Nemetschek North America, Inc. - Page 11

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          section generally prohibits a C corporation from using the cash             
          method.  Sec. 448(a)(1).  Although section 448(b)(3) provides an            
          exception to this prohibition in the case of a C corporation that           
          satisfies the $5 million gross receipts test of section                     
          448(c)(1), we read nothing in section 448 that provides that a C            
          corporation may use the cash method merely because it meets that            
          exception.  In fact, section 1.448-1T(c), Temporary Income Tax              
          Regs., 52 Fed. Reg. 22767 (June 16, 1987), explains clearly the             
          effect of section 448 on section 446(b).  That section states:              
                    nothing in section 448 affects the authority                      
                    of the Commissioner under section 446(b) to                       
                    require the use of an accounting method that                      
                    clearly reflects income * * *.  For example, a                    
                    taxpayer using the cash method may be required                    
                    to change to an accrual method of accounting                      
                    under section 446(b) because such method                          
                    clearly reflects that taxpayer’s income, even                     
                    though the taxpayer is not prohibited by                          
                    section 448 from using the cash method. * * *                     
               Petitioner also asserts that Diehl did not sell merchandise            
          that was an income-producing factor in its business.  We                    
          disagree.  The term “merchandise” includes any item held for                
          sale.  Osteopathic Med. Oncology & Hematology, P.C. v.                      
          Commissioner, 113 T.C. 376, 382-383 (1999); see also Wilkinson-             
          Beane, Inc. v. Commissioner, 420 F.2d 352, 354-355 (1st Cir.                


               3(...continued)                                                        
                    more than $5,000,000.--Paragraphs (1) and (2)                     
                    of subsection (a) shall not apply to any                          
                    corporation or partnership for any taxable                        
                    year if, for all prior taxable years                              
                    beginning after December 31, 1985, such                           
                    entity met the $5,000,000 gross receipts test                     
                    * * *.                                                            



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