Tebarco Mechanical Corporation - Page 15

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          Simon, the Court of Appeals for the Second Circuit noted that one           
          of the conclusive facts in finding the taxpayer did not maintain            
          inventories was that the taxpayer had no stock or merchandise on            
          hand and no warehouse or storeroom for merchandise.  Simon v.               
          Commissioner, supra at 232.  Here, as discussed below, we find as           
          fact that petitioner did indeed have stock on hand and a                    
          warehouse where it stored materials.                                        
               In addition to the above-described materials petitioner                
          acquired in its business, respondent alleges that petitioner had            
          a warehouse where it stored materials such as large piping, duct            
          work, plumbing materials, sheet metal, small hardware pieces, and           
          materials left over from various job sites.  Petitioner admits              
          that its office contains a large warehouse where it keeps                   
          materials such as scraps from old jobs, doors, and some duct                
          work.  Moreover, petitioner concedes that if it does maintain the           
          "warehouse inventory" as alleged by respondent, "then there is no           
          question that it will have title to it."   Petitioner contends              
          however, both at trial and on brief, that the warehouse space was           
          shared by petitioner and two corporations run by the brothers of            
          petitioner's president.  At trial, Barden, petitioner's                     
          president, testified that his brother, Howell, who owned General            
          Mechanical Corporation (General Mechanical), had shut down his              
          company after being in business for 20 years.  Barden claimed               
          that all of the material from General Mechanical's shop was                 
          brought to petitioner's warehouse and stored there by Howell.               




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