1992 Tax Ct. Memo LEXIS 580 | Tax Ct. | 1992
1992 Tax Ct. Memo LEXIS 580">*580 On June 14, 1990, a decision was entered in accordance with stipulations agreed to by the parties. The decision became final on Sept. 12, 1990. Petitioners subsequently filed a Motion to Redetermine Interest on the Deficiency (T.C. Rule 261) and to Abate Interest and to Challenge Jurisdiction Over Partnership Items requesting: (1) A redetermination of interest on the deficiency in accordance with
MEMORANDUM OPINION
WHITAKER,
On October 22, 1988, and on December 2, 1988, petitioners Asciutto and petitioners Bruni, respectively, executed Forms 906, Closing Agreement1992 Tax Ct. Memo LEXIS 580">*582 on Final Determination Covering Specific Matters, determining their distributive shares of income, gain, loss, deductions, and credits from Camel Fuel & Investment Company. On February 8, 1990, counsel for petitioners executed a stipulation setting forth petitioners Asciutto's income tax liability for the taxable year 1979, and petitioners Bruni's income tax liability for the taxable years 1979 and 1980. On June 14, 1990, a decision was entered in accordance with the income tax deficiencies stipulated by the parties. The decision became final on September 12, 1990.
On August 23, 1991, petitioners Asciutto executed a Form 843, Claim for Refund and Request for Abatement, requesting an abatement of interest in the amount of $ 17,434.24 The explanation offered for the requested abatement was respondent's asserted error and delay in performing ministerial acts relating to the resolution of this case. On September 16, 1991, petitioners timely filed a Motion to Redetermine Interest on the Deficiency (T.C. Rule 261) and to Abate Interest and to Challenge Jurisdiction Over Partnership Items (the Motion). On January 10, 1992, respondent filed a Notice of Objection to the Motion. As of1992 Tax Ct. Memo LEXIS 580">*583 September 16, 1991, neither petitioners Asciutto nor petitioners Bruni had paid the entire amount of the deficiency plus interest claimed by respondent for the taxable year ending December 31, 1979; petitioners Bruni, however, had paid the entire amount of the deficiency plus interest claimed by respondent for the taxable year ending December 31, 1980. 1
Pursuant to the Motion, petitioners request: (1) A redetermination of interest on the deficiency in accordance with
Pursuant to
As of September 16, 1991, neither petitioners Asciutto nor petitioners Bruni had paid the entire amount of the deficiency plus interest claimed by the Secretary for the taxable year ending December 31, 1979. Petitioners contend, however, that payment of the entire amount of the deficiency plus interest is not a prerequisite to a redetermination of interest. In support of their contention, petitioners assert that the reference in
In the alternative, petitioners Asciutto contend that payment of the entire amount of the deficiency plus interest will jeopardize their claim for abatement of interest filed pursuant to
1992 Tax Ct. Memo LEXIS 580">*589 As of September 16, 1991, petitioners Bruni had paid the entire amount of the deficiency plus interest claimed by the Secretary for the taxable year ending December 31, 1980. Petitioners Bruni contend that interest on the deficiency should be abated during the pendency of a criminal investigation and trial relating to the promoters of Camel Fuel & Investment Company. In effect, petitioners Bruni are attempting to accomplish judicially through
Pursuant to
Independent of petitioners' request for a redetermination of interest filed pursuant to Rule 261, petitioners cite
Finally, petitioners contend that the period of limitations upon assessment applicable to their distributive shares of partnership items from Camel Fuel & Investment Company had expired prior to the issuance of the notices of deficiency. The contention that the period of limitations upon assessment had expired is an affirmative defense which must be specifically pleaded.
In accordance*594 with the holdings set forth above, petitioners' motion will be denied.
Footnotes
1. On Feb. 3, 1992, and on June 24, 1992, petitioners Bruni and petitioners Asciutto, respectively, paid the balance due on the deficiency plus interest claimed by respondent for the taxable year ending Dec. 31, 1979.↩
2. Unless otherwise noted, all Rule references are to the Tax Court Rules of Practice and Procedure, and all section references are to the Internal Revenue Code of 1954 for the years in issue. ↩
3. Petitioners' request for an abatement is premised upon respondent's asserted error and delay in performing ministerial acts; it is
sec. 6404(e)(1) -- and notsec. 6404(e)(2) -- which authorizes the abatement of interest as a consequence of ministerial acts. Thus, petitioners' general references tosec. 6404(e) will be deemed to refer tosec. 6404(e)(1)↩ .4. Rule 261 sets forth the procedures for initiating a proceeding under
sec. 7481(c)↩ .5. Petitioners Asciutto assert the possible applicability of
sec. 6404(a) andsec. 6404(d) to their claim for abatement.Sec. 6404(a) is inapplicable by virtue ofsec. 6404(b) , which prohibits the filing of a claim for abatement with respect to income taxes.Sec. 6404(d) applies to returns prepared by an officer or employee of the Internal Revenue Service acting in his official capacity to provide assistance to taxpayers in the preparation of income tax returns. Petitioners Asciutto's 1979 income tax return was not prepared by an officer or employee of the Internal Revenue Service. Consequently, neithersec. 6404(a) norsec. 6404(d)↩ is relevant to petitioners Asciutto's claim for abatement.