RACMP Enterprises, Inc. - Page 63




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          merchandise may only briefly be in the possession of the seller             
          is of no consequence.  See, e.g., Addison Distrib., Inc. v.                 
          Commissioner, T.C. Memo. 1998-289.                                          
               The conclusion that a product with a limited commercial life           
          cannot be merchandise defies reason.  In Asphalt Prods. Co. v.              
          Commissioner, 796 F.2d 843 (6th Cir. 1986), affg. on this issue,            
          revg. in part, and remanding Akers v. Commissioner, T.C. Memo.              
          1984-208, revd. on another issue 482 U.S. 117 (1987), it was held           
          that a seller of asphalt to contractors like the one in Galedrige           
          Constr., Inc., should be on the accrual method because it held              
          merchandise/inventory to be for sale.  Is the asphalt or concrete           
          less ephemeral for the person who supplies it?  If a supplier of            
          asphalt or concrete also contracted to pour and place it for                
          customers, would it have to use differing methods of accounting             
          for each activity?  If taxpayers sell products that spoil easily,           
          should those taxpayers be exempt from the section 471 or section            
          446 requirements if they otherwise fall within the statute’s                
          reach?  The answer to these questions should be “no”, and the               
          Galedrige holding is in error.                                              
               (d) Osteopathic Med. Oncology & Hematology, P.C. v.                    
          Commissioner, 113 T.C. 376 (1999), Is Factually Distinguishable             
          From the Circumstances in This Case--Osteopathic Med. Oncology &            
          Henatology, P.C., was a Court-reviewed opinion in which 10 of 16            
          participating Judges joined in the majority’s findings and                  
          holding, and 4 of 16 joined in the dissent specifically                     




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