Estate of Edward P. Roski, Sr., Deceased, Edward P. Roski, Jr., Executor - Page 2

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                    The estate filed a petition with this Court                       
               requesting relief under sec. 7479, I.R.C.  The estate                  
               alleged that R abused his discretion in denying the                    
               election on the basis of the estate’s failure to                       
               provide a bond.  R moved for summary judgment on the                   
               grounds that this Court does not have jurisdiction to                  
               review R’s determination because the requirement of a                  
               bond or a special lien is not within the scope of the                  
               jurisdiction granted by sec. 7479, I.R.C.  The estate                  
               objected to R’s motion and filed a cross-motion for                    
               summary judgment, asking this Court to find that R has                 
               no authority to impose a bright-line security                          
               requirement and  that if R had exercised his discretion                
               properly, he would not have found a bond or a special                  
               lien to be necessary in this case.                                     
                    Held:  We have jurisdiction under sec. 7479,                      
               I.R.C., to review R’s determination.  Nothing in the                   
               statute or its legislative history restricts our review                
               of R’s denial of the election.  R has failed to rebut                  
               the strong presumption that an action of an                            
               administrative agency is subject to judicial review.                   
                    Held, further, R has no authority to require a                    
               bond or a special lien in every case.  By doing so, R                  
               is making the furnishing of security a substantive                     
               requirement of sec. 6166, I.R.C., which Congress did                   
               not intend.  Further, R’s adoption of a standard that                  
               precludes the exercise of discretion is grounds to set                 
               aside R’s determination.                                               

               Robert T. Carney, for petitioner.                                      
               Scott A. Hovey, for respondent.                                        

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