Estate of Edward P. Roski, Sr., Deceased, Edward P. Roski, Jr., Executor - Page 24
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B. The Commissioner’s Oscillating Position Is Entitled to
At the outset, we are wary of the Commissioner’s position
because of the oscillations in his interpretation of the bond
requirement demonstrated by his published guidance over the
years. Although the published guidance discussed earlier cannot
be cited as precedent under section 6110(k)(3), it highlights the
Commissioner’s confusion about the proper interpretation of the
bond requirement. The Commissioner’s current interpretation,
being in conflict with his initial position (and his penultimate
position), is entitled to considerably less deference. Watt v.
Alaska, 451 U.S. 259, 273 (1981) (citing Gen. Elec. Co. v.
Gilbert, 429 U.S. 125, 143 (1976)).
C. The Plain Language of Sections 6166 and 6165 Imposes a
Discretion That Respondent Failed To Exercise
The statutory scheme of sections 6166 and 6165 reveals that
the bond requirement is discretionary and was not intended to be
mandatory. The substantive requirements of section 6166 are
confined to section 6166(a) and (g). None of these requirements
include securing a bond or a special lien under section 6324A.
Rather than making security a substantive requirement, Congress
incorporated the Commissioner’s discretionary authority under
section 6165, which provides that the Secretary may require a
bond. Thus, section 6165 gives the Commissioner discretion to
require a bond for extension of time to pay tax, but it does not
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Last modified: November 10, 2007