David K. Straight - Page 29

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               4.   Whether the Purchase Agreements Were for Building,                
                    Installing, Constructing, or Manufacturing of Items by            
                    Eagle                                                             
               Respondent contends that the payments at issue are not                 
          advance payments under section 1.451-5(a)(1)(ii), Income Tax                
          Regs., because Eagle did not build, install, construct, or                  
          manufacture the house kits; Timberline did.  Petitioner contends            
          that Eagle need not be the manufacturer for the payments to                 
          qualify under the regulation.  Petitioner points out that Eagle's           
          subcontractor, generally Timberline, manufactured the house kits            
          at Eagle's direction.  Petitioner also points out that Eagle's              
          engineers provided design services and produced the blueprints              
          for the house kits.  Petitioner cites no credible authority or              
          argument to support his contention that Eagle need not be a                 
          manufacturer to qualify under section 1.451-5, Income Tax Regs.             
               Petitioner points out that we held that a taxpayer qualifies           
          under Rev. Proc. 71-21, 1971-2 C.B. 549, for deferral of income             
          from services in a case in which the services were performed by             
          subsidiaries instead of the taxpayer.  Barnett Banks, Inc. v.               
          Commissioner, 106 T.C. 103, 104-105, 116-117 (1996).  However,              
          there is no indication that the parties in that case raised or              
          that the Court considered the fact that the services were                   
          performed by subsidiaries.                                                  
               Petitioner contends that Eagle is a contractor and qualifies           
          under section 1.451-5, Income Tax Regs.  We disagree.  To qualify           
          under that regulation, the taxpayer must build, construct,                  




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