RACMP Enterprises, Inc. - Page 72




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          use inventories); Epic Metals Corp. v. Commissioner, T.C. Memo.             
          1984-322 (taxpayer’s failure to prove that title to goods did not           
          pass to it decisive to decision rejecting its argument that, in             
          arranging the sale of goods between two other parties, it was               
          only a broker selling its services and was not a seller itself),            
          affd. without published opinion 770 F.2d 1069 (3d Cir. 1985).               
               What about risk of loss?  Assume that the taxpayer bears the           
          risk of loss with respect to materials destroyed during                     
          production or if performance under the contract is rejected.  Is            
          that fact, likewise, irrelevant?  If not, how does it influence             
          the required determination?  In Fame Tool & Manufacturing Co. v.            
          Commissioner, 334 F. Supp. 23 (S.D. Ohio 1971), the taxpayer                
          manufactured tools and dies to order.  It maintained no finished            
          inventory, had a substantial amount of work in progress, and the            
          average time to complete an order was 1 or 2 weeks.  Since the              
          end product manufactured by the taxpayer had to satisfy the                 
          customer’s specifications, if the tool or die failed to meet                
          those specifications, it was rejected and had to be scrapped.               
          The percentage of rejects varied widely.  The taxpayer argued               
          that, since it was a “pure” tool and die maker, as distinguished            
          from a precision manufacturer, it provided a service and,                   
          therefore, there was no “merchandise” or any “production” within            
          the meaning of section 1.471-1, Income Tax Regs.  The District              
          Court rejected that argument, relying on Wilkinson-Beane, Inc. v.           
          Commissioner, 420 F.2d 352 (1st Cir. 1970), affg. T.C. Memo.                




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