Theodore Langworthy, Jr. - Page 32

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          is a reasonable allowance for discretionary use.  See, e.g.,                
          Jurkiewicz v. Commissioner, T.C. Memo. 1955-318 (5-percent                  
          reduction for spillage, waste, and gratuities sustained).                   
          Consequently, we find that petitioner's gross receipts from the             
          sale of bottled beer are as follows:                                        
                                        Bottled Beer                                  
                         Year           Gross Receipts1                               
                         1987           $135,011.80                                   
                         1988           116,740.80                                    
                         1989           118,071.80                                    
                         1990           62,920.00                                     
               1See Table III in the attached appendix.                               
                    4.   Wine Sales                                                   
               Petitioner contends that respondent erred by calculating               
          gross receipts from the sale of wine on the assumption that each            
          glass of wine sold contained only 4 ounces of wine.  To the                 
          contrary, petitioner asserts that each glass of wine sold                   
          contained 6 ounces of wine.29                                               
               Respondent seeks to use an apparent inconsistency in                   
          petitioner's testimony to impugn petitioner's claim regarding the           

          29   Petitioner and respondent also disagree on the proper                  
          discretionary use percentage to be applied in the calculation of            
          gross receipts from the sale of wine.  Petitioner asserts that 15           
          percent is the proper discretionary use allowance for all wine              
          sales.  On brief, and in respondent's stipulated calculations,              
          however, respondent contends that the proper discretionary use              
          allowance for wine sales is 20 percent for each .750-liter                  
          bottle, 1.5-liter bottle, and 3-liter bottle and 40 percent for             
          each liter bottle.  We conclude that respondent has conceded that           
          the proper discretionary use allowance for wine sales is 20                 
          percent or 40 percent, for the respective size bottle.                      





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