Janet Kline - Page 7

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                  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)).]                                                    







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