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prior agreement that Dr. Joffe would give Ms. Moore an additional
10 percent of the net proceeds of any sale of the LLC, and the
failure to reference interim distributions (in addition to sale
proceeds) could have been an oversight or simply poor
draftsmanship by the doctor. Neither alone nor together are the
two documents inconsistent with the conclusion, supported by both
the assignment and assumption agreement and the LLC’s 1998-2000
distributions to Dr. Joffe, Dr. McKernan, and Ms. Moore
(discussed infra) that, before the end of 1997, those three
individuals agreed to Dr. Joffe’s transfer of an additional 10-
percent LLC membership interest to each of the other two, and
that those transfers were to be effective as of January 1, 1997;
i.e., they would result in a 10-percent increase for Dr. McKernan
and Ms. Moore and a 20-percent decrease for Dr. Joffe in their
respective shares of LLC profit (or loss) for the entire year.
Such an agreement could have been finalized at any time during
1997, not necessarily on or before January 1 of that year as
petitioners suggest. We find that the Moore letter and the Joffe
memorandum fail to provide “clear, unequivocal, and decisive”
evidence of mutual mistake.
Nor do the Schedules K-1 attached to the LLC’s 1997-2000
returns, the Kelly correspondence, or the SouthTrust Bank credit
report provide such evidence.
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Last modified: November 10, 2007