Barry E. Moore and Deborah E. Moore - Page 43




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          a 68-percent membership interest as of January 1, 1997.  See                
          Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165            
          (1946) (“the failure of a party to introduce evidence * * *                 
          which, if true, would be favorable to him, gives rise to the                
          presumption that if produced it would be unfavorable”), affd. 162           
          F.2d 513 (10th Cir. 1947).                                                  
               Neither the Moore letter nor the Joffe memorandum provides             
          convincing evidence that a mutual mistake resulted in the                   
          assignment and assumption agreement’s recitation of an effective            
          date of January 1, 1997, for the transfer of interests in the LLC           
          by Dr. Joffe to Ms. Moore and Dr. McKernan.  Both documents                 
          postdate January 1, 1997.  Ms. Moore testified that the Moore               
          letter related to a plan that was never implemented to distribute           
          percentages to other physicians that had been loyal and faithful            
          to the LLC.  The letter is confusing in that it speaks in terms             
          of percentage distributions “should the * * * [LLC] be sold or              
          distributions be made”.  (Emphasis added.)  The letter does not             
          answer the question:  Distributions of what?  Sale proceeds?                
          Annual profits?  The percentages are identified as percentages of           
          net profit.  The letter was written to a lawyer asking for advice           
          on how to accomplish a change to the status quo.  Ms. Moore may             
          have in part been concerned with keeping the 10-percent interest            
          in profits that Dr. Joffe testified she was to get beginning in             
          1997.  The Joffe memorandum can be interpreted as confirming a              







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