David K. Straight - Page 28

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          supplier (i.e., Timberline) holds the goods, relying on Gas Light           
          Co. v. Commissioner, T.C. Memo. 1986-118.  Petitioner argues that           
          the house kits sold by Eagle were held by the taxpayer as                   
          required by section 1.451-5(a)(1)(i), Income Tax Regs., even                
          though they were manufactured by Timberline and shipped directly            
          to Eagle's customers.                                                       
               We disagree.  In Gas Light Co. v. Commissioner, supra, we              
          held that, under section 1.451-5(a), Income Tax Regs., security             
          deposits received by a utility company were advance payments                
          relating to inventoriable goods.  In that case, the taxpayer                
          contended that it never had in its inventory natural gas which              
          was transmitted by pipeline.  We rejected that contention; we               
          said that natural gas transmitted through pipelines becomes                 
          inventory when it enters the pipeline, relying on Northern                  
          Natural Gas Co. v. Commissioner, 44 T.C. 74, 77-79 (1965), affd.            
          362 F.2d 781 (8th Cir. 1966), in which the taxpayer admitted that           
          it owned pipeline gas and was required to use inventories in                
          computing income.  Here, it is undisputed that Eagle did not at             
          any time own or have title to the house kits; Timberline did.               
          Thus, unlike the taxpayer in Gas Light Co. v. Commissioner,                 
          supra, Eagle had no inventory.                                              
               We conclude that the payments at issue were not advance                
          payments under section 1.451-5(a)(1)(i), Income Tax Regs.,                  
          because Eagle did not hold the house kits primarily for sale to             
          customers in the ordinary course of business.                               




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