Osteopathic Medical Oncology and Hematology, P.C. - Page 53




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               The majority describes as seminal the opinion of the Court             
          of Appeals for the First Circuit in Wilkinson-Beane, Inc. v.                
          Commissioner, supra.  The taxpayer in Wilkinson-Beane, Inc. was             
          an undertaking establishment, which argued the primacy of the               
          services that it provided to its customers.  The Court of Appeals           
          affirmed the finding of the Tax Court that the taxpayer was                 
          selling merchandise.  The Court of Appeals stated:                          
               We fully recognize that petitioner was in the business                 
               or providing valuable services.  But we think it would                 
               be anomalous to hold that a taxpayer in a service                      
               business can have no merchandise even though he derives                
               a substantial portion of his income from the regular                   
               purchase and sale of tangible personal property.  We                   
               certainly have no basis for so restricting the                         
               application of the word 'merchandise’.  * * * Since the                
               caskets play a central role in the 'sale' of taxpayer's                
               service, to use its term, we see no error in the                       
               determination that the caskets were merchandise.                       
          Id. at 355.  The Court of Appeals’ inquiry into the centrality of           
          the property to the sale and the substantiality of the income               
          attributable to the property has been followed in subsequent                
          cases.  For example, in J.P. Sheahan Associates, Inc. v.                    
          Commissioner, T.C. Memo. 1992-239, we determined whether roofing            
          materials constituted merchandise, and we looked to whether the             
          materials were shown separately on the customer’s bill, they                
          represented a substantial amount of the total bill, and they were           
          marked up.  In Thompson Elec., Inc. v. Commissioner, T.C. Memo.             
          1995-292, which involved an electrical contractor, we said:  “If            
          the cost of material a taxpayer uses to provide a service is                





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