- 17 - 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 andPage: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
Last modified: May 25, 2011