Vandra Bros. Construction Co., Inc. - Page 11




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          In that case we found that the taxpayer, a company engaged in the           
          laying of concrete and the installation of related items, such as           
          sand, rock, wire mesh, and rebar, did not sell merchandise to its           
          customers.  Rather, relying on Osteopathic Med. Oncology &                  
          Hematology, P.C. v. Commissioner, 113 T.C. 376 (1999), we found             
          that the concrete and related materials were supplies consumed by           
          the taxpayer.  In Osteopathic Med. Oncology & Hematology, P.C.,             
          we held that chemotherapy drugs furnished by a healthcare                   
          provider in treating cancer patients were supplies rather than              
          merchandise because the taxpayer was a service provider and the             
          drugs were an “integral and inseparable part of its service.”               
          Id. at 384.  Similarly, in RACMP Enters., Inc. v. Commissioner,             
          supra, we held that the taxpayer was a service provider, and we             
          found that the materials used in construction were not                      
          merchandise because they were “indispensable and inseparable from           
          the service provided by” the taxpayer.  Id. at 228.  In                     
          conclusion, we held that because the taxpayer did not produce or            
          sell merchandise, the taxpayer could not be required to use                 
          inventory accounting.  See id. at 229.                                      
               In the instant case, the concrete, stone, reinforcing steel,           
          and other items (collectively, the materials) used by petitioner            
          were not merchandise for the same reasons stated in RACMP                   
          Enters., Inc.:  First, the materials lost their separate identity           
          when used in a construction project.  Second, petitioner did not            






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