Michael A. McGrath and Frances Y. McGrath - Page 21




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               consideration for the improvements made.  At that point                
               in time, with the exception of the 6 months rent                       
               credit, the lessor realized the full benefit of the                    
               improvements, while the petitioners realized none.                     
               After Michael testified that he could not “get a competitive           
          bid” for the Improvements because of the lack of a local                    
          contractor who could do the work, he testified:                             
                    And it was important for us in the business to be                 
               established before the Christmas rush, so we agreed to                 
               go ahead and pay the amount over and above, knowing                    
               that we were only going to get consideration for the                   
               total of the $18,000 in rent credit.                                   
                    The additional amount, the additional $92,000, we                 
               just assumed that that was cost of obtaining the site                  
               and possessing the retail space.                                       
               The above-quoted portions of petitioners’ opening and                  
          answering briefs and Michael’s testimony show that petitioners              
          did not intend to treat the entire cost of the Improvements as a            
          rent substitute.  The only consideration for the Improvements, in           
          petitioners’ own words, was a “credit equal to 6 months rent”.              
          Moreover, petitioners’ statement on brief that they “commenced              
          paying full rent, with no additional consideration for the                  
          improvements made” (emphasis added) after the 6-month rent                  
          holiday ended undercuts any contention that the cost of the                 
          Improvements reduced their monthly rent obligations under the               
          Lease after the rent holiday.  Based on the foregoing, we                   
          conclude that petitioners did not intend to treat as a substitute           
          for rent the cost of the Improvements beyond the $18,739 as                 
          stipulated.                                                                 





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