- 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 governmentPage: 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