RACMP Enterprises, Inc. - Page 19




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          part of the rendering of its services, the materials are not                
          "merchandise" under section 1.471-1, Income Tax Regs.                       
               Petitioner is inherently a service provider.  Petitioner's             
          clients, real property developers, engage petitioner to complete            
          foundations, driveways, and walkways.  It is the general rule in            
          this country for most areas of the law (including the Uniform               
          Commercial Code (UCC), the Uniform Sales Act (USA), State sales             
          tax laws, the statute of frauds, and the Robinson-Patman                    
          Antidiscrimination Act) that a contractor is the consumer of                
          materials and a supplier of services, not the seller of personal            
          property; the courts have invariably found construction contracts           
          that provide for the furnishing of labor and materials to                   
          constitute agreements for work, labor, and services rather than             
          the sale of goods.                                                          
               For example, under the UCC, a highway construction contract            
          requiring a construction company to furnish gravel and other road           
          building materials in the quantities specified and to turn over             
          to the Commonwealth of Massachusetts a completed highway was a              
          contract for work and labor and not a contract for the sale and             
          purchase of personal property.  See Saugus v. B. Perini & Sons,             
          Inc., 26 N.E.2d 1, 3-4 (Mass. 1940).  The main objective of a               
          contract to construct a horse barn, which required the provision            
          of materials, was the construction of the barn, not the sale of             
          goods.  See Hunter's Run Stables, Inc. v. Triple H Constr. Co.,             






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