Claude E. and Dana L. Salazar - Page 22




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          this provision of the IRM, the Appeals officer was not exercising           
          discretion at all but instead enunciating a bright-line rule for            
          all postdischarge bankruptcy cases where the Commissioner is                
          waiting for a distribution.  See Estate of Roski v. Commissioner,           
          128 T.C. 113 (2007) (holding that by requiring all estates to               
          post a bond to make a section 6166 election regardless of the               
          facts before him, the Commissioner was adopting a bright-line               
          policy that trumped the exercise of his discretion).                        
               Mr. Conte’s use of the IRM was not, however, a de facto                
          enunciation of a bright-line rule that trumped the exercise of              
          discretion.  In evaluating an offer-in-compromise under doubt as            
          to collectibility, the Commissioner must first determine the                
          reasonable collection potential on the amount owed.  Rev. Proc.             
          2003-71, sec. 4.02(2).  In the ordinary circumstance, the                   
          Commissioner calculates the reasonable collection potential by              
          determining the excess of a taxpayer’s assets and future income             
          above certain allowances for basic living expenses.  See Klein v.           
          Commissioner, T.C. Memo. 2007-325.  The guidelines aid the                  
          Commissioner in this endeavor.  Id.; see also, e.g., McDonough v.           
          Commissioner, T.C. Memo. 2006-234; Etkin v. Commissioner, T.C.              
          Memo. 2005-245; Schulman v. Commissioner, T.C. Memo. 2002-129.  A           
          pending bankruptcy petition changes this collection analysis                
          because the taxpayer has surrendered his assets to the bankruptcy           
          court.  Thus, where a taxpayer has filed for bankruptcy, the                







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