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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
issued.
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Last modified: November 10, 2007