RACMP Enterprises, Inc. - Page 21




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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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