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supplies; i.e., a contractor who is hired solely to supervise the
pour and/or finish the concrete. The contract and other facts in
the record reflect an agreement for the delivery of a finished
product. The total cost of the product, two-thirds of which was
composed of materials, was marked up with a 15-percent profit.
Finally, the developer could reject the finished product, and
petitioner would have had to bear the cost of removing the
solidified concrete, which includes the re-bar, bolts, and other
materials (“hardware items”).
Based on the record, I reach the ultimate conclusion that
petitioner was engaged in producing and selling sidewalks,
driveways, and foundations. Petitioner did not merely provide a
service and consume the concrete, sand, re-bar, bolts, plates,
pipes, etc., in providing the service. To so find would stretch
the majority’s analogy to architects and blueprint ink “to
infinity and beyond.” Finally, the value of the materials used
far outweighed the value of the services by a 2 to 1 ratio (66
percent materials vs. 34 percent labor). At the close of
petitioner’s taxable year, it had on hand materials that had been
paid for and were accordingly included in cost of goods sold in
the form of: “Hardware” (re-bar, anchor bolts and rods,
expansion anchors, holddowns, straps, and piping for sewer and
drainage); sand and gravel in place at existing job sites; and
work in progress (including finished sidewalks, driveways, and
foundations composed of purchased materials, which had not been
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