Walter A. Barniskis and Mary Sue Barniskis - Page 14

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               The monthly statements generated by TMC during 1991 and 1992           
          reveal that both or one of the floors of petitioners' unit were             
          used by 238 different guests during 1991 and by 227 different               
          guests during 1992.  TMC's maintenance records for petitioners'             
          unit show that petitioners were separately charged for 18 hours             
          of labor during 1991 and 41 hours of labor during 1992.  These              
          charges were in addition to the 45-percent gross rental fee paid            
          by petitioners under the management contract.  The maintenance              
          records do not reflect the maintenance staff's work on the                  
          facilities and grounds outside of petitioners' unit.                        
               Based on the record, we find that petitioners have failed to           
          prove that they participated in the activity of renting their               
          unit more than TMC's employees during the years in issue.  The              
          record contains only Mr. Rysdahl's biased testimony about the               
          number of hours TMC's employees devoted to petitioners' unit,               
          which we do not rely upon without corroboration.4  It is clear,             
          however, that the front desk staff checked in and out over 200 of           
          petitioners' guests each year.  In addition, the housekeeping               
          staff inspected and cleaned petitioners' unit after each of their           
          guests checked out.  The frequency with which these services were           
          required convinces us that TMC's employees devoted a substantial            
          amount of time to petitioners' unit.  We are unable to conclude             

          4         Although available to Mr. Rysdahl, TMC's business                 
          records of its employees' work hours and assignments were not               
          made part of the record in this case.                                       

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