- 42 - accrual method because it was in a service business and because it had no inventories. The majority’s limited focus represents only a portion of the standard to be considered in order to decide this issue. Petitioner’s burden (heavier than normal) is to show that respondent’s determination is in error; i.e., that respondent abused his discretion by determining that petitioner’s method does not clearly reflect income. Petitioner cannot carry that burden by the simple expedient of contending that the materials it uses to produce finished sidewalks, driveways, and foundations should be labeled as supplies consumed. It must also show that its method of accounting clearly reflected income and that respondent’s determination was clearly unlawful or plainly arbitrary. Based on the facts of this case, petitioner has failed to carry its burden. Ultimate Factual Conclusions by the Majority1 The majority attempts to persuade us that the materials used by petitioner, which represented two-thirds of the total cost, were incidental to and absorbed in the performance of services (labor), which represented one-third of the cost. The majority 1 As the trial Judge (finder of fact) in a factually oriented case, I am placed in the difficult and unpleasant position of providing, in the context of a dissenting opinion, my factual perspective. Two critical factual inquiries are presented by the issues: (1) Whether petitioner has shown that respondent abused his discretion, and (2) whether petitioner produced or sold merchandise and/or had ending inventory. I disagree with the majority’s ultimate findings of fact, and, to some degree, the standard employed. Each of these matters is separately addressed in this dissent.Page: Previous 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 Next
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