Stephen V. Talmage - Page 11

          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            
               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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