RACMP Enterprises, Inc. - Page 42




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          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.                                       



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