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distinguish from those set forth in Thompson Elec., Inc.
(b) The Majority’s Use of the Terms “Merchandise”,
“Inventory”, and “Goods Held for Sale”--Although the terms
“merchandise” and “inventory” are not specifically defined in the
tax law, it is fair to say that those terms are broadly used in
the pertinent statutes and regulations. Petitioner’s contractual
relationships involve large residential construction projects,
and, at any particular time, petitioner has work in progress
(including placed sand, gravel, re-bar, anchor bolts and rods,
expansion anchors, holddowns, straps, piping for sewer and
drainage, and finished sidewalks, driveways, and foundations that
the developer has not yet accepted). Petitioner also purchases
materials that remain on hand and in place at the end of its
taxable year. I disagree with the majority’s holding based on
petitioner’s uncorroborated statements and argument that there
was no inventory on hand or that it was not producing
merchandise.
The majority also makes a distinction that is at odds with
existing case law by holding that merchandise/inventory must be
“property that is held for sale, not simply property that is
sold.” Majority op. p. 17. Implicit in the majority’s statement
is that goods do not become merchandise or inventory if they are
not “held” for some period of time. The only difference one
might glean from the majority’s distinction is that the purchased
items must be “held” for some period of time for sale to
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