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In considering whether a contract is within the statute of
frauds, a contract to "cut, furnish, and deliver" the stonework
for a building is essentially one of labor, the "material upon
which the work and labor were to be done was simply the
incident". Flynn v. Dougherty, 27 P. 1080 (Cal. 1891).
For purposes of the Robinson-Patman Antidiscrimination Act,
ch. 592, 49 Stat. 1526 (1936), 15 U.S.C. sec. 13(a) (1994), which
prohibits discriminatory pricing in the sale of goods, a
construction contract for the provision of labor and materials
including 2 million bricks was not a contract for the sale of
personal property. See General Shale Prods. Corp. v. Struck
Constr. Co., 132 F.2d 425, 428 (6th Cir. 1942).
It is clear from the case law that in the case at hand, the
essence of petitioner's typical contract with its clients was for
the provision of services, not for the sale of personal property.
The fact that the cost of the materials is substantial is
insufficient to transmute the sale of a service to the sale of
merchandise and a service. See Osteopathic Med. Oncology &
Hematology, P.C. v. Commissioner, 113 T.C. at 386; see also North
Am. Leisure Corp. v. A & B Duplicators, Ltd., 468 F.2d 695, 697
of Revenue, 532 N.W.2d 18 (Neb. 1995); Chicago Bridge & Iron Co.
v. State Tax Commn., 839 P.2d 303 (Utah 1992); Yeargin, Inc. v.
Tax Commn., 977 P.2d 527 (Utah Ct. App. 1999); Wisconsin Dept. of
Revenue v. Johnson & Johnson, 387 N.W.2d 91 (Wis. Ct. App. 1986);
State Bd. of Equalization v. Cheyenne Newspapers, Inc., 611 P.2d
805 (Wyo. 1980).
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