Theodore Langworthy, Jr. - Page 29

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          that he sold six-packs of beer to go during the years in issue.             
          Rather, we would not expect the cash register receipts to include           
          all of petitioner's six-pack sales.  Although Ms. Stacey                    
          testified that she rang up all six-pack sales, she also testified           
          that she sold relatively few six-packs of beer during her shift             
          (i.e., 11 a.m. to 2 p.m.) at the Bullfrog.  Except occasionally,            
          Ms. Stacey did not work weekends and evenings when the bulk of              
          petitioner's six-pack sales took place.  Furthermore, petitioner            
          testified that he failed to ring up all six-pack sales.26                   
               We conclude from the record that petitioner sold six-packs             
          of beer to go for $3.25 each during the years in issue.  We are             
          not persuaded, however, that petitioner sold canned beer                    
          exclusively to go during the period preceding April 1990.                   
          Petitioner testified that he sold 5 to 10 six-packs each night              
          during the weekend (i.e., Friday and Saturday) and 2 to 3 six-              
          packs each night during the remainder of the week (i.e., Sunday             
          through Thursday).  Petitioner purchased 2,928 six-packs during             
          1987, 2,672 six-packs during 1988, and 2,464 six-packs during               
          1989.27  Had all of those six-packs been sold to go, petitioner             

          26   Moreover, we note that there is no analysis accompanying the           
          stipulated sampling of cash register tapes, and respondent                  
          introduced no evidence as to how the sample was selected.  We               
          therefore accord such evidence little weight in our analysis and            
          decision.                                                                   
          27   Total six-packs purchased each year was determined as                  
                                                             (continued...)           






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