- 21 - 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).Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Next
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