[Federal Register Volume 63, Number 243 (Friday, December 18, 1998)]
[Rules and Regulations]
[Pages 70012-70015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-33123]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 301

[TD 8789]
RIN 1545-AV32


Abatement of Interest

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Final regulation.

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SUMMARY: This document contains final regulations relating to the 
abatement of interest attributable to unreasonable errors or delays by 
an officer or employee of the IRS in performing a ministerial or 
managerial act. The final regulations reflect changes to the law made 
by the Tax Reform Act of 1986 and the Taxpayer Bill of Rights 2. The 
final regulations affect both taxpayers requesting abatement of certain 
interest and IRS personnel responsible for administering the abatement 
provisions.

DATES: Effective Date: These regulations are effective December 18, 
1998.
    Applicability Date: For dates of applicability, see Sec. 301.6404-
2(d).

FOR FURTHER INFORMATION CONTACT: Michael L. Gompertz, (202) 622-4910 
(not a toll-free number).

SUPPLEMENTARY INFORMATION:

Background

    This document contains amendments to the Procedure and 
Administration Regulations (26 CFR Part 301) relating to the abatement 
of interest attributable to unreasonable errors or delays by an officer 
or employee of the IRS under section 6404(e)(1) of the Internal Revenue 
Code. Section 6404(e)(1) was enacted by section 1563(a) of the Tax 
Reform Act of 1986 (1986 Act) (Public Law 99-514 (100 Stat. 2762) 
(1986)) and amended by section 301 of the Taxpayer Bill of Rights 2 
(TBOR2) (Public Law 104-168 (110 Stat. 1452) (1996)).
    Section 6404(e)(1) applies only to interest on taxes of a type for 
which a notice of deficiency is required by section 6212, that is, 
income tax, estate tax, gift tax, generation-skipping transfer tax, and 
certain excise taxes. Requests for abatement of interest should be made 
on Form 843, ``Claim for Refund and Request for Abatement.'' For more 
information, see Publication 556, ``Examination of Returns, Appeal 
Rights, and Claims for Refund.''
    As enacted by the 1986 Act, section 6404(e)(1) provided that the 
IRS may abate interest attributable to any error or delay by an officer 
or employee of the IRS (acting in an official capacity) in performing a 
ministerial act. The legislative history accompanying the Act provided:

    The committee intends that the term `ministerial act' be limited 
to nondiscretionary acts where all of the preliminary prerequisites, 
such as conferencing and review by supervisors, have taken place. 
Thus, a ministerial act is a procedural action, not a decision in a 
substantive area of tax law.

    H.R. Rep. No. 426, 99th Cong., 1st Sess. 845 (1985); S. Rep. No. 
313, 99th Cong., 2d Sess. 209 (1986).
    Further, Congress did not intend that the abatement of interest 
provision ``be used routinely to avoid payment of interest.'' H.R. Rep. 
No. 426, 99th Cong., 1st Sess. 844 (1985); S. Rep. No. 313, 99th Cong., 
2d Sess. 208 (1986). Rather, Congress intended abatement of interest to 
be used in instances ``where failure to abate interest would be widely 
perceived as grossly unfair.'' Id.
    In TBOR2, Congress amended section 6404(e)(1) to permit the IRS to 
abate interest attributable to any unreasonable error or delay by an 
officer or employee of the IRS (acting in an official capacity) in 
performing a managerial act as well as a ministerial act.
    Pursuant to the legislative history accompanying TBOR2, a 
managerial act includes a loss of records or a personnel management 
decision such as the decision to approve a personnel transfer, extended 
leave, or extended training. See H.R. Rep. No. 506, 104th Cong., 2d 
Sess. 27 (1996). The legislative history of TBOR2 distinguished a 
managerial act from a general administrative decision and provided that 
interest would not be abated for delays resulting from general 
administrative decisions. For example,

[[Page 70013]]

the taxpayer could not claim that the IRS's decision on how to organize 
the processing of tax returns or its delay in implementing an improved 
computer system resulted in an unreasonable delay in the Service's 
action on the taxpayer's tax return, and so the interest on any 
subsequent deficiency should be waived. The amendments to section 
6404(e)(1) are effective for interest accruing with respect to 
deficiencies or payments for taxable years beginning after July 30, 
1996.
    On August 13, 1987, the IRS published temporary regulations (TD 
8150) in the Federal Register (52 FR 30162) relating to the definition 
of ministerial act for purposes of abatement of interest. A notice of 
proposed rulemaking (LR-34-87) cross-referencing the temporary 
regulations was also published in the Federal Register for the same day 
(52 FR 30177). No public hearing regarding these regulations was 
requested or held.
    On January 8, 1998, the IRS published in the Federal Register a 
notice of proposed rulemaking (REG-209276-87) under section 6404(e)(1) 
withdrawing the prior notice of proposed rulemaking and reproposing a 
modified version of the prior notice to incorporate the changes made by 
TBOR2 (63 FR 1086).
    One written comment was received on the proposed regulations. No 
public hearing regarding these regulations was requested or held. After 
consideration of the written comment, the proposed regulations 
published on January 8, 1998, are adopted with minor changes by this 
Treasury decision.

Public Comments

    A comment letter was received proposing that a special effective 
date rule be added to the regulations applicable to the abatement of 
interest on estate tax. The comment letter noted that because estate 
tax is not imposed with respect to a taxable year, it is difficult to 
apply the effective date rule in the proposed regulations to estate 
tax.
    The comment letter also recommended that Example 11 be clarified to 
provide more detailed guidance in determining the amount of interest 
the IRS should abate. Further, the comment letter recommended that 
Example 12 be eliminated because errors in performing all interest 
computations should be considered ministerial. Finally, because it may 
be difficult for taxpayers to determine whether there has been delay by 
the IRS in performing a ministerial or managerial act, the comment 
letter recommended that the regulations authorize the Taxpayer Advocate 
to investigate on behalf of taxpayers the manner in which the IRS 
processed their cases. The commentator believes that this would assist 
taxpayers in filing requests for interest abatement.

Explanation of Provisions

    In accordance with the first recommendation made in the comment 
letter, the final regulations include special effective date rules 
applicable to the abatement of interest on estate tax, gift tax, and 
generation-skipping transfer tax. The final regulations apply if the 
death occurred after July 30, 1996, or if the gift was made or the 
generation-skipping transfer occurred after December 31, 1996.
    The other recommendations made in the comment letter are not 
adopted. The Treasury Department and the IRS believe that Example 11 
does not need any clarification and that Example 12 is essentially 
correct as written (however, this Treasury decision makes minor 
modifications to Example 12). Finally, the Treasury Department and the 
IRS believe that it is not necessary for the regulations to authorize 
the Taxpayer Advocate to assist taxpayers in regard to interest 
abatement claims. Taxpayers who seek abatement of interest should file 
Form 843. If the taxpayer believes the IRS has improperly denied the 
request for abatement, the taxpayer may seek the assistance of the 
Taxpayer Advocate without specific authorization in the regulations. 
Also, the taxpayer may file a petition in the Tax Court under section 
6404(g) to obtain judicial review of the denial of the request for 
abatement.
    The final regulations add a new example (Example 13) to the 
regulations. This example clarifies that if the examination of a 
taxpayer's return is delayed, and both the actions of the taxpayer and 
those of the IRS contribute to the overall delay, the IRS cannot abate 
interest attributable to delay caused by the taxpayer. However, the IRS 
may abate interest attributable to unreasonable delay in the 
performance of a ministerial or managerial act if no significant aspect 
of this delay is attributable to the taxpayer.
    Finally, the final regulations make obsolete Rev. Proc. 87-42 
(1987-2 C.B. 589). Rev. Proc. 87-42 provides instructions for 
requesting interest abatement under section 6404(e) and examples 
illustrating the definition of ministerial act. The guidance provided 
by Rev. Proc. 87-42 is no longer needed. The instructions for 
requesting interest abatement are included in the instructions to Form 
843.

Effect on Other Documents

    Rev. Proc. 87-42 (1987-2 C.B. 589) is hereby terminated as of 
December 18, 1998.

Special Analyses

    It has been determined that this Treasury decision is not a 
significant regulatory action as defined in Executive Order 12866. 
Therefore, a regulatory assessment is not required. It also has been 
determined that section 553(b) of the Administrative Procedure Act (5 
U.S.C. chapter 5) does not apply to these regulations, and because the 
regulations do not impose a collection of information on small 
entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not 
apply. Pursuant to section 7805(f) of the Internal Revenue Code, the 
IRS submitted the notice of proposed rulemaking preceding these 
regulations to the Chief Counsel for Advocacy of the Small Business 
Administration for comment on its impact on small business.

Drafting Information

    The principal author of these regulations is David B. Auclair of 
the Office of Assistant Chief Counsel (Income Tax & Accounting). 
However, other personnel from the IRS and Treasury Department 
participated in their development.

List of Subjects in 26 CFR Part 301

    Employment taxes, Estate taxes, Excise taxes, Gift taxes, Income 
taxes, Penalties, Reporting and recordkeeping requirements.

Adoption of Amendments to the Regulations

    Accordingly, 26 CFR part 301 is amended as follows:

PART 301--PROCEDURE AND ADMINISTRATION

    Paragraph 1. The authority citation for part 301 is amended by 
adding an entry in numerical order for Section 301.6404-2 to read as 
follows:

    Authority: 26 U.S.C. 7805 * * *
    Section 301.6404-2 also issued under 26 U.S.C. 6404; * * *
    Par. 2. Section 301.6404-2 is added to read as follows:


Sec. 301.6404-2  Abatement of interest.

    (a) In general. (1) Section 6404(e)(1) provides that the 
Commissioner may (in the Commissioner's discretion) abate the 
assessment of all or any part of interest on any--
    (i) Deficiency (as defined in section 6211(a), relating to income, 
estate, gift, generation-skipping, and certain excise taxes) 
attributable in whole or in part to

[[Page 70014]]

any unreasonable error or delay by an officer or employee of the 
Internal Revenue Service (IRS) (acting in an official capacity) in 
performing a ministerial or managerial act; or
    (ii) Payment of any tax described in section 6212(a) (relating to 
income, estate, gift, generation-skipping, and certain excise taxes) to 
the extent that any unreasonable error or delay in payment is 
attributable to an officer or employee of the IRS (acting in an 
official capacity) being erroneous or dilatory in performing a 
ministerial or managerial act.
    (2) An error or delay in performing a ministerial or managerial act 
will be taken into account only if no significant aspect of the error 
or delay is attributable to the taxpayer involved or to a person 
related to the taxpayer within the meaning of section 267(b) or section 
707(b)(1). Moreover, an error or delay in performing a ministerial or 
managerial act will be taken into account only if it occurs after the 
IRS has contacted the taxpayer in writing with respect to the 
deficiency or payment. For purposes of this paragraph (a)(2), no 
significant aspect of the error or delay is attributable to the 
taxpayer merely because the taxpayer consents to extend the period of 
limitations.
    (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 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.
    (c) Examples. The following examples illustrate the provisions of 
paragraphs (b) (1) and (2) of this section. Unless otherwise stated, 
for purposes of the examples, no significant aspect of any error or 
delay is attributable to the taxpayer, and the IRS has contacted the 
taxpayer in writing with respect to the deficiency or payment. The 
examples are as follows:

    Example 1. A taxpayer moves from one state to another before the 
IRS selects the taxpayer's income tax return for examination. A 
letter explaining that the return has been selected for examination 
is sent to the taxpayer's old address and then forwarded to the new 
address. The taxpayer timely responds, asking that the audit be 
transferred to the IRS's district office that is nearest the new 
address. The group manager timely approves the request. After the 
request for transfer has been approved, the transfer of the case is 
a ministerial act. The Commissioner may (in the Commissioner's 
discretion) abate interest attributable to any unreasonable delay in 
transferring the case.
    Example 2. An examination of a taxpayer's income tax return 
reveals a deficiency with respect to which a notice of deficiency 
will be issued. The taxpayer and the IRS identify all agreed and 
unagreed issues, the notice is prepared and reviewed (including 
review by District Counsel, if necessary), and any other relevant 
prerequisites are completed. The issuance of the notice of 
deficiency is a ministerial act. The Commissioner may (in the 
Commissioner's discretion) abate interest attributable to any 
unreasonable delay in issuing the notice.
    Example 3. A revenue agent is sent to a training course for an 
extended period of time, and the agent's supervisor decides not to 
reassign the agent's cases. During the training course, no work is 
done on the cases assigned to the agent. The decision to send the 
revenue agent to the training course and the decision not to 
reassign the agent's cases are not ministerial acts; however, both 
decisions are managerial acts. The Commissioner may (in the 
Commissioner's discretion) abate interest attributable to any 
unreasonable delay resulting from these decisions.
    Example 4. A taxpayer appears for an office audit and submits 
all necessary documentation and information. The auditor tells the 
taxpayer that the taxpayer will receive a copy of the audit report. 
However, before the report is prepared, the auditor is permanently 
reassigned to another group. An extended period of time passes 
before the auditor's cases are reassigned. The decision to reassign 
the auditor and the decision not to reassign the auditor's cases are 
not ministerial acts; however, they are managerial acts. The 
Commissioner may (in the Commissioner's discretion) abate interest 
attributable to any unreasonable delay resulting from these 
decisions.
    Example 5. A taxpayer is notified that the IRS intends to audit 
the taxpayer's income tax return. The agent assigned to the case is 
granted sick leave for an extended period of time, and the 
taxpayer's case is not reassigned. The decision to grant sick leave 
and the decision not to reassign the taxpayer's case to another 
agent are not ministerial acts; however, they are managerial acts. 
The Commissioner may (in the Commissioner's discretion) abate 
interest attributable to any unreasonable delay caused by these 
decisions.
    Example 6. A revenue agent has completed an examination of the 
income tax return of a taxpayer. There are issues that are not 
agreed upon between the taxpayer and the IRS. Before the notice of 
deficiency is prepared and reviewed, a clerical employee misplaces 
the taxpayer's case file. The act of misplacing the case file is a 
managerial act. The Commissioner may (in the Commissioner's 
discretion) abate interest attributable to any unreasonable delay 
resulting from the file being misplaced.
    Example 7. A taxpayer invests in a tax shelter and reports a 
loss from the tax shelter on the taxpayer's income tax return. IRS 
personnel conduct an extensive examination of the tax shelter, and 
the processing of the taxpayer's case is delayed because of that 
examination. The decision to delay the processing of the taxpayer's 
case until the completion of the examination of the tax shelter is a 
decision on how to organize the processing of tax returns. This is a 
general administrative decision. Consequently, interest attributable 
to a delay caused by this decision cannot be abated under paragraph 
(a) of this section.
    Example 8. A taxpayer claims a loss on the taxpayer's income tax 
return and is notified that the IRS intends to examine the return. 
However, a decision is made not to commence the examination of the 
taxpayer's return until the processing of another return, for which 
the statute of limitations is about to expire, is completed. The 
decision on how to prioritize the processing of returns based on the 
expiration of the statute of limitations is a general administrative 
decision. Consequently, interest attributable to a delay caused by 
this decision cannot be abated under paragraph (a) of this section.
    Example 9. During the examination of an income tax return, there 
is disagreement between the taxpayer and the revenue agent regarding 
certain itemized deductions claimed by the taxpayer on the return. 
To resolve the issue, advice is requested in a timely manner from 
the Office of Chief Counsel on a substantive issue of federal tax 
law. The decision to request advice is a decision concerning the 
proper application of federal tax law; it is neither a ministerial 
nor a managerial act. Consequently, interest attributable to a delay 
resulting from the decision to request advice cannot be abated under 
paragraph (a) of this section.
    Example 10. The facts are the same as in Example 9 except the 
attorney who is assigned to respond to the request for advice is 
granted leave for an extended period of time. The case is not 
reassigned during the attorney's absence. The decision to grant 
leave and the decision not to reassign the taxpayer's case to 
another attorney are not ministerial acts; however, they are 
managerial acts. The Commissioner may (in the Commissioner's 
discretion) abate interest attributable to any unreasonable delay 
caused by these decisions.
    Example 11. A taxpayer contacts an IRS employee and requests 
information with respect to the amount due to satisfy the taxpayer's 
income tax liability for a particular taxable year. Because the 
employee fails to access the most recent data, the employee gives 
the taxpayer an incorrect amount due.

[[Page 70015]]

As a result, the taxpayer pays less than the amount required to 
satisfy the tax liability. Accessing the most recent data is a 
ministerial act. The Commissioner may (in the Commissioner's 
discretion) abate interest attributable to any unreasonable error or 
delay arising from giving the taxpayer an incorrect amount due to 
satisfy the taxpayer's income tax liability.
    Example 12. A taxpayer contacts an IRS employee and requests 
information with respect to the amount due to satisfy the taxpayer's 
income tax liability for a particular taxable year. To determine the 
current amount due, the employee must interpret complex provisions 
of federal tax law involving net operating loss carrybacks and 
foreign tax credits. Because the employee incorrectly interprets 
these provisions, the employee gives the taxpayer an incorrect 
amount due. As a result, the taxpayer pays less than the amount 
required to satisfy the tax liability. Interpreting complex 
provisions of federal tax law is neither a ministerial nor a 
managerial act. Consequently, interest attributable to an error or 
delay arising from giving the taxpayer an incorrect amount due to 
satisfy the taxpayer's income tax liability in this situation cannot 
be abated under paragraph (a) of this section.
    Example 13. A taxpayer moves from one state to another after the 
IRS has undertaken an examination of the taxpayer's income tax 
return. The taxpayer asks that the audit be transferred to the IRS's 
district office that is nearest the new address. The group manager 
approves the request, and the case is transferred. Thereafter, the 
taxpayer moves to yet another state, and once again asks that the 
audit be transferred to the IRS's district office that is nearest 
that new address. The group manager approves the request, and the 
case is again transferred. The agent then assigned to the case is 
granted sick leave for an extended period of time, and the 
taxpayer's case is not reassigned. The taxpayer's repeated moves 
result in a delay in the completion of the examination. Under 
paragraph (a)(2) of this section, interest attributable to this 
delay cannot be abated because a significant aspect of this delay is 
attributable to the taxpayer. However, as in Example 5, the 
Commissioner may (in the Commissioner's discretion) abate interest 
attributable to any unreasonable delay caused by the managerial 
decisions to grant sick leave and not to reassign the taxpayer's 
case to another agent.

    (d) Effective dates--(1) In general. Except as provided in 
paragraph (d)(2) of this section, the provisions of this section apply 
to interest accruing with respect to deficiencies or payments of any 
tax described in section 6212(a) for taxable years beginning after July 
30, 1996.
    (2) Special rules--(i) Estate tax. The provisions of this section 
apply to interest accruing with respect to deficiencies or payments 
of--
    (A) Estate tax imposed under section 2001 on estates of decedents 
dying after July 30, 1996;
    (B) The additional estate tax imposed under sections 2032A(c) and 
2056A(b)(1)(B) in the case of taxable events occurring after July 30, 
1996; and
    (C) The additional estate tax imposed under section 2056A(b)(1)(A) 
in the case of taxable events occurring after December 31, 1996.
    (ii) Gift tax. The provisions of this section apply to interest 
accruing with respect to deficiencies or payments of gift tax imposed 
under chapter 12 on gifts made after December 31, 1996.
    (iii) Generation-skipping transfer tax. The provisions of this 
section apply to interest accruing with respect to deficiencies or 
payments of generation-skipping transfer tax imposed under chapter 13--
    (A) On direct skips occurring at death, if the transferor dies 
after July 30, 1996; and
    (B) On inter vivos direct skips, and all taxable terminations and 
taxable distributions occurring after December 31, 1996.


Sec. 301.6404-2T  [Removed]

    Par. 3. Section 301.6404-2T is removed.

    Approved: October 20, 1998.
Michael P. Dolan,
Deputy Commissioner of Internal Revenue.

Donald C. Lubick,
Assistant Secretary of the Treasury.
[FR Doc. 98-33123 Filed 12-17-98; 8:45 am]
BILLING CODE 4830-01-U