Estate of Edward P. Roski, Sr., Deceased, Edward P. Roski, Jr., Executor - Page 16
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Winthrop Towers, 628 F.2d 1028, 1032, 1035 (7th Cir. 1980);
Estate of Gardner v. Commissioner, 82 T.C. 989, 994 (1984)
(citing Dunlop v. Bachowski, 421 U.S. 560, 567 (1975)).
Respondent argues that his determination in this case is not
reviewable because the decision to require a bond or a special
lien is committed to agency discretion by law.5 See 5 U.S.C.
sec. 701(a)(2) (2000). Respondent supports his premise with the
following arguments: (1) Section 7479 limits review to the
eligibility requirements contained in section 6166 itself, which
do not include the requirement of a bond under section 6165; and
(2) even if the Court had jurisdiction to review respondent’s
exercise of discretion to require a bond, section 6165 provides
no standard for the application of respondent’s discretion and
therefore no criteria for the Court to judge whether respondent
has exceeded his authority. We shall address each of
respondent’s arguments individually.
A. Section 7479 Does Not Limit Judicial Review to the
Substantive Requirements of Section 6166
Ironically, respondent argues that we have jurisdiction over
only the eligibility requirements for the section 6166 election
while simultaneously taking the position that the provision of a
bond or a special lien is required for any estate to be eligible
for the election. Even if we ignore this glaring contradiction,
5Respondent concedes that no statute prohibits judicial
review under 5 U.S.C. sec. 701(a)(1) (2000).
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Last modified: November 10, 2007