Galedrige Construction, Inc. - Page 11

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          Beginning in the early 1990's, the Commissioner began to                    
          require contractors to account for the materials used in                    
          construction as merchandise inventory.6                                     
               In J.P. Sheahan Associates, Inc. v. Commissioner, supra, a             
          roofing company argued that because it ordered materials only on            
          an “as needed” basis (leftover materials were either returned to            
          the supplier for credit or held by the taxpayer at one of its               
          base locations until shipped to a job site), it had no yearend              
          inventory and therefore did not hold merchandise for sale within            
          the meaning of the regulations.  The Court said:                            
               In so contending, petitioner ignores the fact that the                 
               regulations speak in terms of “every case in which the                 
               production, purchase, or sale of merchandise is an                     
               income-producing factor.”  This is the foundation for                  
               the determination by respondent, pursuant to section                   
               471, that inventories should be used; the fact that                    
               such use may produce a zero or minimal year-end                        
               inventory is irrelevant.  [Citations omitted.7]                        
               Under J.P. Sheahan Associates, Inc., it is irrelevant                  
          whether the taxpayer has merchandise on hand at the end of the              
          year for the determination that it must "utilize the inventory              
          method in computing its taxable income."  Id.  Thus, the fact               
          that petitioner had no emulsified asphalt on hand at the end of             



               6    See Nolan, "Can the Cash Method of Accounting Clearly             
          Reflect Income?" Tax Notes 1063 (Feb. 24, 1997).                            
               7   In so holding, the Court distinguished as dicta certain            
          language in Asphalt Prods. Co. v. Commissioner, 796 F.2d 843 (6th           
          Cir. 1986), affg. in part and revg. in part Akers v.                        
          Commissioner, T.C. Memo. 1984-208.                                          




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