- 28 - with other tangible personal property, lost its separate identity to become an integral and inseparable part of the real property in the construction activity.9 Cf. Wilkinson-Beane, Inc. v. Commissioner, 420 F.2d 352, 355 (1st Cir. 1970) (caskets sold as part of undertaking establishment’s funeral service retain their separate identity); Thompson Elec., Inc. v. Commissioner, T.C. Memo. 1995-292 (lighting fixtures, which by definition do not lose their separate identity, used with other materials in taxpayer’s electrical contracting business). Thus, the materials in this case are similar to the chemotherapy drugs in Osteopathic Med. Oncology & Hematology, P.C. v. Commissioner, supra, which, though not ephemeral in the sense that their usefulness would disappear if not immediately used, when injected also lost their identity separate from that of the patient. Materials that lose their separate identity in these circumstances are not merchandise within the meaning of section 1.471-1, Income Tax Regs.; rather, they are supplies consumed in the provision of service that are properly deducted under section 162. Second, petitioner did not contract to sell materials to its developer clients, and the clients had no interest in purchasing materials from petitioner. Petitioner's contract with its real 9We note that the materials suppliers sent the California Preliminary Lien Notices to the developer; the notices provided that if the bill for the materials was not paid in full, a mechanic’s lien could be placed against the developer’s real property.Page: Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Next
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