Anthony G. and Shirley A. Olbres - Page 11

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          the client who was being billed.  The invoices requested that               
          payment be remitted to petitioners' home address.                           
               Ms. Olbres maintained invoice logs (invoice logs) in which             
          she kept track of the invoices that Design Consultants and/or               
          White Star sent to their clients and the amounts that those                 
          clients paid on those invoices.  Design Consultants and/or White            
          Star did not send invoices to Greyhound and/or Mayflower,8 and,             
          consequently, commissions received from those businesses were not           
          recorded in the invoice logs.9  Ms. Olbres brought copies of                
          portions of the invoice logs to petitioners' house.  She periodi-           
          cally destroyed those copies.                                               
               Petitioners opened the Indian Head business savings account            
          around 1983.  They deposited certain of Design Consultants'                 
          and/or White Star's receipts into that account, and Ms. Olbres              
          recorded those deposits in a bank passbook for that account.  Ms.           

          8  The record is not clear about whether Design Consultants                 
          and/or White Star sent invoices to other businesses that provided           
          auxiliary services to the clients of Design Consultants and/or              
          White Star.                                                                 
          9  The parties stipulated that all of the deposits made into the            
          Indian Head business savings account were recorded not only in a            
          bank passbook for that account, but also in the invoice logs.               
          That stipulation insofar as it relates to the invoice logs is               
          contrary to the record in this case.  That record shows, and we             
          have found, that Design Consultants and/or White Star did not               
          send invoices to Greyhound and/or Mayflower and that commissions            
          that were paid to Design Consultants and/or White Star by those             
          businesses were not recorded in the invoice logs.  We may, and we           
          shall in this instance, disregard stipulations between the                  
          parties where the stipulations are clearly contrary to facts                
          established by the record.  See Cal-Maine Foods, Inc. v. Commis-            
          sioner, 93 T.C. at 195.                                                     




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