RACMP Enterprises, Inc. - Page 52




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          separate identity, become part of the hardened concrete, and are            
          thus “indispensable and inseparable from the service provided by            
          the taxpayer”, majority op. p. 27; (g) driveways and walkways are           
          improvements to real property and, ipso facto, cannot be                    
          merchandise.  Because of the majority’s conclusion that the                 
          materials that went into the product (sidewalks, driveways, and             
          foundations) were not merchandise, the majority does not discuss            
          whether they were material income-producing factors.                        
               A full and complete analysis of the record does not support            
          the majority’s ultimate finding of fact that the materials and              
          products were merely supplies consumed in petitioner’s                      
          performance of a service for customers.  Likewise, an analysis of           
          established precedent of this Court leads to the conclusion that            
          petitioner has not carried its burden of showing:  That the                 
          materials and/or finished product were not material income-                 
          producing factors; that the cash method of accounting more                  
          clearly reflects income; and, ultimately, that respondent abused            
          his discretion by determining that petitioner should change to              
          the accrual method.                                                         
               (a) Petitioner’s Business Is Not Primarily Providing a                 
          Service--To be sure, petitioner is engaged in a labor-intensive             
          activity.  Generally, the construction industry is considered to            
          be service oriented.  Most businesses, however, have some element           








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