-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 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, wePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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