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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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