United States v. Fior D'Italia, Inc., 536 U.S. 238, 14 (2002)

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Cite as: 536 U. S. 238 (2002)

Opinion of the Court

ployer." Brief for Respondent 9. And it suggests that the IRS intends to use a legal victory here as a "threat," say, to reopen back tax years, in order to require restaurant owners "to force" their "employees to report" all tips. Id., at 14. Why else, asks Fior D'Italia, would the IRS bring this case? After all, given the dollar for dollar FICA/income tax setoff, this case may not even produce revenue for the Government.

Fior D'Italia's "abuse of power" argument, however, does not constitute a ground for holding unlawful the IRS' use of aggregate estimates. Even if we assume, for argument's sake, that an improper motive could render unlawful the use of a statutorily permissible enforcement method in certain circumstances, cf. United States v. Powell, 379 U. S. 48, 58 (1964), we note that Fior D'Italia has not demonstrated that the IRS has acted illegally in this case. Instead it has presented a general claim to the effect that the aggregate estimation method lends itself to abusive agency action. But we cannot find agency action unreasonable in all cases simply because of a general possibility of abuse—a possibility that exists in respect to many discretionary enforcement powers. Cf. Heckler v. Chaney, 470 U. S. 821, 831 (1985).

The statutes and congressional documents that protect restaurants from onerous monitoring requirements consequently do not support Fior D'Italia's argument that aggregate estimates are statutorily prohibited. For example, the Internal Revenue Service Restructuring and Reform Act prohibits the IRS from "threaten[ing] to audit" restaurants as a means to "coerce" them into policing employee tip reporting, supra, at 250, but Fior D'Italia does not claim that the IRS has violated this statute. Nor, for that matter, has Fior D'Italia presented evidence that this particular litigation would fail to yield revenue to the Government (due to the availability of the FICA tax credit), or convincingly explained, even if so, why that fact, while making the case unremunerative, would automatically make it improper. And while other documents show that Congress has expressed


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