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filed answers on April 6, 1998. On December 7, 1998, the Court
consolidated these cases for trial.
On January 14, 1999, the parties executed a stipulation of
facts, which was filed with the Court on February 1, 1999.
Paragraph 15 of the stipulation of facts, e.g., stated as
follows:
Industrial Coil does not maintain an inventory of
materials or completed coils. All necessary materials
are obtained locally after a determination of the
specific materials needed to complete the job is made.
No merchandise is held for sale to customers in the
ordinary course of Industrial Coil's business.
The cases were submitted fully stipulated under Rule 122 on
February 1, 1999. The Court directed the parties to file opening
briefs on April 19, 1999, and reply briefs 45 days thereafter.
After respondent's District Counsel attorney prepared her
proposed opening brief, she sent it, along with copies of the
stipulation of facts and both parties' trial memoranda, to the
Assistant Chief Counsel (Field Service) for review before filing
with the Court. The attorney in the Assistant Chief Counsel's
office responsible for the review opined that the use of the term
"merchandise" in paragraph 15 of the stipulation of facts was
hazardous to respondent's position because the term is "a term of
art in the change of accounting method regulations and opinions."
The attorney concluded that the wording of paragraph 15 amounted
to a concession of a key fact in the cases.
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