- 7 - Dismissal of a case is a sanction resting in the sole discretion of the trial court. Harper v. Commissioner, 99 T.C. 533, 540 (1992). Furthermore-- 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, or counsel on petitioner's behalf, 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). [Id.] We look to the legal standards for dismissal under rule 41(b) of the Federal Rules of Civil Procedure as guidance for involuntary dismissals in the Tax Court under our Rule 123(b). Basic Bible Church of America v. Commissioner, 86 T.C. 110, 113 (1986). The Court of Appeals for the Fourth Circuit, to which dismissal of this case would be appealable, has held that a court considering whether to dismiss a case under rule 41(b) of the Federal Rules of Civil Procedure for failing to prosecute must consider the following factors: "(1) the degree of personal responsibility of the plaintiff, (2) the amount of prejudice caused the defendant, (3) the existence of a 'drawn out history of deliberately proceeding in a dilatory fashion' and (4) the existence of sanctions less drastic than dismissal." [Herbert v. Saffell, 877 F.2d 267, 270 (4th Cir. 1989) (quoting Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982)).]Page: Previous 1 2 3 4 5 6 7 8 9 Next
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