RACMP Enterprises, Inc. - Page 25




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          suppliers by the fact that the clients paid for the various                 
          materials separately and specifically with a joint payee check.             
               From the moment the taxpayer in Galedrige Constr., Inc.                
          received the "emulsified asphalt from the supplier * * * [it] was           
          joined in a race that had an unalterable predetermined outcome;             
          within 2 to 5 hours the emulsified asphalt would be rock hard and           
          worthless."  Id.  The race was not to sell or to deliver the                
          asphalt to the taxpayer's client; rather, it was to lay the                 
          asphalt before time expired and the asphalt changed its physical            
          state into a form that was worthless to the taxpayer; only the              
          liquid state of the emulsified asphalt provided any utility to              
          the taxpayer, and that state expired very quickly.                          
               Consequently, in Galedrige Constr., Inc. v. Commissioner,              
          supra, the only form of the material that provided any value to             
          the taxpayer was "used up" or consumed in providing service to              
          the taxpayer's client.  Consumption of a material in the                    
          performance of a service or in a manufacturing process is                   
          indicative that the material is a supply, not merchandise held              
          for sale.  See Osteopathic Med. Oncology & Hematology, P.C. v.              
          Commissioner, 113 T.C. at 385; see also Rev. Rul. 75-407, 1975-2            
          C.B. 196 (public utility that used the accrual method of                    
          accounting should continue to deduct as a supply expense under              
          section 1.162-3, Income Tax Regs., the cost of fuel oil consumed            
          and used to generate electricity distributed to customers during            






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Last modified: May 25, 2011