Estate of Edward P. Roski, Sr., Deceased, Edward P. Roski, Jr., Executor - Page 29

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          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                    
               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.                                         

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