Osteopathic Medical Oncology and Hematology, P.C. - Page 19




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          Wilkinson-Beane, Inc. v. Commissioner, 420 F.2d 352 (1st Cir.               
          1970), affg. T.C. Memo. 1969-79.  There, the taxpayer was an                
          undertaker that sold caskets as part of its funeral service.  In            
          finding that the caskets were merchandise for purposes of section           
          471, the Court of Appeals for the First Circuit noted that the              
          taxpayer normally kept an inventory of some 35 caskets, that the            
          caskets were not necessarily used during the year but were                  
          purchased and occasionally carried for long periods of time, that           
          the caskets were on display and played a central role in the                
          "sale" of the taxpayer's service, and that there was a direct               
          relationship between the magnificence of the caskets and the cost           
          of the service.  See id.                                                    
               Those factors are not present here.  Petitioner kept no more           
          than a 2-week supply of chemotherapy drugs on hand and used                 
          virtually all the drugs during the taxable year.  The drugs also            
          were not displayed to patients for selection, and patients played           
          no role in determining the type or amount of drugs used on them.            
          Furthermore, unlike the taxpayer’s business in Wilkinson-Beane,             
          Inc., the type of chemotherapy drugs or the "magnificence"                  
          thereof played no role in whether patients chose to purchase                
          petitioner's services.  The variable factor in the cost of a                
          patient's treatment is a factor out of the patient's control;               
          i.e., the type and severity of the patient's condition.  We also            
          find it critical that a person is unable to obtain the                      





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