Notice 2005-4, Fuel Tax Guidance, as modified

OMB No. 1545-1915
Model
(1)Waiver
Tax was

imposed on the diesel fuel
or kerosene under § 4081;
(2) The claimant sold the diesel fuel or
kerosene to the ultimate purchaser for use
in intercity bus transportation;
(3) The claimant is a registered ultimate
vendor;
(4) The ultimate purchaser has waived
the right to payment as provided in paragraph (f) of this section; and
(5) The claimant has filed a timely
claim for a credit or payment and the
claim contains all of the information required in paragraph (e) of this section.
(d) Form of claim. A claim under
§ 6427(b)(4) for a payment is made on
Form 8849, Claim for Refund of Excise
Taxes, and a claim under § 6427(b)(4)
for an income tax credit is made on Form
4136, Credit for Federal Tax Paid on Fuels.

(e) Content of claim. Each claim for a
credit or payment under § 6427(b)(4) must
contain the following information with respect to the diesel fuel or kerosene covered
by the claim:
(1) The total number of gallons.
(2) The claimant’s registration number.
(3) A statement that the claimant—
(i) Has not included the amount of the
tax in its sales price of the diesel fuel or
kerosene and has not collected the amount
of tax from its buyer;
(ii) Has repaid the amount of the tax to
the ultimate purchaser of the fuel; or
(iii) Has obtained the written consent of
its buyer to allowance of the claim.
(4) A certification that the claimant has
in its possession an unexpired waiver described in paragraph (f) of this section and
has no reason to believe any information in
the waiver is false.

(f) Waiver—(1) In general. The ultimate purchaser waives its right to credit
or payment for purposes of § 6427(b)(4)
by providing a statement that is signed under penalties of perjury by a person with
authority to bind the ultimate purchaser,
is in substantially the same form as the
model waiver in paragraph (f)(2) of this
section, and contains all of the information
necessary to complete such model waiver.
A new waiver must be given if any information in the current waiver changes.
The claimant must have the waiver at the
time the credit or payment is claimed under
§ 6427(b)(4). The waiver may be included
as part of any business records normally
used to document a sale. The waiver expires on the earlier of the following dates:
(i) The date one year after the effective
date of the waiver.
(ii) The date a new waiver is provided.
(2) Model waiver.

WAIVER FOR USE BY ULTIMATE PURCHASERS OF DIESEL FUEL OR
KEROSENE USED IN INTERCITY BUS TRANSPORTATION
(To support vendor’s claim for a credit or payment under § 6427 of the Internal Revenue Code.)

Name, address, and employer identification number of ultimate vendor
The undersigned ultimate purchaser (“Buyer”) hereby certifies the following under the penalties of perjury:
The diesel fuel or kerosene to which this waiver relates is purchased for use in intercity bus transportation.
This waiver applies to the following (complete as applicable):
This is a single purchase waiver:
1.

Invoice or delivery ticket number

2.

Number of gallons

This is a waiver covering all purchases under a specified account or order number:
1. Effective date
2. Expiration date

(period not to exceed 1 year after the effective date)

3. Buyer account number
Buyer will provide a new waiver to the vendor if any information in this waiver changes.
If Buyer uses the diesel fuel or kerosene to which this waiver relates for a use other than in intercity bus transportation,
Buyer will be liable for tax.
Buyer understands that by signing this waiver, Buyer gives up its right to claim any credit or payment for diesel fuel or
kerosene used in intercity bus transportation during the period indicated.
Buyer acknowledges that it has not and will not claim any credit or payment for the diesel fuel or kerosene to which
this waiver relates.

2005–2 I.R.B.

298

January 10, 2005

Buyer understands that the fraudulent use of this waiver may subject Buyer and all parties making such fraudulent use of
this waiver to a fine or imprisonment, or both, together with the costs of prosecution.
Printed or typed name of person signing
Title of person signing
Name of Buyer
Employer identification number
Address of Buyer
Signature and date signed
(g) Registration—(1) In general. Application for registration as a registered
ultimate vendor of diesel fuel or kerosene
used in intercity bus transportation is made
on Form 637, Application for Registration
(For Certain Excise Tax Activities), in
accordance with the instructions for that
form. A person that is registered under § 4101 under Activity Letter “UV” is
treated as registered for purposes of claims
with respect to diesel fuel or kerosene used
in intercity bus transportation for claims
filed before July 1, 2005.
(2) Requirements. The Service will register an applicant as an ultimate vendor of
diesel fuel or kerosene used in intercity bus
transportation only if the Service—
(i) Determines that the applicant is, in
the course of its trade or business, regularly engaged as a seller of diesel fuel
or kerosene for use in intercity bus transportation or is likely to become so engaged
within a reasonable time after being registered under § 4101; and
(ii) Is satisfied with the filing, deposit, payment, reporting, and claim history for all federal taxes of the applicant
and any related person (as defined in
§ 48.4101–1(b)(5)).
Section 6. DISPLAY OF
REGISTRATION
Section 4101 provides that every operator of a vessel required to register must display proof of registration through an identification device prescribed by the Secretary on each vessel used by the operator to
transport any taxable fuel. Section 6718
imposes a penalty on vessel operators who

January 10, 2005

fail to display proof of registration. This
notice does not prescribe the identification
device that must be displayed. The identification device and the manner of its display will be prescribed in subsequent guidance. No penalty will be imposed on a registered operator under § 6718 with respect
to any failure to display proof of registration occurring before the effective date of
such guidance, and the effective date of the
guidance will be after the date it is issued.
Section 7. GASOLINE; CLAIMS BY
REGISTERED ULTIMATE VENDORS
(a) Overview—(1) Claims by the person
that paid the tax—(i) In general. Section
6416(b)(2) generally provides that the tax
paid on gasoline is deemed to be an overpayment if the gasoline was sold to a state
for its exclusive use or to a nonprofit educational organization for its exclusive use.
Section 6402(a) generally allows credits or
refunds of overpayments to the person that
made the overpayment (that is, the person
that paid the tax to the government). Section 6416(a)(4) provides that the ultimate
vendor of the gasoline is treated as the person (and the only person) that paid the tax,
but only if such ultimate vendor is registered under § 4101. Thus, if the ultimate
vendor is not registered as described in this
section, then the person that actually paid
the tax to the government may make the
claim allowed by § 6416(b)(2). Guidance
for claims by the person that actually paid
the tax is set forth in §§ 48.6416(a)–3(b)
and 48.6416(b)(2)–3. Guidance for claims
by the person that is treated as having paid
the tax (that is, the registered ultimate ven-

299

dor) is set forth in this section. As noted
in section 11 of this notice, Notice 89–29,
1989–1 C.B. 669, which provided guidance under former § 6416(a)(4), is obsolete.
(ii) Sales on oil company credit cards.
Under the rules in effect prior to 2005, a
sale charged on an oil company credit card
issued to an exempt person is not considered a direct sale by the person actually
selling the gasoline to the ultimate purchaser (i.e., the person selling the gasoline
is not the ultimate vendor) if the person
actually selling the gasoline receives a reimbursement from the oil company based
on a price that excludes the tax. Treasury
and the Service are considering whether
this rule has continuing applicability under new § 6416(a)(4) but, while considering the issue, will continue generally to
apply the rule with respect to sales before March 1, 2005. Therefore, in the
case of a sale of gasoline before March 1,
2005, on an oil company credit card issued to a state or nonprofit educational organization, the person that actually paid
the tax is treated as the only person eligible to make the claim under §§ 6402
and 6416. As noted in paragraph (a)(1)(i)
of this section, these claims must be in
accordance with §§ 48.6416(a)–3(b) and
48.6416(b)(2)–3. If Treasury and the Service determine that the oil company credit
card rule does not have continued application after February 28, 2005, commentators have suggested that persons paying
the tax on gasoline (position holders) will
find it difficult to determine whether they
or the ultimate vendors of the gasoline are
eligible for refunds. This, in turn, could re-

2005–2 I.R.B.