- 25 - 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.Page: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: November 10, 2007