- 72 - 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.Page: Previous 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 Next
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