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Subsequently, on October 23, 2000, petitioner filed a motion
to dismiss on the ground that petitioner wished to resolve the
underlying controversies by an “audit.” That motion was denied.
See sec. 7459(d); Johnson v. Commissioner, 116 T.C. ___ (2001)
(slip op. at 11). The Court contacted petitioner and told him
that he must appear at the scheduled trial date on October 25,
2000.
When this case was called for trial on October 25, 2000,
petitioner did not appear. Respondent filed a motion to dismiss
for failure to properly prosecute and made an oral motion to
impose a section 6673 penalty.
Discussion
Respondent’s motion to dismiss for failure to properly
prosecute falls under Rule 123. A Rule 123(b) dismissal, as a
sanction against petitioner, is available as to those issues for
which petitioner bears the burden of proof. A Rule 123(a)
default would be the proper sanction against petitioner as to
those issues for which respondent bears the burden of proof. See
Smith v. Commissioner, 926 F.2d 1470 (6th Cir. 1991), affg. 91
T.C. 1049 (1988). We shall consider the appropriate sanctions
against petitioner in turn.
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