Notice 2005-80

DRAFTING INFORMATION
The principal author of this notice
is Barbara B. Franklin of the Office of
Associate Chief Counsel (Passthroughs
and Special Industries). For further information regarding this notice, contact
Cynthia A. McGreevy at (202) 622–3130
(not a toll-free call).

Excise Tax Changes Under
SAFETEA and the Energy Act;
Dye Injection
Notice 2005–80
Section 1. PURPOSE
This notice modifies Notice 2005–4,
2005–2 I.R.B. 289, as modified by Notice
2005–24, 2005–12 I.R.B. 757, and Notice 2005–62, 2005–35 I.R.B. 443 (Notice
2005–4), by providing guidance on certain excise tax provisions in the Internal
Revenue Code (Code) that were added
or affected by the Energy Policy Act of
2005 (Pub. L. 109–58) (Energy Act) and
the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for
Users (Pub. L. 109–59) (SAFETEA).
These provisions relate to the Leaking
Underground Storage Tank Trust Fund
(LUST) tax, treatment of kerosene for use
in aviation, credit card sales of taxable fuel
to certain exempt entities, and diesel-water
fuel emulsions. This notice also provides
additional guidance relating to mechanical
dye injection of diesel fuel and kerosene.
Notice 2005–4 provides guidance on
certain excise tax provisions in the Code
that were added or affected by the American Jobs Creation Act of 2004 (Pub. L.
108–357) (AJCA).
Except as provided in sections 4 and 5,
references to Code provisions in this notice are to the Code as in effect on October 1, 2005. References to regulations are
to the Manufacturers and Retailers Excise
Tax Regulations.
Section 2. LUST
(a) In general—(1) This section describes the changes made by § 1362 of the
Energy Act to the LUST tax.
(2) Except as provided in paragraph
(b) of this section, tax is imposed at the
LUST financing rate of $0.001 per gallon

November 14, 2005

on removals, entries, and sales of gasoline,
diesel fuel, and kerosene that are described
as exempt transactions in §§ 48.4081–4(b)
and (d) (relating to certain uses of gasoline blendstocks), 48.4082–1 (relating to
dyed fuel), 48.4082–5 (relating to diesel
fuel and kerosene in Alaska), 48.4082–7
(relating to kerosene used for feedstock
purposes), and § 4 of Notice 2005–4 (relating to kerosene used in aircraft). Thus,
for example, the LUST tax applies to
removals of dyed diesel fuel for use as
heating oil or use on a farm for farming
purposes and to removals of kerosene for
use in foreign trade or in military aircraft.
(3) Section 6430 of the Code provides
that no refund, credit, or payment under
§§ 6411–6430 shall be made for the LUST
tax, except in the case of fuels destined for
export.
(4) Under this notice, the position
holder is liable for the LUST tax imposed
on removals of kerosene directly into the
fuel supply tank of an aircraft for a use
exempt from tax under § 4041(c). See
§ 3(c)(1)(iii) of this notice. Thus, for example, for kerosene removed directly into
the fuel tank of an aircraft for use in foreign trade or for use in military aircraft, the
position holder is liable for tax of $0.001
per gallon. For kerosene removed directly
into the fuel tank of an aircraft for use in
commercial aviation other than foreign
trade, the aircraft operator continues to
be liable for tax of $0.044 per gallon (the
sum of the $0.043-per-gallon rate under
§ 4081(a)(2)(C) and the $0.001-per-gallon
LUST tax). See § 4(d) of Notice 2005–4
(relating to § 4081(a)(4)).
(b) Removals for export—(1) In general. The LUST tax is not imposed on
the removal, entry, or sale of diesel fuel or
kerosene for export if—
(i) The conditions of § 48.4082–1 (relating to the exemption for dyed fuel) are
met; and
(ii) The person otherwise liable for tax
has an unexpired export certificate (described in paragraph (b)(2) of this section)
from the buyer of the fuel and has no reason to believe any information in the certificate is false.
(2) Export certificate. The export certificate is a statement that is signed under
penalties of perjury by a person with authority to bind the buyer and contains—
(i) The name, address, and employer
identification number of the buyer;

953

(ii) The name, address, and employer
identification number of the person otherwise liable for tax;
(iii) The number of gallons and type of
fuel; and
(iv) A statement that the fuel is for export.
(c) Effective date. This section is effective October 1, 2005.
Section 3. TREATMENT OF
KEROSENE FOR USE IN AVIATION
(a) Overview.
This section describes the changes made by § 11161
of SAFETEA to the tax on kerosene used
in aviation. Section 4 of Notice 2005–4
is modified in accordance with these
changes, as explained in this section.
(b) Kerosene for use in aviation.
SAFETEA replaced the $0.219-per-gallon tax on “aviation-grade kerosene” with
rules taxing all “kerosene” at a rate of
$0.244 per gallon unless a reduced rate
applies as described in paragraph (c) of
this section. “Kerosene” has the meaning
given to the term by § 48.4081–1(b).
(c) Reduced rates of tax on kerosene
used in aviation—(1) In general—(i) For
kerosene removed directly from a terminal into the fuel tank of an aircraft for
use in noncommercial aviation, the rate
of tax is $0.219 per gallon. See section
4081(a)(2)(C)(ii), as added by SAFETEA.
Except as provided in paragraph (c)(1)(ii)
or (iii) of this section, a tax rate of $0.219
per gallon also applies if kerosene is removed into any aircraft from a refueler
truck, tanker, or tank wagon that is loaded
with kerosene from a terminal that is located within an airport (without regard to
whether the terminal is located within a
secured area of an airport) and the other
requirements of § 4081(a)(3)(A) and (B)
are met. Section 4081(a)(3). The other
requirements of § 4081(a)(3)(A) and (B)
relate to the characteristics of the refueler
trucks, tankers, and tank wagons, the fueling operations at the terminal, and the restriction against loading kerosene into vehicles registered for highway use at such
terminal.
(ii) For kerosene removed directly into
the fuel tank of an aircraft for use in commercial aviation, the rate of tax is $0.044
per gallon and the rules relating to refueler
trucks, tankers, and tank wagons at secured
airport terminals were not affected by the

2005–46 I.R.B.

SAFETEA changes. Thus, in the case
of kerosene removed into an aircraft from
a refueler truck, tanker or tank wagon,
the $0.044 rate applies only if the truck,
tanker, or tank wagon is loaded at a terminal located in a secured area of the airport.
See § 4(d) of Notice 2005–4.
(iii) For kerosene removed directly into
the fuel tank of an aircraft for a use exempt
from tax under § 4041(c) (such as use in
foreign trade or in an aircraft for the exclusive use of a state or local government),
including removals from a qualifying refueler truck, tanker, or tank wagon loaded at
a terminal located within a secured area of
an airport, the rate of tax is $0.001 per gallon.
(2) Secured airport terminals. The
list of qualifying airport terminals located
within secured areas of airports identified in § 4(d)(2)(ii) of Notice 2005–4 is
modified by adding the following airport terminals: Los Angeles International
Airport, T–95–CA–4812; and Federal
Express Corporation Memphis Airport,
T–62–TN–2220.
(3) Exigent circumstances—(i) Section
4081(a)(3)(A)(iv) provides that, except in
the case of exigent circumstances identified by the Secretary in regulations, the
rule treating refueler trucks, tankers, and
tank wagons as part of a terminal located
within an airport applies only if no vehicle
registered for highway use is loaded with
kerosene at the terminal. If, in such exigent circumstances, a highway vehicle is
loaded with kerosene at a terminal located
within an airport, tax is imposed on the removal at a rate of $0.244 per gallon.
(ii) This notice identifies as an exigent circumstance the refueling of the
off-airport storage tanks used exclusively
by the governmental public safety agencies in Oahu. Accordingly, kerosene may
be removed from the terminal located
within Honolulu International Airport,
T–91–HI–4570, into a vehicle registered
for highway use for this purpose only
without affecting the treatment of refueler
trucks, tankers, and tank wagons as part of
the terminal.
(iii) This notice identifies as an exigent
circumstance the fuel shortages caused
by Hurricane Katrina and its aftermath.
Accordingly, kerosene may be removed at
the following terminals into vehicles registered for highway use without affecting the
treatment of refueler trucks, tankers, and

2005–46 I.R.B.

tank wagons as part of the terminal. Effective September 2, 2005 and remaining in
effect through November 1, 2005: Louis
Armstrong New Orleans International
Airport, T–72–LA–2356; Memphis International Airport, T–62–TN–2212; Dallas Love Field Airport, T–75–TX–2663;
Dallas Fort Worth International Airport, T–75–TX–2673;
and George
Bush Intercontinental Airport, Houston, T–76–TX–2818. See IR–2005–95
(September 7, 2005).
Effective October 1, 2005 and remaining in effect
through November 1, 2005: Federal
Express Corporation Memphis Airport,
T–62–TN–2220.
(d) Full rate buyers. The registration
requirement for full rate buyers in sections
4(f)(3) and (4) of Notice 2005–4 is not
applicable after September 30, 2005.
(e) Claims for kerosene used in commercial aviation (other than foreign
trade)—(1) Before October 1, 2005,
§ 6427(l)(4)(B) provided that if an ultimate purchaser of aviation-grade kerosene
used for a nontaxable use waived its right
to an income tax credit or payment, in
the form and manner prescribed by the
Secretary, and assigned such right to
the registered ultimate vendor, then the
ultimate vendor, and not the ultimate purchaser, could claim a payment or income
tax credit. Section 4(h) of Notice 2005–4
provides rules regarding the conditions to
allowance of a credit or payment, the form
of the claim, the content of the claim, and
a model waiver. Before October 1, 2005,
these rules were applicable with respect to
aviation-grade kerosene used in domestic
commercial aviation and aviation-grade
kerosene used in foreign trade, for export,
for use in certain helicopter and fixed-wing
air ambulance uses, for the exclusive use
of a nonprofit educational organization,
for use in an aircraft owned by an aircraft
museum, for use in a military aircraft, and
for other nontaxable uses such as use as
heating oil.
(2) Effective October 1, 2005, the rules
in § 4(h) of Notice 2005–4 are applicable
only with respect to kerosene used in commercial aviation (as defined in § 4083(b))
and, even in the case of commercial aviation, the rules do not apply to kerosene
used as supplies for vessels or aircraft
within the meaning of § 4221(d)(3). Thus,
after September 30, 2005, an aircraft operator may continue to claim a credit or

954

payment for kerosene used in domestic
commercial aviation or may waive such
right to the ultimate vendor, but the operator may not claim a credit or payment
under § 6427(l)(4)(B) for fuel used in foreign trade or other nontaxable uses.
(3) If an aircraft operator buys kerosene
partly for use in commercial aviation and
partly for use in noncommercial aviation,
the following rules apply:
(i) The operator may identify, either
at the time of the purchase or after the
kerosene has been used, the amount of
kerosene that will be (or has been) used
in commercial aviation and either claim or
waive the right to any credit or payment
under paragraph (e)(2) of this notice with
respect to such kerosene. The credit or
payment related to the amount that will be
(or has been) used in noncommercial aviation may be claimed under paragraph (f)
of this section (relating to use in noncommercial aviation).
(ii) Alternatively, if the operator does
not identify the amount of kerosene that
will be (or has been) used in commercial
aviation, the operator may provide a certificate under paragraph (f) of this section
with respect to the kerosene (including the
portion of the kerosene that will (or may)
be used in commercial aviation). In such
a case, “for a nonexempt use in noncommercial aviation” should be checked on
the certificate. To the extent the kerosene
purchased under the certificate is used in
commercial aviation, the certificate will be
treated, in the case of kerosene taxed at a
rate of $0.244 per gallon, as a waiver of
the right to claim a credit or payment under paragraph (e)(2) of this section with respect to $0.025 of the tax imposed on such
kerosene. The operator may claim the remainder of the income tax credit or payment ($0.175 per gallon) with respect to
such kerosene but may not waive the right
to the credit or payment after providing a
certificate with respect to the kerosene under paragraph (f) of this section.
(f) Claims for kerosene used in noncommercial aviation and foreign trade—(1) In
general. Under § 6427(l)(5)(B), as added
by SAFETEA, only the registered ultimate
vendor may claim a credit or payment for
kerosene used in foreign trade or used
(other than by a state or local government)
in noncommercial aviation. For claims related to kerosene used by states and local
governments in noncommercial aviation,

November 14, 2005

see § 4 of this notice. Noncommercial
aviation means any use of an aircraft not
described in § 4083(b). An ultimate vendor is a person that sells kerosene to an
ultimate purchaser for use in noncommercial aviation or foreign trade.
(2) Conditions to allowance of credit
or payment. A claim for an income tax
credit or payment with respect to kerosene
is allowable under § 6427(l)(5)(B) if—
(i) Tax was imposed on the kerosene
under § 4081;
(ii) The claimant sold the kerosene to
the ultimate purchaser for use in noncommercial aviation or foreign trade;
(iii) The claimant is a registered ultimate vendor;
(iv) The ultimate purchaser has provided a Certificate of Ultimate Purchaser
of Kerosene for Use in Foreign Trade or

Use (Other than by State or Local Government) in Noncommercial Aviation to the
ultimate vendor as provided in paragraph
(f)(4) of this section; and
(v) The claimant has filed a timely
claim for a credit or payment and the
claim contains all the information required
in paragraph (f)(3) of this section.
(3) Form of claim; content of claim.
Rules similar to the rules in § 4(h)(4)
and (5) of Notice 2005–4 are applicable
to claims for credit or payment under
§ 6427(l)(5)(B), except that the claimant
is not required to satisfy § 4(h)(5)(iv) of
Notice 2005–4 (relating to possession of a
waiver by the ultimate purchaser).
(4) Certificate—(i) In general. The certificate to be provided to the ultimate vendor for purposes of § 6427(l)(5)(B) consists of a statement that is signed under

penalties of perjury by a person with authority to bind the buyer, is in substantially the same form as the model certificate in paragraph (f)(4)(ii) of this section
and contains all of the information necessary to complete such model certificate. A
new certificate must be given if any information in the current certificate changes.
The claimant must have the certificate at
the time the credit or payment is claimed
under § 6427(l)(5)(B). The certificate may
be included as part of any business records
normally used to document a sale. The certificate expires on the earlier of the following dates:
(A) The date one year after the effective
date of the certificate.
(B) The date a new certificate is provided.
(ii) Model certificate.

CERTIFICATE OF ULTIMATE PURCHASER OF KEROSENE FOR USE IN FOREIGN
TRADE OR USE (OTHER THAN BY STATE OR LOCAL GOVERNMENT) IN
NONCOMMERCIAL AVIATION
(To support vendor’s claim for a credit or payment under § 6427(l)(5)(B) 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 kerosene to which this certificate relates is purchased (check one):
for use on a farm for farming purposes;
for use in foreign trade (reciprocal benefits required for foreign registered airlines);
for use in certain
helicopter and fixed-wing air ambulance uses;
for the exclusive use of a nonprofit educational organization;
for use in an aircraft owned by an aircraft museum;
for use in military aircraft; or
for a nonexempt use
in noncommercial aviation.
This certificate applies to the following (complete as applicable):
This is a single purchase certificate:
1.

Invoice or delivery ticket number

2.

Number of gallons

This is a certificate 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 certificate to the vendor if any information in this certificate changes.
If Buyer uses the kerosene to which this certificate relates for a use other than the nontaxable use stated above, Buyer
will be liable for tax.
Buyer understands that the fraudulent use of this certificate may subject Buyer and all parties making such fraudulent use of
this certificate to a fine or imprisonment, or both, together with the costs of prosecution.

November 14, 2005

955

2005–46 I.R.B.

Printed or typed name of person signing
Title of person signing
Name of Buyer
Employer identification number
Address of Buyer
Signature and date signed
(iii) Transition rules. A Waiver for Use
by Ultimate Purchasers of Aviation-Grade
Kerosene Used in Nontaxable Uses executed before October 1, 2005, as described
in § 4(h)(6) of Notice 2005–4, will be
treated as a certificate described in this section, and a new certificate will not have to
be given until such waiver expires. In addition, for kerosene sold for a nonexempt
use in noncommercial aviation, the business records used to document sales occurring before November 1, 2005, will be
treated as a certificate described in this section (unless the records clearly establish
that the kerosene will be used on the highway).
(5) Registration. Claims under this
paragraph (f) may be made only by a registered ultimate vendor. Registration rules
similar to those in § 4(h)(7) of Notice
2005–4 are applicable to ultimate vendors
of kerosene used in foreign trade or used
(other than by a state or local government)
in noncommercial aviation. A person that
is registered under § 4101 under Activity
Letter “UA” (Ultimate vendor that sells
aviation-grade kerosene for a nontaxable
use or any use in commercial aviation) is
treated as registered for purposes of claims
filed with respect to kerosene used in foreign trade or used (other than by a state
or local government) in noncommercial
aviation. In addition, for claims relating to
sales before January 1, 2006, for a nonexempt use in noncommercial aviation, an
ultimate vendor that has obtained a valid
TIN will be treated as registered.
(g) Claims for kerosene used by states
and local governments. For rules relating
to claims by registered ultimate vendors
of kerosene used in aviation by state and

2005–46 I.R.B.

local governments, see § 4 of this notice
and § 48.6427–9.
(h) Effective date. Except as otherwise
noted, this section is effective October 1,
2005, and applies to kerosene on which tax
is imposed after September 30, 2005. A
person making a claim for credit or payment under paragraph (e) or (f) of this section may use any reasonable method and
assumptions to establish that tax was imposed after September 30, 2005, on the
kerosene to which the claim relates.
Section 4. TAXABLE FUEL; CLAIMS
BY CREDIT CARD ISSUERS
(a) Overview.
This section describes the changes made by § 11163
of SAFETEA under which a person extending credit on a credit card (credit card
issuer) may claim a credit, refund, or payment with respect to taxable fuel sold to a
state or local government for its exclusive
use or to a nonprofit educational organization for its exclusive use (exempt users).
Section 7 of Notice 2005–4 is modified
in accordance with these changes, as explained in this section.
(b) Identity of the claimant—(1) Gasoline—(i) Section 6416(b)(2) generally
provides that the tax paid on gasoline is
deemed to be an overpayment if the gasoline was sold to an exempt user. 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).
(ii) If gasoline is purchased with a
credit card issued to an exempt user,
§ 6416(a)(4)(B) provides that the credit
card issuer is treated as the person that paid
the tax if prescribed conditions are met.

956

Among other conditions, the credit card
issuer must be registered by the Service.
(iii) If gasoline is purchased by an exempt user without the use of a credit card,
§ 6416(a)(4)(A) provides that the ultimate
vendor of the gasoline is treated as the person (and the only person) that paid the tax,
but only if the vendor is registered by the
Service.
(iv) Guidance for claims made by ultimate vendors under § 6416(a)(4) and
(b)(2) is set forth in § 7 of Notice 2005–4.
The guidance set forth in § 7(a)(1)(ii) of
Notice 2005–4 and § 2 of Notice 2005–24
(relating to oil company credit cards) does
not apply to sales after December 31,
2005.
(v) If the conditions of § 6416(a)(4) are
not met, a claim under § 6416 may not be
made by the person that actually paid the
tax to the government. Instead, the exempt
user may make a claim under § 6421(c).
For any particular transaction, a claim may
not be made under § 6421(c) if the tax is
credited or refunded under § 6416 to the
credit card issuer or the ultimate vendor.
(2) Diesel fuel and kerosene—(i) If
taxed diesel fuel or kerosene is purchased with a credit card issued to a state,
§ 6427(l)(6)(D) provides that the credit
card issuer may, under prescribed conditions, claim a credit or payment related
to the tax. Among other conditions, the
credit card issuer must be registered by the
Service.
(ii) If diesel fuel or kerosene is purchased by a state without the use of a credit
card, § 6427(l)(6)(C) provides that the ultimate vendor of the diesel fuel or kerosene
may claim a credit or payment related to
the tax, but only if the vendor is registered
by the Service and other prescribed con-

November 14, 2005

ditions are met. Under § 6427(l)(6)(A),
the state may not claim a credit or payment related to the tax paid on diesel fuel
or kerosene purchased without the use of a
credit card. Claims made by ultimate vendors under § 6427(l)(6)(A) are described in
§ 48.6427–9.
(iii) If diesel fuel or kerosene is purchased with a credit card issued to a state,
but the credit card issuer is not registered
by the Service (or does not meet certain
other conditions), the credit card issuer
must collect the amount of the tax and
the state is the proper claimant under
§ 6427(l)(6)(D).
(c) Definitions.
State has the meaning given to the term
by § 48.4081–1(b).
Nonprofit educational organization
has the meaning given to the term in
§ 4221(d)(5).
(d) Registration—(1) In general. Application for registration is made on Form
637, Application for Registration (For Certain Excise Tax Activities), in accordance
with the instructions for that form. Form
637 will be revised to include an activity
letter for credit card issuers.
(2) Requirements. The Service will register an applicant as a credit card issuer
only if the Service—
(i) Determines that the applicant is engaged in business as a credit card issuer
and in that business extends credit to state
and local governments or nonprofit educational organizations by means of a credit
card used for the purchase of taxable fuel;
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)).
(3) Separate entity not required. Section 48.4101–1(a)(4) provides that each
business unit that has, or is required to
have, a separate employer identification
number is treated as a separate person. The
Service will not require a credit card issuer

November 14, 2005

to form a separate business entity for the
issuance of credit cards to qualify for registration under § 4101 or to claim a refund,
credit, or payment under § 6416(a)(4)(B)
or 6427(l)(6)(D).
(4) Current UV and UP registrants. A
person that is registered under § 4101 under Activity Letter “UV” or “UP” is treated
as registered for purposes of claims under
this section related to the tax on fuels that
are purchased without the use of a credit
card and will not have to be reregistered
unless notified to do so by the Service.
(e) Conditions to allowance of a credit,
refund or payment. A claim for credit,
refund, or payment is allowable under
§ 6416(a)(4)(B) or § 6427(l)(6)(D) if—
(1) The claimant is a registered credit
card issuer;
(2) The claim relates to the tax on taxable fuel sold to a state for its exclusive use
or gasoline sold to a nonprofit educational
organization for its exclusive use;
(3) The fuel was purchased with a credit
card issued by the claimant;
(4) Tax was imposed on the fuel under
§ 4041 or 4081; and
(5) The claimant has filed a timely
claim for credit, refund, or payment and
the claim contains all of the information
required in paragraph (g) of this section.
(f) Form of claim—(1) Gasoline claims.
For taxes paid on gasoline, claims for
credit or refund under § 6416(a)(4) are
made on Form 8849, Claim for Refund of
Excise Taxes.
(2) Diesel fuel or kerosene claims. For
taxes imposed on diesel fuel or kerosene,
claims for payment under § 6427(l)(6) are
made on Form 8849, Claim for Refund of
Excise Taxes, and claims for income tax
credit under §§ 34 and 6427(l)(6) are made
on Form 4136, Credit for Federal Tax Paid
on Fuels.
(g) Content of claim. Each claim under
§ 6416(a)(4)(B) or § 6427(l)(6)(D) for a
credit, refund, or payment must contain the
following information with respect to the

957

gasoline, 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 collected the amount of the
tax from the person who purchased the taxable fuel; or
(ii) Has obtained written consent from
the ultimate purchaser to the allowance of
the credit or refund.
(4) A statement that the claimant—
(i) Has repaid or agreed to repay the
amount of the tax to the ultimate vendor;
(ii) Has obtained the written consent of
the ultimate vendor to the allowance of the
credit or refund; or
(iii) Has otherwise made arrangements
which directly or indirectly provide the ultimate vendor with reimbursement of such
tax.
(5) A statement that the claimant has in
its possession an unexpired certificate described in paragraph (h) of this section and
has no reason to believe any information in
the certificate is false.
(h) Certificate—(1) In general. The
certificate to be provided to the credit card
issuer consists of a statement that is signed
under penalties of perjury by a person with
authority to bind the state or nonprofit educational organization that purchased the
fuel with the issuer’s credit card, is in substantially the same form as the model certificate in paragraph (h)(2) of this section,
and contains all of the information necessary to complete such model certificate. A
new certificate must be given if any information in the current certificate changes.
The certificate may be included as part of
any business records normally used to document a sale. The certificate expires on the
earlier of the following dates:
(i) The date two years after the effective
date of the certificate.
(ii) The date a new certificate is provided.
(2) Model certificate.

2005–46 I.R.B.

CERTIFICATE OF BUYER OF TAXABLE FUEL FOR USE BY A STATE OR
NONPROFIT EDUCATIONAL ORGANIZATION
(To support credit card issuer’s claim for a credit, refund, or payment under § 6416(a)(4)(B) or § 6427(l)(6)(D) of the Internal
Revenue Code.)

Name, address, and employer identification number of credit card issuer.
The undersigned ultimate purchaser (“Buyer”) hereby certifies the following under the penalties of perjury (check one):
Buyer will use the taxable fuel to which this certificate relates for the exclusive use of a state; or
Buyer will use the gasoline to which this certificate relates for the exclusive use of a nonprofit educational
organization.
This certificate applies to all purchases made with the credit card identified below during the period specified:
1. Buyer’s account number
2. Effective date of certificate
3. Expiration date of certificate

.
.
(period not to exceed 2 years after the effective date).

Buyer will provide a new certificate to the credit card issuer if any information in this certificate changes.
Buyer understands that by signing this certificate, Buyer gives up its right to claim a credit or payment for the taxable fuel
purchased with the credit card to which this certificate relates.
Buyer acknowledges that it has not and will not claim any credit or payment for the taxable fuel purchased with the
credit card to which this certificate relates.
Buyer understands that the fraudulent use of this certificate may subject Buyer and all parties making such fraudulent use of
this certificate 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
(3) Current certificates held by credit
card issuers. A certificate also meets the
conditions of this paragraph (h) if it is similar to the certificate described in paragraph
(h)(2) of this section and was obtained by
the credit card issuer for purposes of processing a claim under § 6416 or 6427 as in
effect before January 1, 2006. These certificates expire on the earlier of January 1,
2007, or the expiration date on the certificate.

2005–46 I.R.B.

(i) Effective date. This section is effective January 1, 2006, and applies to claims
relating to fuel sold to its ultimate purchaser on or after that date.
Section 5. DIESEL-WATER FUEL
EMULSIONS
This section describes the changes
made by § 1343 of the Energy Act regarding diesel-water fuel emulsion. Effective

958

January 1, 2006, the rate of tax imposed
by § 4081 is reduced for diesel-water
fuel emulsion that meets the requirements
described in § 4081(a)(2)(D). These requirements include the registration under
§ 4101 of the person liable for tax on
the removal or sale of the diesel-water
fuel emulsion. Section 6427(m) provides
that a credit or payment is allowable if a
person uses diesel fuel taxed at the full
rate to produce diesel-water fuel emulsion

November 14, 2005

described in § 4081(a)(2)(D) that is sold
or used in such person’s trade or business. The amount of the credit is equal
to the excess of the tax imposed on the
diesel fuel in the diesel-water fuel emulsion over the amount of tax that would
have been imposed on a taxable removal
of the diesel-water fuel emulsion. Under
this notice, each person that is claiming a
credit or payment for a diesel-water fuel
emulsion also must be registered by the
Service. A person that is registered under
Activity Letter “S” or “M” will be treated
as being registered for purposes of applying §§ 4081(a)(2)(D) and 6427(m) to
any removal, sale, or use occurring before
January 1, 2007.
Section 6. DIESEL FUEL AND
KEROSENE; DYE INJECTION
(a) Background. As amended by AJCA,
§ 4082(a) generally provides that the exemption for dyed diesel fuel and dyed
kerosene will not apply unless, among
other conditions, the fuel is indelibly dyed
“by mechanical injection” in accordance
with regulations that the Secretary shall
prescribe. This requirement for mechanical injection is effective on the 180th day
after the date on which these regulations
are issued. Temporary regulations implementing this requirement were issued on
April 26, 2005 (T.D. 9199, 2005–19 I.R.B
1003 [70 FR 21332]). Thus, the effective
date of the temporary regulations is October 24, 2005.
(b) Transition rules. Treasury and the
Service are concerned that many taxpayers, particularly those in areas affected by
Hurricanes Katrina and Rita, may not be
able to comply with the specific requirements of the temporary regulations by October 24. In addition, some of these requirements may be modified in final regulations. Accordingly, the following transition rules will apply between October 24,
2005, and the date that is 180 days after the
date of publication of final regulations in
the Federal Register:
(1)(i) Any means of dyeing by mechanical injection will be deemed to meet
the “mechanical injection” requirements
of § 4082(a) if the dyeing system includes measures to resist tampering that
are consistent with customary business
security practices.
Thus, mechanical
injection systems at a terminal are not

November 14, 2005

required to meet the specific requirements
of § 48.4082–1T(d) and no penalty will be
imposed under § 6715A(a)(2) for a failure
to meet those specific requirements.
(ii) In the case of a malfunction of a
system described in section (b)(1)(i) of
this section, fuel dyed by manual dyeing
will be deemed to meet the requirements
of § 4082(a) if the interval between the
first occurrence of manual dyeing and the
last does not exceed 72 hours (excluding any Saturday, Sunday, or legal holiday that is within the interval) and the facility operator keeps adequate records describing the circumstances surrounding the
malfunction. The Service may withdraw
an operator’s right to dye by manual dyeing if the Service cannot verify the accuracy of such dyeing.
(2) A mixture containing diesel fuel or
kerosene will be treated as being dyed by
mechanical injection if—
(i) The mixture consists of at least 80
percent diesel fuel or kerosene and the
remaining portion is a liquid, such as
biodiesel, (“other liquid”) that is not diesel
fuel or kerosene;
(ii) The diesel fuel or kerosene in the
mixture was dyed by mechanical injection;
(iii) The diesel fuel or kerosene and the
other liquid are combined at a facility that
is not a terminal; and
(iv) The mixture meets the specifications of § 48.4082–1(b) (relating to dye
type and concentration) when it is removed
from the facility where the diesel fuel or
kerosene and the other liquid are combined.

Susan Athy, and William Blodgett of
the Office of the Associate Chief Counsel (Passthroughs and Special Industries).
For further information regarding this
notice, please contact Ms. Karet (concerning LUST and kerosene for use in aviation), Ms. Cortright (concerning credit
cards), or Ms. Athy (concerning diesel
water fuel emulsions) at (202) 622–3130.
Mr. Blodgett (concerning dye injection)
can be reached at (202) 622–3090. These
are not toll-free calls.

Section 7. EFFECT ON OTHER
DOCUMENTS

II. BACKGROUND

Notice 2005–4 is modified as described
in this notice.
Section 8. PAPERWORK REDUCTION
ACT
The Office of Management and Budget
has waived application of the Paperwork
Reduction Act with respect to the collections of information contained in this notice.
Section 9. DRAFTING INFORMATION
The principal authors of this notice
are Deborah Karet, Taylor Cortright,

959

Additional Relief for Certain
Employee Benefit Plans as a
Result of Hurricane Katrina
Notice 2005–84
I. PURPOSE
The Internal Revenue Service, the Department of Labor’s Employee Benefits
Security Administration (“EBSA”) and
the Pension Benefit Guaranty Corporation
(“PBGC”) are providing relief in connection with certain employee benefit plans
because of damage caused by Hurricane
Katrina (“Katrina”). The relief provided
by this notice is in addition to the relief already provided by the Service, the EBSA
and the PBGC to victims of Katrina. This
relief is provided in accordance with section 403(b) of the Katrina Emergency Tax
Relief Act of 2005 (“KETRA”), Pub. L.
No. 109–73.

Section 412(a) of the Internal Revenue
Code (“Code”) and § 302(a) of the Employee Retirement Income Security Act
of 1974, Pub. L. No. 93–406 (“ERISA”)
provide that, in order for a plan to meet the
minimum funding standards of the Code
and ERISA, the plan must not have an
accumulated funding deficiency as of the
end of each plan year. Section 412(c)(10)
of the Code and § 302(c)(10) of ERISA
provide that, for purposes of satisfying
the minimum funding requirements of the
Code and ERISA, any contributions for a
plan year made by an employer by the end
of the 81/2-month period following the end
of such plan year are deemed to have been
made on the last day of the year.

2005–46 I.R.B.