RACMP Enterprises, Inc. - Page 60




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          question of Federal taxation, petitioner passed on the charges              
          for sales tax on all materials that were used in making the                 
          walkways and driveways.  No sales tax was charged on the labor.             
          The costs of the product sold included about two-thirds materials           
          and one-third labor.  More importantly, we cannot consider the              
          Federal laws as being subservient to or dependent upon State                
          sales tax statutes.  That would likely cause differing results              
          depending on the sales tax law and rulings in each State.                   
          Although we might look to State law to determine the ownership of           
          property, we must apply the Federal tax statutes uniformly in               
          accord with our mandate.                                                    
               (c) Galedrige Constr., Inc. v. Commissioner, T.C. Memo.                
          1997-240, Should Not Be Applied in This Case and Is Incorrect as            
          a Matter of Law--Galedrige Constr., Inc., is relied on by                   
          petitioner and is foundational to the majority’s conclusion that            
          liquid concrete is “the only form of the material that provided             
          any value to * * * [petitioner, and it is] ‘used up’ or consumed            
          in providing service to the * * * [petitioner’s] client.”                   
          Majority op. p. 25.  From that premise, the majority reaches the            
          ultimate conclusion that the material has been consumed in the              
          performance of a service and that it is a supply and not                    
          merchandise held for sale.5  Assuming, arguendo, that Galedrige             

               5 For purposes of comparison, the parties in this case                 
          stipulated that the lumber that was used to construct the forms             
          and was removed from the final product and sometimes reused was a           
          supply and not merchandise.  We note that the lumber constituted            
          approximately 1 percent of the cost of the materials.                       



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