- 51 - method of accounting more clearly reflects income. Respondent has determined that petitioner should use the accrual method, and, accordingly, petitioner must show that there has been an abuse of discretion by addressing the above-referenced factors. Petitioner, relying on Galedrige Constr., Inc. v. Commissioner, T.C. Memo. 1997-240, attempts to lessen its burden by attempting to show that the materials used and the objects constructed are not merchandise and are instead supplies consumed in performing a service. Following petitioner’s lead, the majority holds that neither the materials nor the constructed products constitute merchandise. In support of the holding that the materials used and the products completed by petitioner are not merchandise, the majority relies on the following: (a) Petitioner is primarily a service provider (a fact that is not supported by the record when viewed as a whole); (b) there is no established definition for the terms “inventory” or “merchandise”; (c) in order for items to be “merchandise” they must be goods held for sale; (d) case law holds that, per se, construction contracts are contracts for the provision of services as opposed to the sale of goods; (e) liquid concrete cannot be merchandise because it hardens in a short period of time; i.e., is ephemeral in nature and must, therefore, be consumed in the performance of a service; (f) the sand, gravel, re-bar, anchor bolts and rods, expansion anchors, holddowns, straps, and piping for sewer and drainage lose theirPage: Previous 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 Next
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