T.C. Memo. 2009-39



                      UNITED STATES TAX COURT



                   LORENZO HILL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1047-08.                Filed February 18, 2009.



     Lorenzo Hill, pro se.

     James H. Harris, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     COHEN, Judge:   This action was commenced under section

6404(h) in response to a final determination by the Appeals

Office that petitioner is not entitled to abatement of interest

associated with his 1999 Federal income tax liability.    The only

issue for decision is whether the Appeals officer abused his

discretion in rejecting petitioner’s claim for abatement of
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interest.    Unless otherwise indicated, all section references are

to the Internal Revenue Code in effect for the year in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

                          FINDINGS OF FACT

     Some of the facts have been stipulated, and the stipulated

facts are incorporated in our findings by this reference.

Petitioner resided in New Jersey at the time his petition was

filed.

     Having no record of a return filed by petitioner for 1999,

on July 17, 2006, the Internal Revenue Service (IRS) sent to

petitioner a notice of deficiency for 1999.    The notice

determined that petitioner had a tax liability of $14,012 and was

also liable for additions to tax.    On October 30, 2006,

petitioner filed a petition with this Court seeking a

redetermination of the deficiency, but his case was dismissed for

lack of jurisdiction on January 22, 2007, because the petition

was untimely.

     After the case was dismissed, on or about March 1, 2007,

petitioner completed a tax return for 1999 and submitted it to

the IRS.    The return was accepted, and, on the basis of the

return, the IRS assessed an income tax liability of $2,140 and

additions to tax pursuant to section 6651(a)(1) and (2) on May

21, 2007.    Also at that time, the IRS assessed interest of $1,641
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on the deficiency and additions to tax.   However, the IRS abated

the additions to tax and the related interest of $592.24.

     On May 16, 2007, petitioner filed with the IRS a Form 843,

Claim for Refund and Request for Abatement, requesting abatement

of all interest assessed.   The IRS denied petitioner’s request,

stating that no error or delay had occurred on the IRS’s part.

Petitioner appealed the denial to the Appeals Office.   On

November 7, 2007, the Appeals Office sent to petitioner a Full

Disallowance--Final Determination letter denying petitioner’s

claim for abatement of the remaining interest.    Petitioner paid

in full the deficiency of $2,140 and the associated interest of

$1,097.91 as of April 15, 2008.

                              OPINION

     Petitioner argues that, where the IRS took over 6 years to

contact him about his deficiency, he should not be charged any

interest.   Thus, he contends, the Appeals officer’s failure to

abate the interest was an abuse of discretion.    Petitioner seeks

judicial review under section 6404(h)(1) and Rule 280(b).

     Respondent argues that there were no unreasonable errors or

delays on the part of the IRS that would entitle petitioner to

abatement of interest under section 6404(e)(1).   Respondent

further argues that, because petitioner is not entitled to
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abatement of interest, there could not have been an abuse of

discretion in denying petitioner’s request.

     The Court may order abatement if the Commissioner abused his

discretion by failing to abate interest in his final

determination.   Sec. 6404(h)(1); see Hinck v. United States, 

, 506 (2007) (holding that the Tax Court provides the

exclusive forum for judicial review of the IRS’s refusal to abate

interest).   In order to prevail, a taxpayer must prove that the

Commissioner exercised his discretion arbitrarily, capriciously,

or without sound basis in fact or law.   See Woodral v.

Commissioner, 

, 23 (1999).

     Section 6404(e)(1) provides in pertinent part:

          (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 officer or employee being
          erroneous or dilatory in performing a ministerial
          or managerial act,

     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. [Emphasis added.]
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Section 6404(e) requires the taxpayer to identify a direct link

between the error or delay and the specific period during which

interest accrued.    See Guerrero v. Commissioner, T.C. Memo. 2006-

201.

       Petitioner argues that the passage of time, from the due

date of petitioner’s 1999 return on April 15, 2000, to when the

IRS sent the notice of deficiency on July 17, 2006, implies an

unreasonable error or delay because it exceeds the normal period

of limitations.    There is no applicable limitation, however, when

a taxpayer fails to file a return.      Sec. 6501(c)(3).   In any

event, the time prior to July 17, 2006, is not counted under

section 6404(e), which exclusively pertains to the abatement of

interest after the IRS has contacted a taxpayer.      See Krugman v.

Commissioner, 

, 239 (1999).      The only interest that

can be abated in this case would be the interest that accrued

after July 17, 2006 (when the IRS contacted petitioner), and

until the liability was paid in full on April 15, 2008.       With

respect to this latter period, however, petitioner does not

identify any unreasonable error or delay caused by a ministerial

or managerial act by the IRS.    Petitioner therefore fails to show

a direct link between the appropriate period of interest accrual

and any unreasonable error or delay caused by the IRS during that

period.
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     Taking into account all the facts and circumstances of this

case, we hold that the Appeals officer did not abuse his

discretion in denying petitioner’s request for abatement of

interest.   In reaching our decision, we have considered all

arguments made, and, to the extent not mentioned, we conclude

that they are irrelevant, moot, or without merit.

     To reflect the foregoing,


                                         Decision will be entered for

                                   respondent.