OPINION
Laro, Judge:
The parties submitted this case to the Court without trial. See Rule 122. Petitioner petitioned the Court to redetermine respondent's determination of a $50,515 deficiency in its 1995 Federal income tax. The sole issue for decision is whether petitioner, a professional service corporation, may use the cash receipts and disbursements method (cash method) to expense the drugs and ancillary pharmaceuticals (collectively, chemotherapy drugs) used by it while providing chemotherapy treatments to its patients. We hold it may. Unless otherwise stated, section references are to the Internal Revenue Code as applicable to 1995, and Rule ref erences are to the Tax Court Rules of Practice and Procedure.
Background
All facts are stipulated and are so found. The stipulation of facts and the exhibits submitted therewith are incorporated herein by this reference. Petitioner's principal place of business was in Clinton Township, Michigan, when it petitioned the Court.
Petitioner is a professional medical corporation that provides osteopathic services, with a speciality in oncology (mainly chemotherapy) and hematology. Petitioner's staff consists of physicians, nurses and nursing assistants, laboratory technicians, administrative personnel, and office workers. Petitioner has three offices in the Clinton Township area. At each of these offices, petitioner stores chemotherapy drugs and has the staffing, equipment, and supplies necessary to administer chemotherapy treatments.
Chemotherapy drugs are pharmaceutical drugs which under applicable State (Michigan) law must be prescribed by a doctor and may be sold only by a licensed pharmacist. Petitioner is not a licensed pharmacist, and it is unlawful for petitioner to sell the drugs. Petitioner may use the drugs during the performance of its chemotherapy services.
Chemotherapy drugs come in ready-to-use form or as powders or liquids that require mixing. Petitioner generally maintains about a 2-week supply of chemotherapy drugs, and it regularly purchases chemotherapy drugs from suppliers to ensure that it has enough on hand to administer prescribed treatments. Chemotherapy drugs, in an unmixed form, have shelf lives varying from about 6 months to 1 year.
When an individual first becomes a patient of petitioner, one of petitioner's physicians examines him or her to prescribe necessary treatments, and that physician records the individualized chemotherapy treatment in the patient's file. After the patient is evaluated and the physician prescribes a chemotherapy regime, the patient begins regular, periodic treatments. The patient does not select the type or quantity of drugs used in the treatments; this selection is within the sole discretion of petitioner's professional staff. In accordance with standard oncology practice, patients are not examined by a physician at every chemotherapy treatment but are usually reexamined by a physician every 4 to 6 weeks during the ongoing course of treatments. Any changes in the future course of treatments are documented in the patient's file at that time.
Petitioner's personnel mix and otherwise prepare the chemotherapy drugs that petitioner administers to a patient; the chemotherapy drugs cannot be self-administered. One of petitioner's oncology nurses generally performs the administration, and a physician is always on site to respond to emergencies. The physician is not always in the room during the administration.
Petitioner is a participating provider with Medicare and several other private insurance carriers. Virtually all of petitioner's patients who receive chemotherapy treatments are covered by Medicare or private insurance, and those patients are billed only for the cost of the treatments to the extent of copayments, deductibles, and other uncovered charges. For each patient visit, petitioner's staff prepares a physician's statement known as a "charge sheet", which is the document from which petitioner's billing department generates its bills. The charge sheet specifically lists the type, amount, and cost of chemotherapy and other drugs administered, and the type and cost of all professional services rendered. The charge sheets are specific as to the particulars of chemotherapy treatments so as to comply with the guidelines of Medicare and the private insurance industry. Petitioner submits the charge sheets directly to Medicare or another responsible party, and petitioner bills its patients for the co-payments or other charges not covered by insurance.
Medicare and private insurers analyze on an item-by-item basis whether to reimburse the charges shown on the charge sheets. The dollar amount reimbursed for a drug administered to a patient is ascertained by reference to the average wholesale price (AWP) of the units in which the drug is packaged and sold wholesale, which AWP is published annually with quarterly updates. Generally, the reimbursement amount for drugs equals the AWP times the units used, with rounding up to the next whole unit of a drug when billing for administration of a partial unit.
It is common industry practice to charge for all medical services provided even when the health care provider anticipates it will not be paid in full for all charges. The standard charge nationally for chemotherapy drugs is 1.5 times the AWP, and petitioner bills its patients for the drugs at this rate with the expectation that the patient will pay the excess over the amount reimbursed. With all reimbursement payments from Medicare or private insurers, petitioner receives an "Explanation of Benefits" that details the amounts allowed and disallowed as to each specific charge, and the amounts for each charge which are due from secondary insurance and/or the patient.
Petitioner has always used the cash method for purposes of both financial and tax accounting, and it has never maintained an inventory of any of the items used in its practice. Petitioner expenses as supplies the cost of all chemotherapy drugs purchased during the year; the actual cost of chemotherapy drugs which it had on hand at the end of 1995 was $31,887. Petitioner deducted on its 1995 tax return $772,522 in "medical supplies" for the actual cost of the chemotherapy drugs and $66,305 in "laboratory supplies" for the actual cost of miscellaneous nonpharmaceutical items. Petitioner reported on its 1995 tax return $2,938,726 in gross receipts and no cost of goods sold.
Respondent determined that petitioner had to inventory its chemotherapy drugs, and, thus, that petitioner's use of the cash method did not clearly reflect its income. Respondent changed petitioner's method of accounting to a hybrid method, which hybrid method accounted for the chemotherapy drugs on an accrual method and the balance of petitioner's business on the cash method. Respondent's change to the hybrid method increased petitioner's income by: (1) $31,887, the actual cost of the chemotherapy drugs on hand at the end of 1995, and (2) $148,557, the value of petitioner's accounts receivable relating to chemotherapy drugs conveyed to patients as of the end of 1995.
Discussion
We decide for the first time whether the furnishing of pharmaceuticals by a medical treatment facility as an integral, indispensable, and inseparable part of the rendering of medical services is the sale of "merchandise" for purposes of section 1.471-1, Income Tax Regs. In Hospital Corp. of Am. v. Commissioner, 107 T.C. 116 (1996) (HCA), we held that medical supplies and pharmaceuticals used by hospitals are so vital to the furnishing of medical services that income earned therefrom constitutes income earned from the performance of services for purposes of the nonaccrual-experience method of section 448(d)(5). In HCA, we explicitly reserved for another day the question of whether those supplies and pharmaceuticals were merchandise that had to be inventoried under section 1.471—1, Income Tax Regs. See id. at 143-144 n.18. That day is here in the factual setting of a physician's outpatient chemotherapy treatment facility.
We decide this issue in the context of whether it was an abuse of respondent's discretion to exercise his authority under section 446 and require petitioner to change from the cash method to a hybrid method. Presented is the question of whether petitioner should be required to keep inventories for tax purposes under section 471. Respondent determined that petitioner's chemotherapy drugs were merchandise that was an income-producing factor, that petitioner therefore was required to inventory the drugs, and that petitioner was required to use an accrual method to account for this inventory in order to reflect its income clearly. Petitioner asserts that it is not a merchandising business but a provider of services; to wit, chemotherapy treatments for patients stricken with cancer. Petitioner argues that it need not maintain inventories for the chemotherapy drugs used in the treatments.
We agree with petitioner that it is not required to inventory its chemotherapy drugs. We are mindful of the broad discretion accorded the Commissioner in applying sections 446 and 471. Taxpayers challenging the Commissioner's authority must prove that the Commissioner's determination is "clearly unlawful" or "plainly arbitrary". Thor Power Tool Co. v. Commissioner, 439 U.S. 522 (1979); see also Wal-Mart Stores, Inc. & Subs. v. Commissioner, T.C. Memo. 1997-1, affd. 153 F.3d 650 (8th Cir. 1998). The fact that the Commissioner has broad authority under section 446(b), however, does not mean that the Commissioner may change a taxpayer's method of accounting with impunity. See, e.g., Prabel v. Commissioner, 91 T.C. 1101, 1112-1113 (1988), affd. 882 F.2d 820 (3d Cir. 1989). The Commissioner, for example, may not change a taxpayer's method of accounting from one that clearly reflects income to another one that the Commissioner believes more clearly reflects income. See Ansley-Sheppard-Burgess Co. v. Commissioner, 104 T.C. 367 (1995); see also Wal-Mart Stores, Inc. & Subs. v. Commissioner, supra.
We focus our inquiry on whether the chemotherapy drugs were supplies deductible under section 162, or merchandise that must be inventoried under section 471. Section 162(a) allows a deduction for "all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business". The relevant regulations explain that
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. [Sec. 1.162-3, Income Tax Regs.]
Section 471 provides in pertinent part:
SEC. 471. GENERAL RULE FOR INVENTORIES.
(a) General Rule. — Whenever in the opinion of the Secretary the use of inventories is necessary in order clearly to determine the income of any taxpayer, inventories shall be taken by such taxpayer on such basis as the Secretary may prescribe as conforming as nearly as may be to the best accounting practice in the trade or business and as most clearly reflecting the income.
The relevant regulations explain that "inventories at the beginning and end of each taxable year are necessary in every case in which the production, purchase, or sale of merchandise is an income-producing factor." Sec. 1.471-1, Income Tax Regs. Jurisprudence provides that a taxpayer with inventories must use an accrual method, unless the taxpayer shows that use of another method would produce a substantial identity of results and that the Commissioner's determination requiring a change is an abuse of discretion. See Knight-Ridder Newspapers, Inc. v. United States, 743 F.2d 781, 789, 791-793 (11th Cir. 1984); Wilkinson-Beane, Inc. v. Commissioner, 420 F.2d 352 (1st Cir. 1970), affg. T.C. Memo. 1969-79; Ansley-Sheppard-Burgess Co. v. Commissioner, 104 T.C. at 377; see also sec. 1.446-1(c)(2)(i), Income Tax Regs.
Under the facts at hand, respondent may require petitioner to utilize an inventory method of accounting only if we find each of the following as facts: (1) Petitioner produced, purchased, or sold merchandise, and (2) petitioner's production, purchase, or sale of that merchandise was an income-producing factor. See Honeywell Inc. v. Commissioner, T.C. Memo. 1992-453, affd. without published opinion 27 F.3d 571 (8th Cir. 1994). We need not reach the second part of this inquiry, i.e., whether the production, purchase, or sale of merchandise is an income-producing factor, if we are unable to find first that the chemotherapy drugs are merchandise. See Wilkinson-Beane, Inc. v. Commissioner, supra; Honeywell Inc. v. Commissioner, supra; sec. 1.471—1, Income Tax Regs.
The statute and the regulations do not define the word "merchandise" or "inventory", nor do they clearly distinguish between "inventory" and "materials and supplies" that are not actually consumed and remain on hand. We have held that "merchandise", as used in section 1.471-1, Income Tax Regs., is an item acquired and held for sale. See Wilkinson-Beane, Inc. v. Commissioner, T.C. Memo. 1969-79. Upon appeal, the Court of Appeals for the First Circuit agreed, stating:
A canvassing of authorities in the accounting field yields several definitions, such as "goods purchased in condition for sale," "goods awaiting sale," "articles of commerce held for sale," and "all classes of commodities held for sale." Clearly, the meaning of the term must be gathered from the context and the subject. The common denominator, however, seems to be that the items in question are merchandise if held for sale. [Wilkinson-Beane, Inc. v. Commissioner, 420 F.2d at 354-355; citations omitted.]
Whether an item is acquired and held for sale is governed by the substance of the transaction and not its form. See Honeywell Inc. v. Commissioner, supra. We take into account the particular facts and circumstances of the taxpayer in each case and the manner and context in which the taxpayer operates the business at hand. See Wilkinson-Beane, Inc. v. Commissioner, supra; Thompson Elec., Inc. v. Commissioner, T.C. Memo. 1995-292; Honeywell Inc. v. Commissioner, supra; J.P. Sheahan Associates, Inc. v. Commissioner, T.C. Memo. 1992-239. We have previously examined service transactions in a variety of industries to determine whether the transactions in substance involved solely the sale of a service, or whether the transactions involved the sale of both a service and merchandise. Those cases are not readily reconcilable and underscore the fact-intense nature of this inquiry. We have not, however, explored this issue in the context of the health care industry and have never had a situation where, as here, applicable laws would prohibit the taxpayer from selling the items in issue without provision of the attendant service.
We find the instant setting distinguishable from the settings of those cases in which we have held that goods utilized by a service provider were merchandise for purposes of the inventory rules. We give significance to the uniqueness of the industry in which petitioner operates in relation to the other service industries we have addressed on this issue and bear in mind the recent case of Hospital Corp. of Am. v. Commissioner, 107 T.C. 116, 143-145 (1996). There, as explained in more detail below, we held that the income attributable to the pharmaceuticals and various medical supplies frequently used by the personnel of the taxpayer/hospital while performing medical services was not income from the sale of goods for purposes of the non-accrual-experience method of section 448(d)(5). We held that those items were "inseparably connected" to the taxpayer's services. See id. at 143.
Like the taxpayer in HCA, petitioner's business is a quintessential service business. It is a health care provider that administers chemotherapy treatments to patients with cancer. Although it furnishes chemotherapy drugs to its patients as part of its service, a person cannot obtain the drugs but for the chemotherapy treatments, and the treatments require the extensive and specialized service of petitioner's professional staff. Petitioner's professional staff, as an integral and indispensable part of furnishing chemotherapy drugs to a patient, must examine the patient and prescribe a treatment regime; monitor the length, kind, quantity, and frequency of the treatments; and reevaluate the patient on an ongoing basis. That these services are critical and essential to the furnishing of the chemotherapy drugs by petitioner's staff cannot be denied.
Petitioner is not a merchandiser. Although it is true that petitioner transfers the tangible quality of the chemotherapy drugs to its patients when it administers the drugs to them, petitioner does so only as an integral and inseparable part of its service. Petitioner is precluded by law from selling the chemotherapy drugs to any person without providing the medical service, and the drugs are not susceptible of self-administration. In fact, the only way that a person may legally receive the chemotherapy drugs from petitioner is to agree to petitioner's overall chemotherapy service, ánd, when they do agree to this service, they have no say in the type or quantity of chemotherapy drugs which petitioner uses in their care. Usually, they are not even aware of the type or quantity of chemotherapy drugs used on them as part of their treatment. Where, as here, the service provider dispenses the drugs as an indispensable and inseparable part of the rendering of its services, the service provider is not selling "merchandise". The service provider is using the items as supplies which are essential to the provision of its services. A medical practice such as petitioner's is inherently a service business, and the drugs administered in the practice are subordinate to the provision of the medical services.
We disagree with respondent's contention that "The traiis-fer of the drugs is clearly a commercial transaction" to the extent he implies a commercial transaction is the conveyance of merchandise. Given the nature of the services petitioner provides and the substance of the service transactions, we are convinced petitioner is not selling merchandise when it administers chemotherapy drugs. The case of Abbott Labs. v. Portland Retail Druggists Association, Inc., 425 U.S. 1 (1976), parallels that conviction. There, the Supreme Court decided whether drugs purchased by a nonprofit hospital at prices lower than those charged commercial pharmacists were exempt from the anti-price-discrimination provisions of the Robinson-Patman Antidiscrimination Act, ch. 592, 49 Stat. 1526 (1936), current version at 15 U.S.C. sec. 13(a) (1994). The exemption generally applies where the nonprofit institution is purchasing the drugs for its "own use" as opposed to sale to patients. In siding with the hospital's contention that it was exempt, the Court stated:
it seems to us to be very clear that a hospital's purchase of pharmaceutical products that are dispensed to and consumed by a patient on the hospital premises, whether that patient is bedded, or is seen in the emergency facility, or is only an outpatient, is a purchase of supplies for the hospital's "own use," . In our view, this is so clear that it needs no further explication. [Abbott Labs. v. Portland Retail Druggists Association, supra at 10-11; emphasis added.]
This Court has also stated similarly. See St. Luke's Hosp. v. Commissioner, 35 T.C. 236, 238 (1960), wherein the Court stated that the taxpayer hospital was "not a merchandising business, and has no merchandise inventories which would require the use of an accrual method in keeping its books or reporting its income. Its income is derived from providing hospital and professional care to the sick."
Respondent's characterization of the chemotherapy drugs as merchandise offends the natural and ordinary meaning of the term "merchandise". The word "merchandise" denotes commodities or goods that are bought and sold in business. See Merriam Webster's Collegiate Dictionary 727 (10th ed. 1996). Although pharmaceuticals could reasonably be construed to be merchandise in some contexts, e.g., when purchased at a grocery store for self-administration at home, it does not necessarily follow that pharmaceuticals are merchandise in all contexts. The latter proposition is especially true under the facts at hand where petitioner's patients generally cannot be understood to consider themselves as purchasers of "merchandise" during the course of their medical treatment. The chemotherapy drugs are administered by petitioner's trained, licensed, and specialized physicians and other health-related professionals during the rendition of a unique medical service, and, when administered, the drugs are not "goods [that were] purchased in condition for sale" or "articles of commerce held for sale." Simply put, petitioner is not peddling products.
Respondent looks to the value of the chemotherapy drugs and asserts that petitioner's business is part service, part sale. We disagree. The mere fact that the chemotherapy drugs are expensive is insufficient to transmute the transaction from the sale of a service to the sale of merchandise and a service. The common denominator that the items be held for sale is lacking on these facts. Petitioner's chemotherapy treatment business is a pure service business and not, as respondent asserts, a mixed service and merchandising business. See, e.g., Hewlett-Packard Co. v. United States, 71 F.3d 398 (Fed. Cir. 1995) (taxpayer's computer maintenance business was a service business, not mixed service and merchandise business, despite installation of parts); Honeywell, Inc. v. Commissioner, T.C. Memo. 1992-453 (taxpayer's computer maintenance business was a service business, not mixed service and merchandise business, despite installation of parts), affd. without published opinion 27 F.3d 571 (8th Cir. 1994).
We find no cases on this issue analogous, much less controlling. The reported authorities, including those cases where the court found that the merchandise at issue there was sold either with or without a service, are all materially distinguishable from the facts herein given the uniqueness of the service provided. Respondent relies on the seminal case of Wilkinson-Beane, Inc. v. Commissioner, 420 F.2d 352 (1st Cir. 1970), affg. T.C. Memo. 1969-79. There, the taxpayer was an undertaker that sold caskets as part of its funeral service. In finding that the caskets were merchandise for purposes of section 471, the Court of Appeals for the First Circuit noted that the taxpayer normally kept an inventory of some 35 caskets, that the caskets were not necessarily used during the year but were purchased and occasionally carried for long periods of time, that the caskets were on display and played a central role in the "sale" of the taxpayer's service, and that there was a direct relationship between the magnificence of the caskets and the cost of the service. See id.
Those factors are not present here. Petitioner kept no more than a 2-week supply of chemotherapy drugs on hand and used virtually all the drugs during the taxable year. The drugs also were not displayed to patients for selection, and patients played no role in determining the type or amount of drugs used on them. Furthermore, unlike the taxpayer's business in Wilkinson-Beane, Inc., the type of chemotherapy drugs or the "magnificence" thereof played no role in whether patients chose to purchase petitioner's services. The variable factor in the cost of a patient's treatment is a factor out of the patient's control; i.e., the type and severity of the patient's condition. We also find it critical that a person is unable to obtain the chemotherapy drugs without purchasing petitioner's service. We find nothing in the case of Wilkinson-Beane, Inc. that would cause us to believe that the taxpayer's services there depended on the purchase of caskets from it. Instead, the taxpayer in Wilkinson-Beane, Inc., by choice, sold the funeral services and caskets as a package.
Respondent also relies on Knight-Ridder Newspapers, Inc. v. United States, 743 F.2d 781 (11th Cir. 1984). There, the Court of Appeals for the Eleventh Circuit considered whether the taxpayer, who produced and sold newspapers, was required to keep inventories. The taxpayer argued that it was a service business in that it provided information for its readership and advertisement for its clients. The court found that even though the taxpayer sold an extremely perishable commodity (a 2-day-old newspaper is stale) and had no inventory of finished goods, the taxpayer was required to account for inventories because the newspapers were merchandise and there was a significant fluctuation of newsprint and ink on hand.
The facts of Knight-Ridder Newspapers, Inc. v. United States, supra, are materially distinguishable from the facts at hand. In contrast to the instant case, the taxpayer in Knight-Ridder Newspapers clearly manufactured a product (newspapers) and used raw materials (paper and ink) in the manufacturing process. We, like the Court of Appeals for the Eleventh Circuit, find unconvincing the taxpayer's argument that the readership was purchasing a service.
We also find the facts herein to be markedly different from the facts presented in the various cases on this issue involving contractors and subcontractors. In all of those cases where we found the taxpayer was selling merchandise, the contractor's services involved installation of products and the customers came to the contractors to purchase the products as well as the installation services. See, e.g., Thompson Elec., Inc. v. Commissioner, T.C. Memo. 1995-292 (taxpayer was selling merchandise in connection with a service when he installed wiring, conduits, electrical panels, and lighting fixtures); J.P. Sheahan Associates, Inc. v. Commissioner, T.C. Memo. 1992-239 (contractor's roofing materials were merchandise); Surtronics, Inc. v. Commissioner, T.C. Memo. 1985-277 (electroplating metals were merchandise). The customers of the taxpayers also could have personally purchased the merchandise elsewhere and either installed the merchandise themselves, if they had the time and expertise to do so, or contracted with a third party to install the merchandise for them. In the instant case, by contrast, persons seeking chemotherapy treatment may not buy the drugs elsewhere, and they may not apply the drugs themselves.
Respondent unduly focuses on the fact that petitioner listed on the bills submitted to Medicare and private insurers the types and amounts of chemotherapy drugs used on its patients but did not itemize the less expensive supplies. While we agree with respondent that the itemization of the drugs on the bills is a fact properly considered, see, e.g., Thompson Elec., Inc. v. Commissioner, supra, we disagree with respondent that it is dispositive of the issue. The substance of the transactions at issue is that a service is provided by and purchased from petitioner. Petitioner and other health care providers today must operate under a myriad of statutory, regulatory, and contractual mandates the purpose of which is aimed at management of care and cost containment in the health care industry. See, e.g., 42 U.S.C. secs. 1395 through 1395ccc (1994); 42 C.F.R. secs. 405.201 through 405.2470 (1998); Health Care Finance Administration, Medicare Provider Reimbursement Manual (Pubs. 15-1 and 15-2) (Rev. 3-93). Undoubtedly, as the costs of medical supplies increase, so do the regulatory and contractual directives for itemization and justification. There is no evidence petitioner provided those itemizations for merchantable purposes or because it was selling merchandise. Rather, the manner and form in which petitioner prepares its bills are dictated by applicable laws, contracts with private insurers, and the environment of the industry in which it operates. We decline to attach further accounting or other significance thereto.
Our declining to attach accounting significance to the bills is supported by Federal Medicare statutes and regulations. As stipulated by the parties, the chemotherapy treatments and drugs at issue are covered by Medicare. Medicare covers only medical "services" and does not cover prescription drugs that can be self-administered. See 42 C.F.R. sec. 410.29 (1998). In creating legislative coverage for medical services, Congress was astutely aware that health care providers may need to use supplies or administer drugs incident to and as an integral part of their services. As pertinent, the Health Insurance for Aged Act, Pub. L. 89-97, sec. 1861, 79 Stat. 291, 321 (1965), current version at 42 U.S.C. sec. 1395x(s) (1994), provides as follows:
The term "medical and other health services" means any of the following items or services:
(1) physicians' services;
(2)(A) services and supplies (including drugs and biologicals which cannot, as determined in accordance with regulations, be self-administered) furnished as an incident to a physician's professional service, of kinds which are commonly furnished in physicians' offices and are commonly either rendered without charge or included in the physicians' bills.
The chemotherapy treatments administered by petitioner, including the chemotherapy drugs, are considered part of the medical service under Medicare and are within the scope of Medicare's coverage. Congress explicitly provided that charging for the drugs on the bill does not change the nature of the transaction from the provision of a covered "service" to the sale of noncovered prescription drugs. See 42 U.S.C. sec. 1395x(s) (1994); see also 42 C.F.R. secs. 410.10, 410.26, 410.27 (1998).
Respondent is also unduly impressed by the fact that petitioner's physicians do not administer the treatments and are generally not present when treatments are administered by oncology nurses. This is irrelevant to the inquiry of whether petitioner is selling a service or a service and merchandise, and we place no significance on it. We disagree with respondent's likening the facts herein to "prescription drugs in a drug store — drugs which are clearly merchandise requiring the use of inventories." When a drug store sells drugs, there is little if any specialized and personalized service element attendant to the sale. Respondent's analogy is flawed.
Respondent argues the chemotherapy drugs comprised 26 percent of petitioner's gross receipts, that the drugs are billed to responsible parties at 1.5 times the AWP, and that the cost of the chemotherapy drugs was dramatically higher than the cost of other supplies. These factors go to whether the sale of the "merchandise" is an income-producing factor. Without addressing the merits of these arguments, we do not interpret section 1.471-1, Income Tax Regs., to require that if a material is an income-producing factor it must, per se, be "merchandise". The section provides that "inventories are necessary in every case in which the production, purchase, or sale of merchandise is an income-producing factor". See sec. 1.471-1, Income Tax Regs. Because we conclude that the chemotherapy drugs used in the administration of the chemotherapy treatments are not merchandise, we need not and do not reach the question of whether merchandise is an income-producing factor in petitioner's business.
As mentioned above, our conclusion parallels our holding in Hospital Corp. of Am. v. Commissioner, 107 T.C. 116 (1996), where the hospital's professional staff frequently used pharmaceuticals and medical supplies to provide medical care to patients. The Commissioner argued in that case that the income attributable to the pharmaceuticals and supplies could not be reported using the nonaccrual-experience method of section 448(d)(5) because the income was attributable to the sale of "goods". Hospital Corp. of Am. v. Commissioner, 107 T.C. at 141. Under that method, an accrual method taxpayer need not accrue amounts to be received for the performance of services that, on the basis of experience, will not be collected. See sec. 448(d)(5). The non-accrual-experience method may not be used to the extent amounts are attributable to a "taxpayer's activities with respect to selling goods". Sec. 1.448-2T(d), Temporary Income Tax Regs., 52 Fed. Reg. 22775 (June 16, 1987).
We held in HCA that the taxpayer's income attributable to the pharmaceuticals and medical supplies was service income because it was "inseparably connected" to the performance of services. Hospital Corp. of Am. v. Commissioner, 107 T.C. at 143. Consistent with that holding, the income that petitioner earned here from its use of the chemotherapy drugs must also be considered service income. Service income, by definition, does not include income from the sale of goods. See, e.g., sec. 1.448-2T(d), Temporary Income Tax Regs., 52 Fed. Reg. 22775 (June 16, 1987). The logical conclusion is that the underlying items giving rise to service income also are not "merchandise". As we discussed above, the meaning of the word "merchandise" is no broader than the meaning of the word "goods", and, if anything, the word "merchandise" is a subset of the word "goods". As a matter of fact, not even respondent has argued that an item can be "merchandise" for one purpose of the Code but not a "good" for a different purpose. Nor has respondent argued that an item the income from which may be reported on the non-accrual-experience method may be inventory for purposes of section 471.
The notice of deficiency is worded broadly as to the specific basis for respondent's determination that the cash method does not clearly reflect petitioner's income. On brief, however, respondent's argument as to why petitioner's use of the cash method does not clearly reflect income articulates that the chemotherapy drugs are merchandise that must be inventoried. Respondent does not dispute that petitioner's use of the cash method clearly reflects income to the extent that the chemotherapy drugs are not merchandise. We need not and do not engage in further analysis of the clear reflection of income standard of section 446. See Concord Consumers Housing v. Commissioner, 89 T.C. 105, 106 n.3 (1987); Estate of Fusz v. Commissioner, 46 T.C. 214, 215 n.2 (1966). Based on the foregoing, we hold that respondent abused his discretion in requiring petitioner to use the hybrid method and that petitioner may report all its income and expenses under the cash method.
We have considered all arguments in this case for a contrary holding and, to the extent not discussed above, find those arguments to be without merit or irrelevant. To reflect the foregoing,
Decision will be entered for petitioner.
Reviewed by the Court.
Chabot, Parr, Wells, Colvin, Beghe, Foley, Vasquez, Gale, and Thornton, JJ., agree with this majority opinion.
Marvel, J., concurs in the result only.
Ruwe, J., dissents.
See Health Insurance for the Aged Act, Pub. L. 89-97, 79 Stat. 291 (1965), currently codified at 42 U.S.C. secs. 1395 through 1395ccc (1994).
Sec. 446 provides in pertinent part:
SEC. 446. GENERAL RULE FOR METHODS OF ACCOUNTING.
(a) General Rule.' — Taxable income shall be computed under the method of accounting on the basis of which the taxpayer regularly computes his income in keeping his books.
(b) Exceptions. — If no method of accounting has been regularly used by the taxpayer, or if the method used does not clearly reflect income, the computation of taxable income shall be made under such method as, in the opinion of the Secretary, does clearly reflect income.
(c) Permissible Methods. — Subject to the provisions of subsections (a) and (b), a taxpayer may compute taxable income under any of the following methods of accounting—
(1) the cash receipts and disbursements method;
(2) an accrual method;
(3) any other method permitted by this chapter; or
(4) any combination of the foregoing methods permitted under regulations prescribed by the Secretary.
See, e.g., Addison Distrib., Inc. v. Commissioner, T.C. Memo. 1998-289 (electronic materials were merchandise); Thompson Elec., Inc. v. Commissioner, T.C. Memo. 1995-292 (electrical contractor's wire, conduit, and electrical panels were merchandise); Honeywell Inc. v. Commissioner, T.C. Memo. 1992-453 (rotable spare parts used in maintenance service business were not merchandise; Court rejected argument that taxpayer's "consideration" of the parts' cost to set its fixed fee established that the parts were acquired and held for sale), affd. without published opinion 27 F.3d 571 (8th Cir. 1994); J.P. Sheahan Associates, Inc. v. Commissioner, T.C. Memo. 1992—239 (contractor's roofing materials were merchandise); Surtronics, Inc. v. Commissioner, T.C. Memo. 1985-277 (electroplating metals were merchandise); Wilkinson-Beane, Inc. v. Commissioner, T.C. Memo. 1969-79 (funeral business' caskets were merchandise), affd. 420 F.2d 352 (1st Cir. 1970).
The medical supplies included items such as radiological dyes, casts, crutches, canes, walkers, bandages, sutures, splints, skin staples, various implants such as joint replacements, pacemakers, heart valves, orthopedic devices, and physical and occupational therapy items.
This is true for the fee-for-service statutory coverage under Medicare. The Secretary of Health and Human Services may contract with private insurers (health maintenance organizations) to provide benefits to beneficiaries under Medicare. See Health Insurance for Aged Act, Pub. L. 89-97, 79 Stat. 291 (1965), 42 U.S.C. sec. 1395mm (1994). The beneficiaries that opt for coverage under a health maintenance organization plan may have prescription drug coverage under their contract with the insurer.
We are mindful of Asphalt Prods. Co. v. Commissioner, 796 F.2d 843 (6th Cir. 1986), affg. in part and revg. in part Akers v. Commissioner, T.C. Memo. 1984—208, revd. on another issue 482 U.S. 117 (1987), wherein the Court of Appeals for the Sixth Circuit held that the taxpayer's method of accounting did not clearly reflect its income. The setting of Asphalt Prods. Co. is distinguishable from the setting at hand. The issue there was not the issue before us today; i.e., whether the furnishing of pharmaceuticals by a medical treatment facility as an integral, indispensable, and inseparable part of the rendering of medical services is the sale of "merchandise" for purposes of sec. 1.471-1, Income Tax Regs. That case also involved primarily a significant accumulation of accounts receivable at yearend and neither involved nor addressed whether the disputed items of inventory (asphalt) were merchandise in the first place.