RACMP Enterprises, Inc. - Page 28




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          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.                                                                   





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