- 13 -
failure to properly prosecute. Furthermore, consistent with our
finding that dismissal is appropriate under Rule 123(b), we find
against petitioner on all issues as to which petitioner bears the
burden of proof.
B. Default With Respect to Issues Where Respondent Had the
Burden of Production or Burden of Proof
Rule 123(a) provides as follows:
(a) Default: If any party has failed to plead or
otherwise proceed as provided by these Rules or as required
by the Court, then such party may be held in default by the
Court either on motion of another party or on the initiative
of the Court. Thereafter, the Court may enter a decision
against the defaulting party, upon such terms and conditions
as the Court may deem proper, or may impose such sanctions
(see, e.g., Rule 104) as the Court may deem appropriate.
The Court may, in its discretion, conduct hearings to
ascertain whether a default has been committed, to determine
the decision to be entered or the sanctions to be imposed,
or to ascertain the truth of any matter.
In light of petitioner’s conduct in this case, it is
appropriate to consider sanctions under Rule 123(a). Our Rule
123(a) is analogous to rule 55 of the Federal Rules of Civil
Procedure. By analogy to rule 55 of the Federal Rules of Civil
Procedure, the party that bears the burden of proof may be
entitled to entry of decision on default. See Bosurgi v.
Commissioner, 87 T.C. 1403, 1407 (1986). Where a taxpayer has no
demonstrable desire to continue the litigation, and “does not
think well enough of his case to defend it where the government
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