Galedrige Construction, Inc. - Page 20

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               If the temporary and rather insignificant increase in                  
               inventories of raw materials had been the only basis                   
               for the Commissioner’s determination, we would have                    
               been inclined to find an abuse of discretion.  We do                   
               not construe the Code provisions and regulations                       
               relating to inventories in the absolute terms adopted                  
               by the Commissioner and the Tax Court. * * *                           
               In contrast to the facts of Knight-Ridder Newspapers, Inc.,            
          petitioner has no raw materials inventory; thus, there is no                
          fluctuation in either the absolute value or the value relative to           
          taxable income.  Furthermore, we are unable to find as a fact               
          that the emulsified asphalt is merchandise.  Thus, we find no               
          factual or legal indicators in Knight-Ridder Newspapers, Inc.               
          that lead us to conclude that petitioner must use an inventory              
          method of accounting.                                                       
               Our analysis of the material at issue, and our finding that            
          under the facts and circumstances of this case the ephemeral                
          quality of the emulsified asphalt bars its inclusion in the class           
          of goods or commodities held for sale as "merchandise", support a           
          conclusion that is different from, but not contrary to, the                 
          holdings in Wilkinson-Beane, Inc. and its progeny.                          
               We do not interpret section 1.471-1, Income Tax Regs., to              
          require that if a material is an income-producing factor it must,           
          per se, be "merchandise".  The section provides that "inventories           
          *  *  * are necessary in every case in which the production,                
          purchase, or sale of merchandise is an income-producing factor".            
          Sec. 1.471-1, Income Tax Regs. (emphasis added).  Thus, we find             
          that the emulsified asphalt is a supply consumed in the operation           




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