Stephen V. Talmage - Page 12

          would long ago have granted a motion by respondent to dismiss the           
          case for failure to state a claim.  However, petitioner's                   
          continued refusal to bring forward any evidence to support those            
          deductions, culminating in his statement at the calendar call               
          that he was conceding them in the interests of pressing his                 
          section 83 claim on appeal, leads us to conclude that they were             
          either totally unfounded or asserted merely for purposes of                 
          delay.  As a result, respondent has been put to considerable                
          trouble and expense.  In addition, petitioner has repeatedly                
          acted in derogation of the pretrial standing order and other                
          orders of this Court.  All of this would lead us to conclude that           
          petitioner should be sanctioned.  However, upon consideration of            
          the fourth factor (the sufficiency of lesser sanctions) the                 
          preference expressed by the Court of Appeals for the Fourth                 
          Circuit in Hillig v. Commissioner, 916 F.2d at 174-175, for                 
          monetary sanctions rather than dismissal leads us to choose a               
          monetary sanction, for which respondent has also moved, rather              
          than dismissal.  We discuss the monetary sanction infra.                    
               At the pretrial calendar call, we stated that we would treat           
          petitioner's Statement of Legal Claims as a motion for summary              
          judgment.  In addition, by our order of October 13, 1995, the               
          facts set forth in respondent's proposed stipulation of facts               
          were deemed established for purposes of this case pursuant to               
          Rule 91(f).  Inasmuch as petitioner wishes to press his "legal"             
          arguments, as opposed to the assignments of factual error                   

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