Galedrige Construction, Inc. - Page 17

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          merchandise, the court noted that the taxpayer normally kept an             
          inventory of some 35 caskets, that the caskets were not                     
          necessarily used during the year they were purchased and                    
          occasionally were carried for long periods of time, and that                
          there was a direct relationship between the magnificence of the             
          caskets and the cost of the service.  Id.                                   
          The factors that led the court to conclude in Wilkinson-                    
          Beane, Inc. that the caskets were merchandise are not present in            
          the instant case.  Using the ordinary meaning of the word                   
          "merchandise", we find that the physical properties of the                  
          emulsified asphalt prevent petitioner from holding it for sale.             
          Unlike the taxpayer in Wilkinson-Beane, Inc., who was able to               
          hold a stockpile of 35 caskets through multiple annual accounting           
          periods without diminished utility, the facts in this case show             
          that from the moment it received the emulsified asphalt from the            
          supplier petitioner was joined in a race that had an unalterable            
          predetermined outcome; within 2 to 5 hours the emulsified asphalt           
          would be rock hard and worthless.  Accordingly, under the facts             
          and circumstances of this case, we cannot find that the                     
          emulsified asphalt is merchandise.                                          
               It is irrelevant that the laid asphalt contained the                   
          potential of providing many years of service to its ultimate                
          beneficiary, the owner of the paved surface.  The utility that              
          must be considered is that afforded the service provider working            
          with the material.  If petitioner was victorious in the race and            




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