Frank Petar Contracting, Inc. - Page 13

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          later.  In all likelihood, the Note would only have been retained           
          as a record of the bonding transaction.  Yet, if the Note had               
          been retained as such, it is only reasonable to suppose that                
          other more important records of that transaction would also have            
          been retained, and it seems unlikely that these other records               
          would have been overlooked when the Note was discovered in                  
          preparation for this litigation.  We find further reason for                
          skepticism in Mr. Cunniff’s testimony that he did not consult Mr.           
          Petar regarding the existence of other documents relating to the            
          bonding transaction.  Assuming that the Note was in fact prepared           
          to satisfy bonding requirements, any such documents would                   
          obviously have been useful to refresh their recollection of the             
          bonding transaction and surely they would have discussed any such           
          documents in preparation for trial.                                         
               Third, the witnesses’ account of the Note is difficult to              
          reconcile with their conduct during the audit.  If the Note is              
          genuine, then the only explanation for the failure of Messrs.               
          Cunniff and Mr. Petar to call its existence to the attention of             
          the revenue agent during the audit is, as Mr. Cunniff testified,            
          that they did not at that time realize the significance of the              
          Note in relation to the deductibility of the bonus.  Although the           
          reading material they received from the revenue agent should have           
          alerted them to the Note’s significance, it is conceivable that             
          they did not read it carefully.  However, if they did not become            
          aware of the significance of the Note for tax purposes until                



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