- 25 - 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 duringPage: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
Last modified: May 25, 2011