Osteopathic Medical Oncology and Hematology, P.C. - Page 12




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          chemotherapy drugs are merchandise.  See Wilkinson-Beane, Inc. v.           
          Commissioner, supra; Honeywell Inc. v. Commissioner, supra; sec.            
          1.471-1, Income Tax Regs.                                                   
               The statute and regulations do not define the words                    
          “merchandise” or “inventory”, nor do they clearly distinguish               
          between "inventory" and “materials and supplies” that are not               
          actually consumed and remain on hand.  We have held that                    
          “merchandise”, as used in section 1.471-1, Income Tax Regs., is             
          an item acquired and held for sale.  See Wilkinson-Beane, Inc. v.           
          Commissioner, T.C. Memo. 1969-79.  Upon appeal, the Court of                
          Appeals for the First Circuit agreed, stating:                              
               A canvassing of authorities in the accounting field                    
               yields several definitions, such as “goods purchased in                
               condition for sale,” “goods awaiting sale,” “articles                  
               of commerce held for sale,” and “all classes of                        
               commodities held for sale.”  Clearly, the meaning of                   
               the term must be gathered from the context and the                     
               subject. * * * The common denominator, however, seems                  
               to be that the items in question are merchandise if                    
               held for sale.  [Wilkinson-Beane, Inc. v. Commissioner,                
               420 F.2d at 354-355; citations omitted.]                               
               Whether an item is acquired and held for sale is governed by           
          the substance of the transaction and not its form.  See Honeywell           
          Inc. v. Commissioner, supra.  We take into account the particular           
          facts and circumstances of the taxpayer in each case and the                
          manner and context in which the taxpayer operates the business at           
          hand.  See Wilkinson-Beane, Inc. v. Commissioner, supra; Thompson           
          Elec., Inc. v. Commissioner, T.C. Memo. 1995-292; Honeywell Inc.            
          v. Commissioner, supra; J.P. Sheahan Associates, Inc. v.                    




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