2002,

2003, and 2004, $40,000 on September 15, 2005, $7,500 on

September 16, 2006 and 2007, and another $54,500 also on

September 15, 2007.8

In addition, petitioner would pay $229 per

month, in place of the first installment proposal’s 7.5 percent

interest payments, which would have started at $812 per month.

On April 2 (Krogue’s notes) or 3 (petitioner’s notes), 2002,

petitioner and Krogue discussed the second installment proposal.

Krogue indicated she would try to get her supervisor to agree to

it if petitioner would agree to increase the monthly payments

from $229 to $350.

Petitioner agreed to this change.

The lump-

sum payments would be set for September 17, rather than September

15, of each year.

8

Krogue suggested that petitioner make a

So stated on the stipulated copy of the second installment

proposal. It appears that the $54,500 payment was intended to be

proposed for Sept. 15, 2008.

- 9 monthly $350 payment at this point, but, petitioner’s notes

indicate:

“I make no payment thinking I will be paying per a

formal agreement in the near future.”

On April 4, 2002, Krogue reviewed the Internal Revenue

Manual provisions regarding installment payment plans and

concluded that petitioner could fully pay his 2000 tax obligation

and so did not qualify for an installment payment plan.

Krogue

spoke with petitioner on April 24, 2002, and explained that she

could not accept petitioner’s installment plan because petitioner

had assets sufficient to fully pay his 2000 tax obligation.

Krogue agreed to speak with her supervisor, Craig Rogers

(hereinafter sometimes referred to as Rogers), about the matter

and, if Rogers agreed with Krogue’s conclusion, then petitioner

could speak with Rogers.

Rogers agreed with Krogue that

petitioner had assets sufficient to fully pay his 2000 tax

obligation and, consequently, petitioner’s request for an

installment payment plan should be denied.

On May 1, 2002, Krogue told petitioner that Rogers agreed

with her that petitioner was not eligible for an installment

payment arrangement.

She advised petitioner that he could

discuss the matter with Rogers.

Petitioner complained about the

delay in receiving this ruling; he told Krogue that, if Krogue

had told him that he was ineligible when they first began to work

together on this payment problem, then he could have sold his

- 10 American Express stock and had more than enough left over after

his margin loan to pay his 2000 tax liability in full and have

$100,000 in addition.

Now, petitioner said, the net proceeds of

a sale would not be enough to pay the liability in full.

Petitioner and Krogue then discussed the possibility of an

arrangement with the liability being paid at the end of the year.

Petitioner then spoke with Rogers that same day.

Petitioner

explained to Rogers petitioner’s impression that an installment

plan was possible, that he had a tentative agreement with Krogue

for an installment plan, and that if petitioner had known an

installment plan was not an option, then he would have made

different decisions regarding asset management.

Rogers agreed to

reconsider petitioner’s proposal for an installment plan.

Petitioner telephoned Rogers on May 10, 2002.

Rogers told

petitioner that Krogue would call petitioner with the details of

a 1-year installment plan that would be offered to petitioner.

Krogue telephoned petitioner on May 17, 2002, and left a message.

Petitioner telephoned Krogue on May 20, 2002, and left a message.

Krogue telephoned petitioner on May 21, 2002, regarding the

monthly installments and the total amount due.

They agreed to

$400 monthly installment amounts for 11 months with the balance

due on the 12th month, but they did not agree on the total amount

due.

Specifically, they disagreed about the interest and

penalties that had accrued since Krogue first received

- 11 petitioner’s case.

Petitioner then spoke with Rogers and

reiterated his objections to the accrued interest and penalties.

Rogers declined to abate petitioner’s penalties and explained

that petitioner could file an appeal of this decision with the

Office of the Taxpayer Advocate.

Petitioner received the necessary forms from Krogue on May

31, 2002.

He noticed that the installment payment plan required

monthly payments of $600 instead of $400.

series of missed telephone calls.

There followed a

On June 12, 2002, petitioner

telephoned Krogue, who agreed that petitioner should cross out

the $600 and replace it with $400, sign the forms as corrected,

and return the forms to Krogue.

on June 14, 2002.

Krogue received the signed forms

On June 24, 2002, petitioner received a

notification that the IRS accepted the 1-year installment

arrangement.

The next day, petitioner mailed the first $400

monthly payment, which was credited to his 2000 tax account on

June 27, 2002.

A 2001 overpayment of $4,343 was credited to

petitioner’s 2000 tax account as of April 15, 2002.

Petitioner continued to make his monthly installment

payments through November 2002.

On December 13, 2002, petitioner

paid his remaining 2000 tax obligation in full, including

interest and penalties.

- 12 Respondent’s failure to abate interest for the period

November 14 through December 13, 2001, was not an abuse of

discretion.

Respondent’s failure to abate interest for the period

December 14, 2001, through February 25, 2002, was not an abuse of

discretion, other than to the extent to which such failure

related to one or more managerial acts.

Respondent’s failure to abate interest for the period

February 26 through May 30, 2002, was not an abuse of discretion.

Krogue’s error in requiring monthly payments of $600,

instead of the $400 that had been agreed upon, was an error in

performing a ministerial act.

Respondent’s failure to abate interest for the period June

26 through December 13, 2002, was not an abuse of discretion.

Discussion

1.

Parties’ Contentions, Summary, and Conclusions

Petitioner brought the instant case to seek abatement of

interest.

tax.)

(See supra note 3, as to penalties and additions to

Respondent moved for summary judgment.

Petitioner contends that respondent’s personnel “provided

inaccurate information * * * [and] were dilatory in performing

their managerial and ministerial acts”, and so this Court should

order an abatement of interest.

Respondent contends that:

The delay in petitioner’s tax payment (giving rise to the

(1)

- 13 interest sought to be abated) was not caused by any error or

dilatory action of respondent in performing a managerial or

ministerial act, (2) petitioner was solely responsible for the

delay in paying the taxes shown on his tax return, and (3)

respondent did not abuse respondent’s discretion in denying

petitioner’s request to abate interest.

It is not enough for petitioner to show that interest is

attributable to IRS officers’ or employees’ being erroneous or

dilatory; he also must show that they were erroneous or dilatory

“in performing a ministerial or managerial act”.

6404(e)(1)(B).

Sec.

Further, petitioner must show that respondent’s

failure to abate interest was an abuse of discretion.

However,

by moving for summary judgment, respondent has assumed the

obligation of showing that respondent is entitled to a decision

as a matter of law.

See Rule 121(b).

By and large, respondent has satisfied this obligation.

However, we conclude that, as to portions of two periods

respondent has come up short because of the absence of

information or even clear allegations--one involving delays in

performing managerial acts and one involving an error in

performing a ministerial act.

Accordingly, respondent’s motion for summary judgment will

be granted in part and denied in part.

- 14 2.

Summary Judgment

Summary judgment is a procedure used to expedite litigation;

it is intended to avoid unnecessary and expensive trials.

However, it is not a substitute for trial; it should not be used

to resolve genuine disputes over material factual issues.

Cox v.

American Fidelity & Casualty Co., 249 F.2d 616, 618 (9th Cir.

1957); Vallone v. Commissioner, 88 T.C. 794, 801 (1987).

A

motion for summary judgment will be granted “if the pleadings,

answers to interrogatories, depositions, admissions, and any

other acceptable materials, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and

that a decision may be rendered as a matter of law.”

Rule

121(b).

Because the effect of granting a motion for summary judgment

is to decide the case against a party without allowing that party

an opportunity for trial, the procedure should be “cautiously

invoked” and the motion should be granted only after a careful

consideration of the case.

Associated Press v. United States,

326 U.S. 1, 6 (1945); Cox v. American Fidelity & Casualty Co.,

249 F.2d at 618; Kroh v. Commissioner, 98 T.C. 383, 390 (1992).

The moving party has the burden of showing the absence of a

genuine issue as to any material fact.

Dahlstrom v.

Commissioner, 85 T.C. 812, 821 (1985).

For these purposes, the

party opposing the motion is to be afforded the benefit of all

- 15 reasonable doubt, and the material submitted by both sides must

be viewed in the light most favorable to the opposing party; that

is, all doubts as to the existence of an issue of material fact

must be resolved against the movant.

E.g., Adickes v. S.H. Kress

& Co., 398 U.S. 144, 157 (1970); Dreher v. Sielaff, 636 F.2d

1141, 1143 n.4 (7th Cir. 1980); Kroh v. Commissioner, 98 T.C. at

390.

3.

Abatement of Interest

a.

In General

Section 6404(e)(1)9 authorizes the Commissioner to abate

9

Sec. 6404(e)(1) provides as follows:

SEC. 6404.

*

ABATEMENTS.

*

*

*

*

*

*

(e) Abatement of Interest Attributable to

Unreasonable Errors and Delays by Internal Revenue

Service.-(1) In general.--In the case of any

assessment of interest on-(A) any deficiency attributable in whole

or in part to any unreasonable error or delay

by an officer or employee of the Internal

Revenue Service (acting in his official

capacity) in performing a ministerial or

managerial act, or

(B) any payment of any tax described in

section 6212(a) to the extent that any

unreasonable error or delay in such payment

is attributable to such an officer or

employee being erroneous or dilatory in

performing a ministerial or managerial act,

(continued...)

- 16 assessed interest attributable to unreasonable errors or delays

by IRS employees or officials in performing ministerial or

managerial acts.

The Commissioner may abate interest only when

no significant aspect of the error or delay is attributable to

the taxpayer and only for time periods after the IRS has

contacted the taxpayer in writing with respect to the tax

payment.10

Section 6404(e) does not define the terms “ministerial act”

and “managerial act”.

Section 301.6404-2(b), Proced. & Admin.

Regs., provides as follows:

§ 301.6404-2.

*

Abatement of interest. * * *

*

*

*

*

*

*

(b) Definitions.--(1) Managerial act.--means an

administrative act that occurs during the processing of

a taxpayer’s case involving the temporary or permanent

loss of records or the exercise of judgment or

discretion relating to management of personnel. A

decision concerning the proper application of federal

9

(...continued)

the Secretary may abate the assessment of all or

any part of such interest for any period. For

purposes of the preceding sentence, an error or

delay shall be taken into account only if no

significant aspect of such error or delay can be

attributed to the taxpayer involved, and after the

Internal Revenue Service has contacted the

taxpayer in writing with respect to such

deficiency or payment.

10

The instant case involves a failure to timely pay the tax

liability shown by petitioner on his timely filed tax return and

not a deficiency. Accordingly, respondent is correct in

asserting that subpar. (A) of sec. 6404(e)(1) does not apply, and

petitioner does not contend otherwise.

- 17 tax law (or other federal or state law) is not a

managerial act. Further, a general administrative

decision, such as the IRS’s decision on how to organize

the processing of tax returns or its delay in

implementing an improved computer system, is not a

managerial act for which interest can be abated under

paragraph (a) of this section.

(2) Ministerial act.--means 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. A decision concerning

the proper application of federal tax law (or other

federal or state law) is not a ministerial act.

Section 6404(h)11 authorizes this Court to decide whether

11

Sec. 6404(h) provides, in pertinent part, as follows:

SEC. 6404.

*

ABATEMENTS.

*

*

*

*

*

*

(h) Review of Denial of Request for Abatement of

Interest.-(1) In general.--The Tax Court shall have

jurisdiction over any action brought by a taxpayer

who meets the requirements referred to in section

7430(c)(4)(A)(ii) to determine whether the

Secretary’s failure to abate interest under this

section was an abuse of discretion, and may order

an abatement, if such action is brought within 180

days after the date of the mailing of the

Secretary’s final determination not to abate such

interest.

(2) Special rules.-(A) Date of mailing.--Rules similar to

the rules of section 6213 shall apply for

purposes of determining the date of the

mailing referred to in paragraph (1).

(continued...)

- 18 The Commissioner’s failure to abate such interest is an abuse of

discretion and, if so, then to order an abatement.

See Krugman

v. Commissioner, 112 T.C. 230, 238-240 (1999); Woodral v.

Commissioner, 112 T.C. 19, 25 (1999).

We proceed to consider the application of the foregoing to

the time periods drawn in question.12

b.

Time Periods

The petition does not specify the period for which

petitioner seeks interest abatement.

The claim for refund

petitioner submitted to respondent appears to be for the period

September 3, 2001, through December 13, 2002.

Petitioner’s

response to respondent’s summary judgment motion specifies the

period November 14, 2001, through December 13, 2002.

Respondent’s memorandum deals with the period April 15, 2001,

through December 13, 2002.

11

Petitioner’s memorandum again asks

(...continued)

(B) Relief.--Rules similar to the rules

of section 6512(b) shall apply for purposes

of this subsection.

(C) Review.--An order of the Tax Court

under this subsection shall be reviewable in

the same manner as a decision of the Tax

Court, but only with respect to the matters

determined in such order.

12

Petitioner does not contend that respondent’s interest

calculations contain computational errors. Compare Goettee v.

Commissioner, 124 T.C. at 288, 292, T.C. Memo. 2003-43, Opin.

Part II; affd. 192 Fed. Appx. 212 (4th Cir. 2006), where the

taxpayers did make such a contention.

- 19 for relief for the period November 14, 2001, through December 13,

2002.

We take it that petitioner has abandoned any claim for

abatement for periods before November 14, 2001, the date

petitioner and Krogue first met each other in Krogue’s office.

Under these circumstances, we shall not comment on respondent’s

contentions insofar as they relate to periods before November 14,

2001.

Also, petitioner’s claim is entirely under section

6404(e), and he does not claim entitlement to an abatement under

section 6404(f); we shall not comment on respondent’s contentions

regarding section 6404(f).

(1)

First Period (Nov. 14--Dec. 13, 2001)

At their November 14, 2001, meeting Krogue told petitioner

that respondent’s policy was to collect payment in full if the

taxpayer had enough assets to satisfy the tax liabilities but

that installment arrangements were possible under certain

circumstances.

She told petitioner to submit certain materials

by December 14, 2001.

Petitioner mailed the requested material

to Krogue on December 13, 2001.

Krogue was engaged in the

process of gathering the information and documentation

appropriate to lay the foundation for a decision as to whether

the IRS should allow petitioner to extend the period for payment

of his acknowledged tax liability.

Petitioner’s summary of what

- 20 Krogue told him appears to correctly describe the IRS’s policy in

such matters.

As best we can tell from petitioner’s memorandum,

the gravamen of petitioner’s claim is that-if she [Krogue] had determined that I had the assets to

pay the tax in full, was it not her duty to demand

payment in full at that time? With the fact that my

ability to pay was clearly eroding throughout the time

in which Ms. Krogue was assigned to my case (due to a

decline in the value of my investment portfolio), why

was Ms. Krogue unable to determine I had the ability to

pay in (or before) November, 2001, yet able to

determine I could in April, 2002, when I clearly had

less ability to pay?

As it developed, the IRS and petitioner ultimately did agree

on an installment arrangement, although it was far less generous

than that which petitioner proposed.

Thus, the matter was not

open and shut, as petitioner seems to contend.

Krogue described

the basic ground rules to petitioner and proceeded to gather

information helpful to a determination on this matter.

Viewing the record most favorably to petitioner, we conclude

that Krogue’s actions were neither erroneous nor dilatory in

performing a ministerial or managerial act during the first

period.

We shall grant respondent’s summary judgment motion with

respect to the first period.

(2)

Second Period (Dec. 14, 2001--Feb. 25, 2002)

Petitioner and Krogue back-and-forthed telephone calls. On

one of these telephone calls Krogue explained to petitioner what

matters had been keeping her from attending to petitioner’s case.

On February 26, 2002, Krogue examined the material petitioner had

- 21 submitted and also did some other research as to petitioner’s

motor vehicles and real property.

She telephoned petitioner, who

was on vacation; she left a message.

It is clear that “the ball was in the IRS’s court” during

this period, and nothing happened to move the matter along until

February 26, 2002.13

However, a statutory requirement for any relief is that the

IRS’s error or delay be in performing a ministerial or managerial

act.

Sec. 6404(e)(1)(B).

Krogue’s evaluating petitioner’s submitted materials and

otherwise researching petitioner’s assets are not ministerial

acts because (1) they involve the exercise of judgment or

discretion, (2) supervisors’ review had not yet taken place, and

(3) they involve the proper application of Federal tax law.

See

sec. 301.6404-2(b)(2), Proced. & Admin. Regs.; Corson v.

Commissioner, 123 T.C. 202, 207 (2004); Lee v. Commissioner, 113

T.C. 145, 149-150 (1999); Goettee v. Commissioner, T.C. Memo.

2003-43 (I. Abatements of Interest) (quoting Minahan v.

Commissioner, 88 T.C. 492, 505 (1987)), affd. 192 Fed. Appx. 212

(4th Cir. 2006).

Consequently, during the second period Krogue

was not being erroneous or dilatory in performing a ministerial

act.

13

On Jan. 8, 2002, Krogue told petitioner he should make a

payment; 2 days later she had petitioner’s check for the first

payment on petitioner’s first installment proposal.

- 22 We proceed to examine the alternative statutory requirement

relating to a managerial act.

Respondent concedes that-The decision not to reassign petitioner’s case

during Revenue Officer Krogue’s leave over the holidays

or while she assisted other revenue officers with the

TaxWise program is a management [managerial?] act under

I.R.C. § 6404(e)(1). See Treas. Reg. §§ 301.64042(b)(1) and (c), Example 5.

However, respondent contends (1) this decision was not an error

or dilatory act, (2) the delay was not for an unreasonable period

of time,14 (3) the ICS being down and e-file problems are not

managerial acts, and (4) the dedication of personnel to the efile program and walk-in counter duty are general administrative

decisions and are not managerial acts for which interest can be

abated under the provisions before us.

On the last point,

respondent cites section 301.6404-2(c), Examples (8) and (9),

Proced. & Admin. Regs.

In evaluating these contentions we bear in mind that:

(1)

The setting is respondent’s motion for summary judgment and not a

submitted case, (2) all the relevant facts occurred in the IRS’s

operations, and (3) respondent’s submissions do not include

14

On memorandum, respondent states as follows:

There is no evidence that Revenue Officer Krogue was

granted an extended period of leave or that she

provided assistance to other revenue officers for an

extended period of time. In fact, the timeline of

events suggest that these events were not for an

extended period.

- 23 details on these matters.

Respondent has not directed our

attention to standards for determining what is “an extended

period” under these circumstances.

See supra note 14.

Respondent has not told us how long Krogue’s leave was, how long

Krogue was assisting other revenue officers or filling other

roles, and how ICS being down and e-file problems affected

Krogue’s duties.

Also, examples 8 and 9 of the regulations,

relating to prioritization of tax return processing and auditing

a tax shelter before auditing an investor in the shelter, are

clearly distinguishable from the activities briefly mentioned in

the materials submitted to us in connection with respondent’s

summary judgment motion.

In order to be entitled to summary judgment respondent must

show “that a decision may be rendered as a matter of law.”

Rule 121(b).

See

Because of the above-described lack of clarity as

to material facts, we conclude that respondent has failed to make

the necessary showing.

Accordingly, we shall deny respondent’s summary judgment

motion as to the managerial act alternative for the second

period.

(3)

Third Period (Feb. 26--June 24, 2002)

This period included a number of important dealings between

petitioner and Krogue.

Krogue suggested changes to the first

installment proposal to make it more likely to be accepted.

- 24 Petitioner submitted the second installment proposal.

made a further modification at Krogue’s suggestion.

Petitioner

Krogue did

further research and concluded that the modified second

installment proposal would not be acceptable.

supervisor (Rogers) agreed with Krogue.

Krogue’s

Petitioner spoke with

Rogers, who agreed to reconsider the matter.

Rogers then decided

that he and Krogue were correct and the modified second

installment proposal was not acceptable.

Rogers then directed

Krogue to offer a 1-year installment arrangement, which

petitioner reluctantly accepted.

forms she sent to petitioner.

Krogue made a mistake on the

After a series of missed telephone

calls, Krogue agreed she had made a mistake and directed

petitioner to ink in the corrections.

corrected forms to Krogue.

Petitioner sent the

Petitioner was notified that the IRS

accepted the 1-year installment arrangement.

The next day, June

25, 2002, petitioner mailed the first monthly payment.

Most of the time during this period, the matter proceeded

toward resolution.

Krogue’s failure to realize sooner that the

modified second installment proposal would not be acceptable was

not an error or delay in performing ministerial acts because (1)

it involved the exercise of judgment or discretion, (2)

supervisors’ review had not yet taken place, and (3) it involved

the proper application of Federal tax law.

2(b)(2), Proced. & Admin. Regs.

See sec. 301.6404-

Consequently, until the

- 25 rejection of the modified second installment proposal, Krogue was

not being erroneous or dilatory in performing a ministerial act.

The negotiation of the IRS’s detailed proposal did not

involve an error or delay.

On May 31, 2002, petitioner received the necessary forms

from Krogue and noticed that they required $600 monthly payments

instead of the agreed-upon $400 monthly payments.

forthed, finally speaking on June 12, 2002.

They back-and-

Krogue’s notes are

as follows:

TP/POA CONTACT

RESULTS: TC from TP. Reviewed RO history and

5/21/02 history states that IA should be for $400.00 a

month. Agreed w/TP and ask him to cross out the

$600.00 and input $400.00, sign and return to RO. TP

agreed.

This error did not involve the exercise of judgment or

discretion, the supervisor’s review had already taken place, and

there was no problem of application of Federal tax law.

We

conclude, and we have found, that in this matter Krogue was

erroneous in performing a ministerial act.

The record does not show whether the delay in processing the

installment payment agreement resulted in a delay in making

payments of tax, within the meaning of section 6404(e)(1)(B).

For purposes of respondent’s summary judgment motion, in the

absence of any reason to conclude otherwise, we assume that

Krogue’s error, which came to petitioner’s attention on May 31,

2002, and was corrected on June 12, 2002, caused a delay of at

- 26 least 13 days in the processing of the installment payment

agreement, and a concomitant delay in the start of petitioner’s

payments under the agreement.

Further examination into what

happened may result in a different conclusion.

Whether Krogue’s

error resulted in a delay in payment is an uncertainty as to a

material fact and to this extent we conclude that respondent has

failed to make the showing necessary to warrant granting the

summary judgment motion.

See Dahlstrom v. Commissioner, 85 T.C.

at 821.

Accordingly, we shall deny respondent’s summary judgment

motion with respect to the May 31 through June 24, 2002, portion

of the third period.

However, we conclude and we have found that, during the

third period through May 30, 2002, neither Krogue nor Rogers was

erroneous or dilatory in performing a ministerial or managerial

act.

We shall grant respondent’s summary judgment motion with

respect to this portion of the third period.

(4)

Fourth Period (June 25--Dec. 13, 2002)

Petitioner mailed the first payment on his 1-year

installment plan on June 25, 2002, and continued making monthly

payments through November 2002.

Petitioner paid the balance of

his 2000 tax obligation on December 13, 2002.

The record herein

does not show contacts between petitioner and the IRS during this

period other than petitioner’s mailing his payments to the IRS.

- 27 Petitioner does not direct our attention to any actions or

failures to act by IRS employees that could be considered

erroneous or dilatory ministerial or managerial actions or

failures to act during this period.

Viewing the record most favorably to petitioner, we conclude

that no IRS officials or employees were erroneous or dilatory in

performing a ministerial or managerial act during the fourth

period.

We have found that respondent’s failure to abate

interest for this period was not an abuse of discretion.

We

shall grant respondent’s summary judgment motion with respect to

the fourth period.

c.

Other Matters

(1)

Petitioner’s Deemed Motion

Petitioner does not appear to dispute respondent’s

contention that there is no genuine issue as to any material

fact, but he requests “adjudication in my favor” on the merits of

the underlying case.

We have occasionally treated such

situations as deemed cross-motions for summary judgment.

If we

had done so in the instant case, however, we would be constrained

to deny the deemed cross-motion.

As to those parts of

respondent’s motion that we grant, it is clear that petitioner’s

case is lost.

As to those parts of respondent’s motion that we

deny, we do so not because the record shows that petitioner

should prevail, but because respondent has failed to present

- 28 statements about matters of fact necessary to justify the

granting of summary judgment to respondent.

The same absence of

information would require us to deny a deemed cross-motion.

Under these circumstances, it would be fruitless for us to go

through the detailed analysis necessary for a deemed cross-motion

for summary judgment.

(2)

Deceit

In his response to respondent’s summary judgment motion,

petitioner charged that his overpayment of interest “was directly

attributable to unreasonable errors, deceit, and dilatory

performance of managerial and ministerial acts by IRS officers

acting in their official capacities.”

We note that petitioner

did not include the “deceit” contention in his later memorandum.

To make the matter clear, we have examined the material before us

and we conclude that this material does not show that Krogue,

Rogers, or any other IRS employee or official committed any act

of deceit against petitioner in the instant case.

(3)

Petitioner’s Responsibility

Respondent contends that “Petitioner was solely responsible

for the delay in paying the taxes due per his tax return”.

This

contention is intended to invoke the statutory provision that “an

error or delay shall be taken into account only if no significant

aspect of such error or delay can be attributed to the taxpayer

involved”.

Sec. 6404(e)(1) (final flush language).

- 29 Respondent’s explanation for this contention is as follows:

“Petitioner was advised on two occasions to make tax payments.

In response to the first suggestion, made on January 8, 2002, he

made one de minimus payment of $812.00.

He ignored the second

request which was made on April 3, 2002.”

The $812 payment was the first payment required under the

first installment proposal.

Petitioner made the payment promptly

on receiving Krogue’s suggestion, and petitioner was credited

with that payment on January 10, 2002.

When petitioner and Krogue succeeded in communicating again,

Krogue suggested that petitioner submit a new proposal.

As a

result, petitioner promptly submitted the second installment

proposal.

The April 3, 2002, discussion that respondent refers

to occurred 4 weeks after Krogue had questioned petitioner at

length about his submissions and 3 weeks after she received the

second installment proposal.

Krogue asked petitioner to make a

$350 monthly payment on the modified second installment proposal,

but petitioner expected this proposal to be approved shortly and

so held off.

However, in short order the modified second

installment proposal was rejected.

On the basis of the foregoing analysis of the only specifics

that respondent offers, we conclude that petitioner generally

responded promptly to Krogue’s requests and directions and, to

use respondent’s words, petitioner was not solely responsible for

- 30 the delay in paying the taxes due per his tax return, and so that

is not a basis for denying petitioner’s claim for abatement of

interest.

Nevertheless, petitioner will not succeed in most of

his abatement claim for reasons set forth in the preceding

portions of this opinion granting in part respondent’s summary

judgment motion.

Also, as we have made plain, our ruling against

part of respondent’s summary judgment motion is not a ruling for

petitioner on any part of the underlying claim.

To take account of the foregoing,

An appropriate order will

be issued granting in part and

denying in part respondent’s

motion for summary judgment.