KENCO Restaurants, Inc. et al. - Page 13

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          owner-managers' service hours) is reasonable, they have not                 
          directed any of their argument to proving that respondent's                 
          method produces an arbitrary, capricious, or unreasonable result,           
          to wit, that gross sales is not indicative of management and                
          administrative services provided.  Petitioners do, however, make            
          a collateral argument assaulting respondent's method, alleging              
          that Ms. Camper did not take into account certain unusual events            
          that occurred during the years at issue, which required BKK to              
          provide unusual types and amounts of services to the affected               
          purchasing members.3  Ms. Camper testified that she considered              
          allocation methodologies based on both hours and gross sales.               
          Although she admitted that the "top" method would have been based           
          on hours or time spent, she was limited by the information                  
          available to her.  The owner-manager’s failure to maintain time             
          logs or other documentation recording the allocation of their               
          time spent among the purchasing members, along with their failure           
          to separately account for the time spent by support staff (whose            
          activities gave rise to 15 percent of payroll-related costs),               
          made it impossible for her to determine the impact of the unusual           
          events on the services provided using an hour-based allocation              


          3    The unusual events include:  (1) A fire at one of Kenco's              
          restaurants that burned the restaurant to the ground on Dec. 7,             
          1989, and the subsequent construction of a new, larger                      
          restaurant, (2) the owners razed Tiffin Realty's only restaurant            
          and rebuilt a new facility in 1990, (3) the owners remodeled                
          Bowling Green's only restaurant and expanded the dining room of             
          K-K's restaurant located on Trenton Ave. in 1991, and (4) Bryan             
          was incorporated on June 3, 1992, and Bryan's restaurant opened             
          in Oct. 1992.                                                               


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