- 43 - 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 aPage: Previous 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 NextLast modified: November 10, 2007