Osteopathic Medical Oncology and Hematology, P.C. - Page 51




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               mind the recent case of Hospital Corp. of Am. v.                       
               Commissioner, 107 T.C. 116, 143-145 (1996).* * *                       
          Majority op. p. 14.                                                         
               What facts distinguish this case from those cases in which             
          we have held that goods utilized by a service provider were                 
          merchandise for purposes of section 1.471-1, Income Tax Regs.?  I           
          agree with the majority’s observations that medicine is unique,             
          and that it is inherently a service business.  So what!  Contrary           
          to the majority’s impression, health care providers do sell                 
          goods.  See, e.g., De Modena v. Kaiser Found. Health Plan, Inc.,            
          supra (drugs purchased by an HMO for resale to its members are              
          purchased for the HMO’s own use).  The relevant distinction is              
          between supplies, for which inventories need not be taken, and              
          merchandise held for sale (merchandise), for which inventories              
          must be taken.  Compare section 1.162-3, Income Tax Regs., with             
          section 1.471-1, Income Tax Regs.  I agree with the majority when           
          it states:  “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.”  Majority op. p. 12.  As             
          previously discussed, supra section IV.A.1, it was plain error              
          for petitioner to treat the expenditure for the chemotherapy                
          drugs as an expenditure for incidental supplies, and, in terms of           
          properly accounting for that expenditure, it makes no difference            
          whether the expenditure is treated as being for merchandise or              





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