RACMP Enterprises, Inc. - Page 67




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          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.           



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