- 9 -
not available to the public until after October 1993. Mead's
representative also testified that based on the design of the
cover, the earliest Exhibit I would have been available for
retail sale was the second half of 1991. Due to the
noncontemporaneous nature of these 2 notebooks, petitioner did
not "rely" on Exhibits J and I as original records.
The handwriting of different persons, including
petitioner's, appears in Exhibits J and I. Petitioner guessed
that these notebooks were copied from the originals, but she
could not recall why they were recopied or when they were
recopied. She also could not recall when she rewrote her
portion. When further queried about the 2 notebooks, petitioner
asserted they may have been recopied because the notebooks "could
have been torn." Additionally, she claimed that "We had a couple
of leaks in the building, because the restaurant is underneath a
building, and if somebody had them in the locker, they could have
gotten wet and that's why we'd have to rewrite them."
Though only Exhibits J and I were clearly shown to be
noncontemporaneous, we do not accept the notebooks for the years
in issue as accurate and contemporaneous records of petitioner's
tip income. Petitioner did not explain the discrepancies between
the amounts reported on petitioner's alleged personal records,
the yellow sheets, and the amounts recorded in the notebooks.
Moreover, respondent's audit of the notebooks reveals that the
total of the charged and cash tips reflected in the notebooks for
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