- 11 -
A. Dismissal With Respect to Issues Where Petitioner Had the
Burden of Proof
Petitioner has the burden of proof with respect to the
determinations contained in the notices of deficiency. See Rule
142(a).
Rule 123(b) provides as follows:
(b) Dismissal: For failure of a petitioner properly to
prosecute or to comply with these Rules or any order of the
Court or for other cause which the Court deems sufficient,
the Court may dismiss a case at any time and enter a
decision against the petitioner. The Court may, for similar
reasons, decide against any party any issue as to which such
party has the burden of proof, and such decision shall be
treated as a dismissal for purposes of paragraphs (c) and
(d) of this Rule.
In Bauer v. Commissioner, 97 F.3d 45 (4th Cir. 1996), the
Court of Appeals for the Fourth Circuit considered the
application of Rule 123(b). Noting that dismissal for failure to
prosecute typically occurs where a party fails to appear at
trial, the court set forth four factors that should be considered
in determining whether to dismiss a case for failure to
prosecute: (1) The plaintiff’s degree of personal
responsibility; (2) the presence of a drawn out history of
deliberately proceeding in a dilatory fashion; (3) the amount of
prejudice caused the defendant; and (4) the effectiveness of
sanctions less drastic than dismissal. See id. at 49.
Petitioner was solely responsible for his attendance at the
October 25, 2000, trial. He was well aware of the trial date by
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: May 25, 2011