Michael F. Lambaiso and Judy D. Lambaiso - Page 13




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               We are unpersuaded by any of petitioners' arguments.6                  
          Petitioners argue that the notice of deficiency was arbitrary               
          because of Revenue Agent Bixler's purported inaccurate conclusions          
          about Classic Pub's business and record keeping.  We disagree.  Not         
          only did petitioners fail to prove that Revenue Agent Bixler's              
          conclusions (which are the basis of respondent's determinations)            
          are arbitrary, but on the basis of the record before us, we are             
          satisfied that they are "reasonable in light of all surrounding             
          facts and circumstances".  See, e.g., Schroeder v. Commissioner, 40         
          T.C. 30, 33 (1963).  We found Revenue Agent Bixler's testimony              
          credible.  We therefore conclude that the reconstruction of Classic         
          Pub's income through the use of the percentage markup method was            
          proper and that the allowance for alcoholic beverages, wine, and            
          beer sold at discount prices was realistic.                                 

               6    We mention two additional arguments made by                       
          petitioners.  First, petitioners contend that they overstated               
          Classic Pub's 1991 and 1992 gross sales (on the Forms 1120S) by             
          erroneously including State sales tax.  Although respondent                 
          acknowledges that, for income tax purposes, State sales tax                 
          should not be includable in gross sales, petitioners have not               
          established that they actually overstated Classic Pub's gross               
          sales by including State sales tax.  Petitioners failed to                  
          reconcile the amounts of State sales tax allegedly included in              
          reported gross sales with the stipulated amounts reflected in               
          Classic Pub's various records.                                              
               Moreover, petitioners posit that two bartenders can pour               
          2,880 shots of liquor during a 2-hour period. In attempting to              
          prove this point, petitioners played a videotape (that they                 
          prepared the night before trial) for the Court, in which two                
          Classic Pub bartenders poured shots of liquor.  However, no                 
          evidence was presented as to how many shots of discounted liquor            
          were actually poured and served on any given night.                         





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