- 9 -
111, 115 (1933). Failure to produce evidence, in support of an
issue of fact as to which a party has the burden of proof and
which has not been conceded by such party’s adversary, may be a
ground for deciding the issue against that party. Rule 149(b).
Furthermore, section 6001 and section 1.6001-1(a), Income Tax
Regs., require that the taxpayer keep permanent books of account
or records that are sufficient to establish the amount of
deductions claimed on the taxpayer’s returns.
Mr. Beery testified at trial that a certified public
accountant examined the financial status of his grain business in
1975, in conjunction with his Kansas bankruptcy, and estimated an
NOL for that year of $1,517,999.8 Mr. Beery further testified
that this figure is a matter of public record since a transcript
of the accountant’s testimony was made during the Kansas
8The alleged NOL of $1,517,999 claimed by Mr. Beery at trial
is unproven and was merely a rough estimate as outlined in In re
Beery, 680 F.2d 705, 716-717 (10th Cir. 1982):
In 1975 the evidence is much less precise. The
accountants could not determine the amount of Beery’s
grain sales, but estimated that they were $293,838.
Using this number, as well as some other assumptions,
Beery had an estimated net loss from farming of
$23,000. Making similar assumptions with respect to
Brownville Grain and commodities pursuits, the
accountants estimated that Beery had a net loss from
these ventures of $1,517,999. In making these
estimates the accountants assumed that all claims filed
against Beery in the bankruptcy court, and all
receivables to which the estate thought it was entitled
were valid. Thus, the net income figures for 1975 must
be considered as rough estimates. [Citations and fn.
refs. omitted.]
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