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Commissioner, 788 F.2d 33, 35 (D.C. Cir. 1986), affg. on other
grounds an Order of this Court, Justice (then Judge) Scalia
expressed the view that the mere weakness of a party's arguments
can never by itself justify dismissal for failure to prosecute--
"The substantive merits of a claim are of course irrelevant to
the propriety of a dismissal for failure to prosecute"--and
affirmed our order to dismiss for failure to prosecute not
because the taxpayer's arguments were frivolous but because he
had disobeyed orders and failed to appear at trial.
The Court of Appeals for the Fourth Circuit, to which appeal
in this case would lie, requires the trial court to consider four
factors before dismissing a case for failure to prosecute: (1)
The plaintiff's degree of personal responsibility; (2) the amount
of prejudice caused the opposing party; (3) the presence of a
drawn out history of deliberately proceeding in a dilatory
fashion; and (4) the effectiveness of sanctions less drastic than
dismissal. Hillig v. Commissioner, 916 F.2d at 174. We have
said that we will not dismiss a case if a lesser sanction is
available and appropriate. Freedson v. Commissioner, 67 T.C. at
937.
Some of the factors in the Fourth Circuit test militate in
favor of dismissing this case. Petitioner is personally
responsible for a series of actions that have dragged out and
delayed the case substantially. Had petitioner not asserted in
his petition that he was entitled to deduct business expenses and
miscellaneous itemized deductions that he could substantiate, we
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