Vandra Bros. Construction Co., Inc. - Page 10




                                       - 10 -                                         
                                       OPINION                                        
               We must decide whether respondent’s determination that                 
          petitioner’s use of the cash method of accounting did not clearly           
          reflect income was an abuse of respondent’s discretion.  We hold            
          that it was.                                                                
               In order to require a taxpayer to change its method of                 
          accounting, the Commissioner must determine that the method used            
          by the taxpayer does not clearly reflect income.  See sec.                  
          446(b); Hallmark Cards, Inc. v. Commissioner, 90 T.C. 26, 31                
          (1988).  While the Commissioner’s discretion is broad, see Thor             
          Power Tool Co. v. Commissioner, 439 U.S. 522, 532-533 (1979), it            
          is not absolute, see Hallmark Cards, Inc. v. Commissioner, supra,           
          and we find an abuse of discretion when the Commissioner’s                  
          determination is without sound basis in fact or law.  See Ansley-           
          Sheppard-Burgess Co. v. Commissioner, 104 T.C. 367, 371 (1995).             
               In RACMP Enters., Inc. v. Commissioner, 114 T.C. 211 (2000),           
          we addressed these issues in a factual context indistinguishable            
          from the instant case.  In that case, we provided as follows:               
                    Whether * * * [the taxpayer] is required to report                
               its income on the accrual method of accounting instead                 
               of the cash method depends on whether * * * [the                       
               taxpayer] is in the business of selling merchandise to                 
               customers in addition to providing service or whether                  
               the material provided by * * * [the taxpayer] is a                     
               supply that is incidental to the provision of the                      
               contracted service.  [Id. at 220; citations omitted.]                  









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