Osteopathic Medical Oncology and Hematology, P.C. - Page 49




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               from providing hospital and professional care to the                   
               sick.  [Id. at 238.]                                                   
          Those are not statements of law but findings of fact.  The                  
          findings that the Bluefield hospital is in the customary service            
          business of hospitals and has no merchandise is not necessarily             
          applicable to petitioner.  Petitioner is not a hospital, but runs           
          a chemotherapy clinic, where chemotherapy drugs constitute both a           
          significant cost and a substantial source of revenue.  There is             
          no finding as to how significant drugs and similar items were to            
          the overall cost of treatment at the Bluefield hospital.  In St.            
          Luke’s Hospital, Inc. v. Commissioner, supra, which dealt with              
          medicine as it was practiced over more than 40 years ago, the               
          Commissioner did not even suggest that inventories were required.6          
          It is no authority for any conclusion of law.                               
               Nor can the majority rely on any rule of law that service              
          providers need never use inventories:  “We have previously                  
          examined service transactions in a variety of industries to                 
          determine whether the transactions in substance involved solely             
          the sale of a service, or whether the transactions involved the             
          sale of both a service and merchandise.”  Majority op. p. 13.               


               6  In Abbott Labs. v. Portland Retail Druggists Association,           
          Inc., supra at 11, decided in 1976, the Supreme Court stated with           
          respect to nonprofit hospitals:  “we recognize * * * that the               
          concept of the nonprofit hospital and its appropriate and                   
          necessary activity has vastly changed and developed since the               
          enactment of the Nonprofit Institutions Act in 1938.”  Needless             
          to say, much more has changed in the last 23 years.                         




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