Theodore Langworthy, Jr. - Page 24

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          because it relies on certain erroneous assumptions.  Each                   
          contested item is addressed separately below.                               
                    1.   Keg Sales                                                    
               Petitioner asserts that respondent's calculation of gross              
          receipts from the sale of draft beer is overstated because it               
          makes no allowance for kegs that were sold for off-premises                 
          consumption.21  Petitioner contends that, during each year in               
          issue, he sold approximately 85 kegs to go at a price of $5 over            
          cost.                                                                       
               In support of his position, petitioner points to his                   
          testimony and that of Ms. Stacey.  Petitioner testified that he             
          sold kegs throughout the calendar year, but that the busiest                
          period for keg sales was from May to October, with sales peaking            
          during the summer months (June, July, and August).  Petitioner              
          indicated that he sold approximately 3 to 3� kegs per week during           
          the peak summer months (June, July, and August), and 2 to 3 kegs            
          per week during the remainder of the busy season (May, September,           
          and October).  Petitioner also testified that he had seven or               

          21   The parties also disagree as to the proper discretionary use           
          allowance to be applied to the sale of keg beer.  Petitioner's              
          stipulated computations assert that a discretionary use allowance           
          of 15 percent should be applied to all over-the-bar keg beer                
          sales.  Respondent's stipulated computations, however, apply a              
          greater discretionary use allowance of 17 percent for all over-             
          the-bar sales of keg beer.  We conclude that respondent's                   
          stipulated calculations concede that 17 percent is the proper               
          discretionary use allowance for over-the-bar sales of keg beer.             
               Neither party asserts that a discretionary use allowance               
          would be proper for to-go sales of kegs.  Accordingly, we do not            
          apply a discretionary use allowance in deciding petitioner's                
          gross receipts from to-go sales of kegs.                                    



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