Estate of Edward P. Roski, Sr., Deceased, Edward P. Roski, Jr., Executor - Page 30

                                       - 30 -                                         
          default rate in collection.  We agree that respondent should be             
          able to consider factors such as administrative convenience and             
          revenue collection.  However, considering these factors                     
          exclusively precludes any exercise of discretion in a particular            
          case, which is what the Court of Appeals for the Ninth Circuit              
          eschewed in Asimakopoulos.                                                  
          V.   Conclusion                                                             
               We have found that respondent has arbitrarily failed to                
          exercise his discretion and may not impose a bright-line bond               
          requirement.  Therefore, for the above reasons, we will deny                
          respondent’s motion for summary judgment.  However, we will not             
          adjudicate the merits of the dispute at this juncture as the                
          estate requests in its cross-motion for summary judgment.  The              
          record does not contain sufficient facts for us to decide the               
          merits of the estate’s assertion that furnishing security is not            
          necessary in this case.  The uncontested facts do not allow us to           
          resolve the matter in favor of the estate.  Therefore, we shall             
          also deny the estate’s cross-motion for summary judgment to the             
          extent that it seeks a final disposition of the matter.                     
               To reflect the foregoing,                                              

                                             An appropriate order will be             

Page:  Previous  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30

Last modified: November 10, 2007