NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 06 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
WILLIAM D. FOOTE and ELIZABETH No. 15-73728
R. FOOTE,
Tax Ct. No. 1176-13
Petitioners-Appellants,
v. MEMORANDUM*
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted October 3, 2017**
Pasadena, California
Before: FERNANDEZ, RAWLINSON, and N.R. SMITH, Circuit Judges.
We affirm the tax court’s finding that the Commissioner of the Internal
Revenue Service (IRS) did not abuse his discretion in denying the Footes’ request
for abatement of interest.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
In his discretion, the Commissioner may abate the interest accrued on tax
deficiencies if the interest accrued as the result of an error or delay on the part of
the IRS in performing a ministerial act. 26 U.S.C. § 6404(e)(1)(A).
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.
26 C.F.R. § 301.6404-2(b)(2).1 The Commissioner did not abuse his discretion in
determining that the acts identified by the Footes do not fall within this definition.
In addition, the Commissioner cannot abate interest if the taxpayer is the
cause of a significant aspect of the error or delay. 26 U.S.C. § 6404(e)(1). In their
briefing, the Footes admit that “[t]he audit file lists missed appointments and
suggest[s] a lack of cooperation in production of requested documents.” We agree.
Consequently, the Commissioner did not abuse his discretion in determining that
the Footes caused a significant aspect of any alleged error or delay.
AFFIRMED.
1
Two regulations apply in this case: 26 C.F.R. § 301.6404-2 applies to tax
years after 1996 and 26 C.F.R. § 301.6404-2T applies to prior tax years. However,
both regulations contain essentially identical definitions of “ministerial act.” The
acts identified by the Footes do not meet either definition.
2