Osteopathic Medical Oncology and Hematology, P.C. - Page 50




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               Finally, the majority’s reliance on Hospital Corp. of Am. v.           
          Commissioner, 107 T.C. 116 (1996), to support its proposition               
          that petitioner’s income is attributable solely to services and             
          not to some combination of services and merchandise is puzzling.            
          In Hospital Corp. of Am., we did indeed find that, for purposes             
          of section 448(d)(5), the use of medical supplies is part of the            
          medical services furnished patients by the hospitals in question.           
          See id. at 144.  In the same breath, however, we found “the cost            
          of those supplies is an incidental cost of the health care                  
          services provided by the hospitals.”  Id.   Given that finding,             
          the fact that Hospital Corp. of Am. involves a different section            
          of the statute, and our specific reservation in Hospital Corp. of           
          Am. that we were not deciding the question of whether the                   
          furnishing of medical supplies by the hospitals as a part of the            
          rendering of services to their patients could be considered to be           
          a sale of inventory, I do not consider that case as persuasive              
          with respect to the issue before us today.                                  
               The majority cannot escape an examination of the particular            
          facts of this case in light of the relevant provisions of law.              
                    4.  Finding of Fact                                               
                    We find the instant setting distinguishable from                  
               the setting of those cases in which we have held that                  
               goods utilized by a service provider were merchandise                  
               for purposes for the inventory rules.  We give                         
               significance to the uniqueness of the industry in which                
               petitioner operates in relation to the other service                   
               industries we have addressed on this issue and bear in                 





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