5
On November 12, 1996, petitioner filed a motion to vacate
the dismissal. In the motion, petitioner requested an additional
30 days, until December 7, 1996, in which to file a memorandum in
support of the motion. Petitioner's memorandum was received and
filed by the Court on December 23, 1996, as "Supplement to Motion
to Vacate 11-5-96 Order".
Respondent filed a notice of objection to petitioner's
motion. A hearing was held on petitioner's motion on April 17,
1997, in Chicago, Illinois.
Rule 123(c) provides the procedure for setting aside a
dismissal. Ward v. Commissioner, 92 T.C. 949, 952 (1989), revd.
on other grounds 907 F.2d 517 (5th Cir. 1990). Under Rule
123(c), the Court may set aside a dismissal, "For reasons deemed
sufficient by the Court and upon motion expeditiously made". The
granting of a motion under Rule 123(c) is within the discretion
of the Court. Ward v. Commissioner, supra; Kraasch v.
Commissioner, 70 T.C. 623, 626 (1978).
Petitioner's motion was expeditiously made as it was filed 7
days after respondent's motion was granted. Petitioner's stated
reason for not filing a timely objection to respondent's motion
was: "Due to other litigation commitments, the complexity of the
matter under appeal and the prior personal commitments of counsel
for Petitioner, counsel was not able to file the Notice of
Objection on time." We do not believe this to be a sufficient
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