- 11 - Dismissal of a case is a sanction that rests with the discretion of the Court. Harper v. Commissioner, 99 T.C. 533, 540 (1992); Levy v. Commissioner, 87 T.C. 794, 803 (1986). In addition-- Dismissal may properly be granted where the party's failure to comply with Rules and orders of the Court is due to "willfulness, bad faith or any fault", as contrasted with mere inadvertence or inability. Societe Internationale v. Rogers, 357 U.S. 197, 212 (1958) (Fed. R. Civ. P. 37(b)(2)); Dusha v. Commissioner, 82 T.C. 592, 599 (1984) (Rule 104(c)). A case may be dismissed for failure properly to prosecute when petitioner * * * fails to appear at trial and does not otherwise participate in the resolution of petitioner's claim. Basic Bible Church v. Commissioner, 86 T.C. 110, 114 (1986). Harper v. Commissioner, supra at 540; see Ritchie v. Commissioner, 72 T.C. 126, 128-129 (1979). As guidance for dismissals under Rule 123(b), we look to the legal standards for dismissals under Rule 41(b) of the Federal Rules of Civil Procedure. Basic Bible Church of America v. Commissioner, 86 T.C. 110, 113 (1986). The Court of Appeals for the Seventh Circuit, to which the dismissal of this case would be appealable, has held that dismissal under Fed. R. Civ. P. 41(b), for failure to prosecute is appropriate "when there is 'a clear record of delay or contumacious behavior,' or when other sanctions have proved unavailing." 3 Penny Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 339 (7th Cir. 1987) (quoting Zaddack v. A.B. Dick Co., 773 F.2d 147, 150 (7th Cir. 1985), and Webber v. Eye Corp., 721 F.2d 1067, 1069 (7th Cir. 1983)).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011