Joyce E. & Jerome G. Beery - Page 9

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          111, 115 (1933).  Failure to produce evidence, in support of an             
          issue of fact as to which a party has the burden of proof and               
          which has not been conceded by such party’s adversary, may be a             
          ground for deciding the issue against that party.  Rule 149(b).             
          Furthermore, section 6001 and section 1.6001-1(a), Income Tax               
          Regs., require that the taxpayer keep permanent books of account            
          or records that are sufficient to establish the amount of                   
          deductions claimed on the taxpayer’s returns.                               
               Mr. Beery testified at trial that a certified public                   
          accountant examined the financial status of his grain business in           
          1975, in conjunction with his Kansas bankruptcy, and estimated an           
          NOL for that year of $1,517,999.8  Mr. Beery further testified              
          that this figure is a matter of public record since a transcript            
          of the accountant’s testimony was made during the Kansas                    


               8The alleged NOL of $1,517,999 claimed by Mr. Beery at trial           
          is unproven and was merely a rough estimate as outlined in In re            
          Beery, 680 F.2d 705, 716-717 (10th Cir. 1982):                              
               In 1975 the evidence is much less precise.  The                        
               accountants could not determine the amount of Beery’s                  
               grain sales, but estimated that they were $293,838.                    
               Using this number, as well as some other assumptions,                  
               Beery had an estimated net loss from farming of                        
               $23,000.  Making similar assumptions with respect to                   
               Brownville Grain and commodities pursuits, the                         
               accountants estimated that Beery had a net loss from                   
               these ventures of $1,517,999.  In making these                         
               estimates the accountants assumed that all claims filed                
               against Beery in the bankruptcy court, and all                         
               receivables to which the estate thought it was entitled                
               were valid.  Thus, the net income figures for 1975 must                
               be considered as rough estimates.  [Citations and fn.                  
               refs. omitted.]                                                        




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