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make it mandatory. Implicit in this grant of discretion is a
statutory obligation to exercise discretion. Respondent,
however, has not exercised discretion in spite of the fact that
he concedes in his memorandum that requiring a bond under section
6165 is “unquestionably a discretionary act that could only be
subject to an abuse of discretion review.” See also CCA
200027046 (Apr. 26, 2000) (“Although the Service can require a
section 6165 bond or accept a section 6324A lien agreement, such
action is discretionary and not a statutory or regulatory
requirement of section 6166.”).8
The notice of determination states that the estate failed to
demonstrate why respondent should exercise his discretion and
waive the bond requirement. Section 6165 does not give the
Commissioner the authority to waive a bond requirement--it gives
the Commissioner discretion to require a bond. This distinction
is elucidated by the legislative history, which states that “the
Internal Revenue Service may, if it deems it necessary, require
the executor to furnish a bond”. S. Rept. 94-938 (Part 2), at 17
(1976), 1976-3 C.B. (Vol. 3) 643, 659. Therefore, it is evident
that Congress envisioned the furnishing of a bond to be a
discretionary requirement that the Commissioner may impose in
certain cases, and did not intend it to be a universal
8We are merely citing this Chief Counsel Advice as evidence
of respondent’s position. See Thurman v. Commissioner, T.C.
Memo. 1998-233.
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