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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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