- 29 - Commissioner has used his adjudicative capacity to adopt a policy that trumps the discretionary authority granted by section 6165 to require a bond. Although requiring a bond in this case may be reasonable, respondent did not look at the facts of the case. If respondent had exercised his discretion, the result might have been reasonable; however, the means to the end was still arbitrary.9 Respondent’s failure to exercise discretion is grounds to set aside his determination. See Asimakopoulos v. INS, 445 F.2d 1362 (9th Cir. 1971) (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 266-268 (1954)). An agency’s reliance on a standard that prevents the exercise of discretion warrants further proceedings. See id. at 1365. Respondent argues that factors such as the estate's creditworthiness are not the only factors he is able to consider in making his decision. He contends that the difficulties in administering the deferrals that were discussed in the TIGTA report were valid factors for him to consider in the estate’s case. Respondent further argues that there is always risk of default in a debtor-creditor relationship and that IRS collection experience showed a high 9We do not address in this Opinion whether the Commissioner could have exercised his discretion through the promulgation of a regulation. See, e.g., Fook Hong Mak v. INS, 435 F.2d 728, 730 (2d Cir. 1970). Here, he established his bright-line test through insertion in the Internal Revenue Manual without any opportunity for notice and comment.Page: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: November 10, 2007