- 67 - that taxpayers may be required to use the inventory and/or accrual method even though they do not have goods on hand. To use the lack of inventory on hand as a reason to hold that respondent has abused his discretion is, likewise, not appropriate.9 Although the opinion in Ansley-Sheppard-Burgess Co. v. Commissioner, supra, focused on section 448, the parties in that case stipulated that the taxpayer did not maintain an inventory and met the requirement of section 448(b)(3). In this case, no such agreement exists. In this case, petitioner is not exempted from showing that the cash method clearly reflected its income by any of the expedients relied upon by the majority. Moreover, petitioner has not shown that respondent’s determination was plainly arbitrary. The use of Osteopathic Med. Oncology & Hematology, P.C. v. Commissioner, supra, as a pervasive rule that income from services, by definition, cannot involve the sale of goods or merchandise would be unsound.10 The majority’s holding here would have the effect of overruling numerous cases, including several involving similarly situated taxpayers engaged in the construction industry. The effect of the majority’s holding is to exempt contractors in the construction industry from sections 9 That reasoning is further weakened by petitioner’s failure to show that no materials were on hand at the close of its taxable year. 10 For example, at the other end of the spectrum, a service (as opposed to self-service) grocery store provides many services for its customers in connection with the sale of its merchandise.Page: Previous 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 Next
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