Frank A. Luca and Sherry L. Luca - Page 9

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          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 counsel                 

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