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allowance applied by respondent in the calculation of gross
receipts from the sale of bottled beer is unreasonably low,
especially considering that respondent used a 17-percent
discretionary use allowance for sales of draft beer which, unlike
bottled beer, does not involve breakage. Petitioner asserts that
he should be afforded a 15-percent allowance for discretionary
use in computing gross receipts from the sale of bottled beer.
In support of his contention, petitioner offers (1) his
testimony that he gave away free beers to patrons and band
members and (2) Ms. Stacey's testimony that she also gave away
free drinks at the Bullfrog.28 This testimony, however, does not
persuade us that 15 percent is the proper discretionary use
allowance. Although petitioner testified that he gave one
complimentary beer for every four or five beers purchased, he
also indicated that he favored certain patrons with free drinks.
Accordingly, petitioner's testimony indicates that he did not
employ a consistent policy of providing complimentary drinks at
the Bullfrog. Given in response to questioning concerning liquor
sales, Ms. Stacey's testimony regarding free drinks of liquor
likewise sheds no light on the appropriate discretionary use
allowance for bottled beer sales. We conclude that 8.3 percent
28 Ms. Stacey indicated that she generally gave patrons free
drinks upon the purchase of three or four rounds. She also
testified that she usually dispensed the last shot in each bottle
of liquor free of charge.
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