- 23 - IV. Respondent’s Denial of the Section 6166 Election on the Basis of Bright-Line Bond Requirement Is an Abuse of Discretion A. Standard of Review When reviewing an agency action, a reviewing court shall hold unlawful and set aside any agency action that is arbitrary, capricious, or an abuse of discretion. See Keene v. Commissioner, 121 T.C. 8, 17-18 (2003) (“when a taxpayer’s underlying tax liability is not properly at issue in the administrative hearing, we review the Appeals Office’s determination for abuse of discretion”) (citing Lunsford v. Commissioner, 117 T.C. 183, 185 (2001)). Respondent argues that we do not have abuse of discretion review under section 6166 because section 7479 also gives us jurisdiction over eligibility for the section 6166 election in the case of a “failure by the Secretary to make a determination”. Sec. 7479(a). Thus, respondent argues that Congress did not intend an abuse of discretion standard. Contrary to respondent’s assertion, abuse of discretion has been found in situations where the Commissioner’s refusal to exercise discretion is arbitrary, capricious, or unreasonable. See Greene v. Commissioner, T.C. Memo. 1997-296 (citing Mailman v. Commissioner, 91 T.C. 1079 (1988), Estate of Gardner v. Commissioner, supra, and Haught v. Commissioner, T.C. Memo. 1993-58).Page: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: November 10, 2007