Tebarco Mechanical Corporation - Page 13

                                       - 13 -                                         
          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.                  




Page:  Previous  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  Next

Last modified: May 25, 2011