- 27 - that all cans were sold over the bar, for on-emisesconsumption.22 Petitioner contends that during the time preceding April 1990, he sold canned beer exclusively to go in six-packs for $3.25 each ($4 each for premium brands such as Michelob and Molson).23 Petitioner, however, acknowledges that over-the-bar as well as to-go canned beer sales occurred during the period after April 1990.24 Respondent argues that the only evidence presented in support of petitioner's position is petitioner's uncorroborated, self-serving testimony. Respondent first points out that Ms. 22 The parties also disagree as to the proper discretionary use allowance to be applied in the determination of gross receipts from the sale of canned beer. Each party stipulated the other's computations on the basis of the respective party's own discretionary use contention. Respondent contends that the proper discretionary use allowance for over-the-bar sales of canned beer is 8.3 percent. Petitioner contends that a 15- percent discretionary use allowance for over-the-bar canned beer sales is proper and correct. Petitioner, however, abandoned that position on brief, as he presented no argument concerning the proper discretionary use allowance for canned beer sales and the record contains no evidence of the proper allowance. Accordingly, we conclude that petitioner has conceded that the proper discretionary use allowance for over-the-bar canned beer sales is 8.3 percent. Rybak v. Commissioner, 91 T.C. 524, 566 (1988). Neither party asserts that a discretionary use allowance would be proper for to-go sales of canned beer. Accordingly, we do not apply a discretionary use allowance in deciding petitioner's gross receipts from to-go sales of canned beer. 23 Petitioner indicated that premium brands generally did not sell well. 24 Petitioner testified that he switched to cans from bottles during 1990 because the cans were cheaper, easier to handle, and took up less space in the storeroom. Additionally, petitioner viewed the cans as a safer alternative to bottles, which had been known to cause injury when thrown by rowdy patrons.Page: Previous 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 Next
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