Vandra Bros. Construction Co., Inc. - Page 12




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          contract to sell the materials but rather contracted to provide             
          finished walkways, repaired streets, and the like.  Third, the              
          construction projects that petitioner engaged in were                       
          improvements to real property.  Fourth, petitioner did not leave            
          any of the materials on the construction site, or store them for            
          use for a later project.  See id. at 228-231.  Given our recent             
          holding in RACMP Enters., Inc., and the indistinguishable facts             
          of the instant case, we hold that petitioner was not engaged in             
          the production or sale of merchandise.  Therefore, petitioner               
          cannot be required to use inventories, and the Commissioner                 
          abused his discretion in requiring petitioner to change from the            
          cash method of accounting.                                                  
               To reflect the foregoing,                                              
                                             Decision will be entered                 
                                           for petitioner.                            






















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