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with its customers exactly when, where, and to whom title to the
materials was to pass. See Miami Purchasing Service Corp. v.
Commissioner, 76 T.C. 818, 830 (1981) (the taxpayer, when
negotiating with customers over sales terms could have insisted
on a clear contractual statement of where title was to pass).
Had petitioner set out such terms pursuant to its contracts, and
had it consistently acted in accordance with such contracts,
"such provisions would have furnished clear evidence of the
parties' intention and governed the passage of title". Epic
Metals Corp. v. Commissioner, T.C. Memo. 1984-322, affd. without
published opinion 770 F.2d 1069 (3d Cir. 1985). However, based
on the evidence submitted at trial, we find that petitioner's
contracts do not by their terms prevent petitioner from taking
title to the materials shipped directly to a job site from
petitioner's vendors to its customers.
Moreover, petitioner's assertion that many of its material
acquisitions are identified with specific customers' construction
jobs, does not negate the fact that it purchases materials from
vendors and then sells the ordered materials to its customers.
J.P. Sheahan Associates v. Commissioner, T.C. Memo. 1992-239.
More importantly, that title in the merchandise may not repose in
petitioner for a long period of time does not negate the fact
that petitioner acquires merchandise for sale in its business.
We note that possession of title is a factor in determining when
a sale occurs together with all surrounding circumstances.
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