Estate of Edward P. Roski, Sr., Deceased, Edward P. Roski, Jr., Executor - Page 25

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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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