- 9 - fails properly to prosecute his or her case, fails to comply with the Court’s Rules or any order of the Court, or for other cause which the Court deems sufficient. Dismissal of a case is a sanction resting in the discretion of the trial court. See Levy v. Commissioner, 87 T.C. 794, 803 (1986). In determining whether dismissal under Rule 123(b) is appropriate, the Court must balance two potentially rival considerations: “the policy in favor of having cases heard on their merits with the policy in favor of avoiding harassment to the defending party arising from unjustifiable delay.” Freedson v. Commissioner, 67 T.C. 931, 935 (1977), affd. 565 F.2d 954 (5th Cir. 1978). Given the varied circumstances faced by petitioners in this case and their subsequent divorce, we analyze the motion to dismiss separately with respect to each. Motion To Dismiss as to Petitioner Sherry L. Luca The balance of the considerations in this case inclines against Ms. Luca. Having executed the petition which commenced this proceeding, she was clearly aware of the existence of the present litigation. Signing the petition, however, appears to have been Ms. Luca’s only effort to prosecute the matter. Although represented by counsel, Ms. Luca not only failed to provide her counsel with information necessary for him to prosecute the case on her behalf; she failed to correspond with him whatsoever. She further neglected to provide her counselPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
Last modified: May 25, 2011