- 22 - 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, thePage: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 NextLast modified: March 27, 2008