Osteopathic Med. Oncology & Hematology, P.C. v. Commissioner

Beghe, J., concurring: I write separately to tie up or at least pick at a loose end left by respondent’s determination and arguments: the proper tax treatment of the slightly more than 2-week supply of chemotherapy drugs costing $31,887 on hand at the end of the taxable year. 1

Respondent, having tried to put petitioner on the accrual method with respect to “sales” of chemotherapy drugs, determined that petitioner’s income should be increased not only by the cost of such drugs on hand at yearend in the amount of $31,887, but also by $148,557, the value of petitioner’s accounts receivable relating to such drugs transmitted to patients during the year. Rejecting respondent’s “sales” characterization in favor of treating petitioner’s operations as an overall service business, we have thereby rejected respondent’s determination putting petitioner on a hybrid method that would require accrual of its yearend receivables with respect to transmissions of such drugs.

Respondent did not assert or argue, as an alternative fallback position, that petitioner’s deduction of the cost of drugs on hand at yearend should be deferred to the following year. The Court need not sua sponte make that adjustment, particularly where the proper result in this case is not clear, in part because respondent did not make a stand-alone clear-reflection-of-income determination (or even argument) with respect to such drugs. But, because other cases under submission to the Court present similar or analogous issues, and because the issue seems to be a recurring one, a premonitory attempt to tidy up may not be amiss.

The relevant authority is section 1.162-3, Income Tax Regs., “Cost of materials”, which provides as follows:

Taxpayers carrying materials and supplies on hand should include in expenses the charges for materials and supplies only in the amount that they are actually consumed and used in operation during the taxable year for which the return is made, provided that the costs of such materials and supplies have not been deducted in determining the net income or loss or taxable income for any previous year. If a taxpayer carries incidental materials or supplies on hand for which no record of consumption is kept or of which physical inventories at the beginning and end of the year are not taken, it will be permissible for the taxpayer to include in his expenses and to deduct from gross income the total cost of such supplies and materials as were purchased during the taxable year for which the return is made, provided the taxable income is clearly reflected by this method.

The accounting authorities are in accord: This regulation means that “Supplies in and of themselves are not considered inventory and, thus, will not cause the taxpayer to be required to use accrual accounting”, Bauernfeind, Income Taxation Accounting Methods and Periods 3-4 (1991), “supplies are deferred expenses under Reg. § 1.162-3 and not inventory under § 471”, id. at 3-14 n.61, and “when the taxpayer’s inventories are of supplies only, use of the cash method is permitted. These items are not inventories under section 471. They are not held for sale in the ordinary course of business”, Gertzman, Federal Tax Accounting 3-55 (2d ed. 1993) (Gertzman).

The regulation says that materials and supplies cannot be currently expensed unless four tests are met: (1) They are “incidental”; (2) no record of consumption is kept; (3) no physical inventories are taken at the beginning and end of the year; and (4) income is clearly reflected. Petitioner in this case would appear to flunk the first three tests: (1) Chemotherapy drugs transmitted to patients in the course of petitioner’s rendering of medical services are a substantial portion of petitioner’s gross receipts and are a material income-producing factor, as evidenced by the markups shown in petitioner’s billing records; and (2) and (3) records of consumption and of supplies on hand at yearend are kept; indeed such records seem to be required by Medicare. However, as to (4), respondent has not made a stand-alone clear-reflection-of-income determination, having chosen to rely solely on the presence of merchandise requiring inventories as compelling automatic adoption of the accrual method of accounting, the position that we have rejected.

In other cases of service providers, such as small contractors in the construction industry, an adjustment treating yearend supplies as deferred expense might very well be appropriate, provided that respondent makes the necessary determinations. Compare J.P. Sheahan Associates, Inc. v. Commissioner, T.C. Memo. 1992-239 , with Thompson Elec., Inc. v. Commissioner, T.C. Memo. 1995-292 , which present different findings of fact regarding yearend materials and supplies.

As Gertzman states supra at 6-30:

The rationale behind this provision [the sec. 162-3 regulation] seems clear. Many taxpayers do not maintain financial accounting records of consumption and do not take physical inventories of the supplies on hand at the beginning and end of the year for business purposes. In these cases, it would be inconsistent with the book conformity requirement of Section 446(a), impractical, and unduly burdensome to require that they undertake such record-keeping responsibilities or make such physical counts solely for tax purposes. However, to protect the Treasury against taxpayers who might avoid undertaking these activities solely for the purpose of obtaining a tax benefit, two protections are afforded. First, the supplies must be incidental and, second, the taxable income so computed must be reflected clearly * * * [Citation omitted.]

The regulation appears to be not much more than an illustration of the rule that expenditures that result in assets having a life beyond the end of the year must be capitalized. See sec. 263; INDOPCO, Inc. v. Commissioner, 503 U.S. 79 (1992). Without attempting to predict the outcome of a hypothetical, see Gulf Oil Corp. v. Commissioner, 89 T.C. 1010, 1044 (1987) (Chabot, J., concurring), affd. on other grounds 914 F.2d 396 (3d Cir. 1990), it suffices to note that the section 162 regulation authorizes the Commissioner in appropriate cases to treat supplies on hand at yearend as deferred expenses.

$772,522 + 26 = $29,712,384 (average cost of 2-week supply) < $31,877 (actual on hand).