Damages, not proven

Damages were not established in In the Interest of MGG, No. 05-19-00777-CV (Aug. 10, 2020) (mem. op.), when:

“Ms. Gatewood does not dispute that Mr. Gustafson and his employer paid the withheld amounts to the IRS to cover the taxes from the transactions. Nor does she dispute that, if Mr. Gustafson instead paid her 100% of the gross proceeds, she would have to pay those taxes. The only theory of harm Ms. Gatewood advanced in the trial is that, by withholding and paying taxes based on his own tax rate instead of hers, Mr. Gustafson forced her to pay taxes at a higher rate. The proper measure of damages for that harm, however, is the difference between the taxes she would have paid at her purportedly lower tax rate and the amount Mr. Gustafson paid the IRS. To prove Mr. Gustafson harmed her in that manner, Ms. Gatewood had to prove there was a disparity between their tax rates.

Ms. Gatewood refused to turn over her tax records during discovery and chose not to present evidence establishing her tax rate at the trial. The only record evidence directly touching upon Ms. Gatewood’s tax rate is her affirmative response to a hypothetical question asking whether she was ‘at least hopeful’ her tax rate would be lower if she received the money Mr. Gustafson paid the IRS. That conclusory response, premised on Ms. Gatewood’s hope or belief, is insufficient to show Ms. Gatewood’s tax rate would have been lower.” (emphasis added).