- 7 -
initial filing. After petitioner failed to appear for trial and
respondent filed a motion to dismiss for lack of prosecution, we
allowed petitioner 30 days after the scheduled trial date to
respond to respondent’s motion. Petitioner failed to do so.7
Instead, petitioner waited until after we granted respondent’s
motion to dismiss with respect to the deficiencies and, as with
his request for continuance, on the day before his deadline for
filing a brief regarding the issue of fraud, he submitted a
letter denying fraud and requesting that a trial date be set. In
these circumstances, we conclude that petitioner’s belated
request for a trial is little more than a stalling tactic,
designed to delay a disposition of this case.
Rule 149(a) provides that, where there is an unexcused
absence of a party when a case is called for trial, the case “may
be dismissed for failure properly to prosecute, or the trial may
proceed and the case be regarded as submitted on the part of the
absent party or parties.” Dismissal of a case for failure to
properly prosecute is a sanction that rests with the discretion
of the Court. See Rule 123(b); Harper v. Commissioner, 99 T.C.
533, 540 (1992); Levy v. Commissioner, 87 T.C. 794, 803 (1986);
see also Daniels v. Brennan, 887 F.2d 783, 785-789 (7th Cir.
7 We note that a response to the motion to dismiss would
have been an opportunity for petitioner to provide any further
explanation that he wished to make of his failure to appear for
trial. However, petitioner ignored our order to respond.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011