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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Last modified: November 10, 2007