RACMP Enterprises, Inc. - Page 51




                                       - 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 their             




Page:  Previous  41  42  43  44  45  46  47  48  49  50  51  52  53  54  55  56  57  58  59  60  Next

Last modified: May 25, 2011