RACMP Enterprises, Inc. - Page 24




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          this Court considered the issue of whether a person in the                  
          business of only laying emulsified asphalt sold merchandise or              
          maintained an inventory of emulsified asphalt.7                             
               In Galedrige Constr., Inc. it was clear that the taxpayer,             
          an asphalt paving contractor, provided a service to its clients;            
          if its clients had wanted only to purchase emulsified asphalt,              
          they could have done so by dealing directly with the emulsified             
          asphalt supplier.  Similarly, in the case at hand, it is clear              
          that petitioner provides service to its clients; if its clients             
          wanted only piles of fill sand, drain rock, liquid concrete, and            
          miscellaneous hardware items, they could obtain them directly               
          from the various suppliers.  It is evident that petitioner's                
          clients could order the various materials directly from the                 



               7In Akers v. Commissioner, T.C. Memo. 1984-208, affd. in               
          part and revd. in part sub nom. Asphalt Prods. Co. v.                       
          Commissioner, 796 F.2d 843 (6th Cir. 1986), this Court considered           
          the issue of whether a taxpayer in the business of manufacturing            
          and selling asphalt and asphalt products, who maintained                    
          inventories including oil byproducts and other raw materials, in            
          addition to performing some paving work, must account for                   
          inventories and use the accrual method of accounting.                       
               In contrast, the taxpayer in Galedrige Constr. Inc. v.                 
          Commissioner, T.C. Memo. 1997-240, was not in the business of               
          manufacturing asphalt and maintained no inventory of asphalt, oil           
          byproducts, or other raw materials.  Moreover, unlike the                   
          taxpayer in Akers who had large tanks in which it was able to               
          preserve the emulsified condition, and therefore the marketable             
          quality, of its finished product, the taxpayer in Galedrige                 
          Constr., Inc. was unable to prevent or delay the asphalt from               
          becoming rock hard and worthless within a very few hours.                   







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