RACMP Enterprises, Inc. - Page 15




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          Transwestern Pipeline Co. v. United States, 225 Ct. Cl. 399, 639            
          F.2d 679, 681 (1980) (distinguishing Thor Power Tool Co. v.                 
          Commissioner, supra, because in that case "it was an uncontested            
          fact that the property in issue consisted of an inventory of                
          goods held for sale").                                                      
               Respondent determined that the material petitioner used in             
          its construction activity was merchandise that was income                   
          producing, and, therefore, petitioner must use the accrual method           
          of accounting to clearly reflect its income.  Petitioner asserts            
          that it is in the business of providing service and that its                
          clients purchase its expertise in constructing, placing, and                
          finishing foundations, driveways, and walkways, not merchandise.            
          Therefore, petitioner contends that its use of the cash method of           
          accounting is proper.  We agree with petitioner.                            
          Issue 1.  Whether the Material Provided by Petitioner in                    
                    Accordance With Its Contract To Construct and Place               
                    Concrete Foundations, Driveways, and Walkways Is                  
                    Merchandise                                                       
               Whether petitioner is required to report its income on the             
          accrual method of accounting instead of the cash method depends             
          on whether petitioner is in the business of selling merchandise             
          to customers in addition to providing service or whether the                
          material provided by petitioner is a supply that is incidental to           
          the provision of the contracted service.  See Wilkinson-Beane,              
          Inc. v. Commissioner, 420 F.2d 352, 353-354 (1st Cir. 1970),                
          affg. T.C. Memo. 1969-79; Osteopathic Med. Oncology & Hematology,           





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