Theodore Langworthy, Jr. - Page 27

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          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.                         



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