Cases: Crop Care Applicators, Inc. v. Commissioner, T.C. Summ. Op. 2001-21
Forms: Form 4136; Form 1065; Form 843
Final rules 1
(a) Gasoline Except as provided in subsection (g), if gasoline is used on a farm for farming purposes, the Secretary shall pay (without interest) to the ultimate purchaser of such gasoline the amount determined by multiplying—
Amended 1965, 1976
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(a)(26) (C)(ii), (b)(13)(A), substituted “subsection (g)” for “subsection (h)” and struck out “or his delegate” after “Secretary”.
- 1965 Pub. L. 89-44 Pub. L. 89–44, § 809(a)(1)(A), substituted “Except as provided in subsection (h), if” for “If”.
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(1) the number of gallons so used, by
(2) the rate of tax on gasoline under section 4081 which applied on the date he purchased such gasoline.
(b) Time for filing claims; period covered Not more than one claim may be filed under this section by any person with respect to gasoline used during his taxable year, and no claim shall be allowed under this section with respect to gasoline used during any taxable year unless filed by such person not later than the time prescribed by law for filing a claim for credit or refund of overpayment of income tax for such taxable year. For purposes of this subsection, a person’s taxable year shall be his taxable year for purposes of subtitle A.
Amended 1965, 1970, 1976
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(a)(26)(A), among other changes, struck out provisions relating to gasoline used before July 1, 1965, and struck out requirement that a person’s first taxable year beginning after June 30, 1965, include the period after June 30, 1965, and before the beginning of that first taxable year.
- 1970 Pub. L. 91-258 Pub. L. 91–258, § 207(b), substituted “a claim for credit or refund of overpayment of income tax” for “an income tax return” after “time prescribed by law for filing”.
- 1965 Pub. L. 89-44 Pub. L. 89–44, § 809(a)(2), designated existing provisions as par. (1) and made it applicable to gasoline used before July 1, 1965, and added par. (2).
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(c) Meaning of terms For purposes of this section—
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(1) Use on a farm for farming purposes Gasoline shall be treated as used on a farm for farming purposes only if used (A) in carrying on a trade or business, (B) on a farm situated in the United States, and (C) for farming purposes.
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(2) Farm The term “farm” includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.
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(3) Farming purposes Gasoline shall be treated as used for farming purposes only if used—
(A) by the owner, tenant, or operator of a farm, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife, on a farm of which he is the owner, tenant, or operator;
Amended 1958, 1976, 1978
- 1978 Pub. L. 95-458 Pub. L. 95–458, § 3(c), struck out provision that if the use of gasoline is by any person other than the owner, tenant, or operator of a farm, then in applying subsec. (a) of this subparagraph, the owner, tenant, or operator of the farm on which gasoline or a liquid taxable under section 4041 is used would be treated as the user or ultimate purchaser of the gasoline or liquid.
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(b)(6)(A), among other changes, struck out “and for purposes of section 6416(b)(2)(G)(ii) (but not for purposes of section 4041),” after “in applying subsection (a) to this subparagraph,” and provision that if the use of gasoline is by any person other than the owner, tenant, or operator of the farm, then, for purposes of applying section 6416(b)(2)(G)(ii), any tax paid under section 4041 in respect of a liquid used on a farm for farming purposes be treated as having been paid by the owner, tenant, or operator of the farm on which such liquid is used.
- 1958 Pub. L. 85-859 Pub. L. 85–859 substituted “section 6416(b)(2)(G)(ii)” for “section 6416(b)(2)(C)(ii)” in two places in cl. (A).
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(B) by the owner, tenant, or operator of a farm, in handling, drying, packing, grading, or storing any agricultural or horticultural commodity in its unmanufactured state; but only if such owner, tenant or operator produced more than one-half of the commodity which he so treated during the period with respect to which claim is filed;
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(4) Certain farming use other than by owner, etc. In applying paragraph (3)(A) to a use on a farm for any purpose described in paragraph (3)(A) by any person other than the owner, tenant, or operator of such farm—
Amended 1978, 2005
- 2005 Pub. L. 109-59 Pub. L. 109–59, § 11121(b), inserted concluding provisions.
- 1978 Pub. L. 95-458 Pub. L. 95–458, § 3(a), added par. (4) and redesignated former par. (4) as (5).
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(A) the owner, tenant, or operator of such farm shall be treated as the user and ultimate purchaser of the gasoline, except that
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(B) if the person so using the gasoline is an aerial or other applicator of fertilizers or other substances and is the ultimate purchaser of the gasoline, then subparagraph (A) of this paragraph shall not apply and the aerial or other applicator shall be treated as having used such gasoline on a farm for farming purposes.
Amended 1983, 2005
- 2005 Pub. L. 109-59 Pub. L. 109–59, § 11121(a), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “if—
“(i) the person so using the gasoline is an aerial or other applicator of fertilizers or other substances and is the ultimate purchaser of the gasoline, and
“(ii) the person described in subparagraph (A) waives (at such time and in such form and manner as the Secretary shall prescribe) his right to be treated as the user and ultimate purchaser of the gasoline,
then subparagraph (A) of this paragraph shall not apply and the aerial or other applicator shall be treated as having used such gasoline on a farm for farming purposes.”
- 1983 Pub. L. 97-424 Pub. L. 97–424, § 511(f), substituted provision that, if the person so using the gasoline is an aerial or other applicator of fertilizers or other substances and is the ultimate purchaser of the gasoline, and the person described in subparagraph (A) waives (at such time and in such form and manner as the Secretary shall prescribe) his right to be treated as the user and ultimate purchaser of the gasoline, then subparagraph (A) of this paragraph shall not apply and the aerial or other applicator shall be treated as having used such gasoline on a farm for farming purposes, for provision that, if the person so using the gasoline were an aerial applicator who was the ultimate purchaser of the gasoline and the person described in subparagraph (A) waived (at such time and in such form and manner as the Secretary was to prescribe) his right to be treated as the user and ultimate purchaser of the gasoline, then subparagraph (A) of this paragraph would not apply and the aerial applicator would be treated as having used such gasoline on a farm for farming purposes.
In the case of an aerial applicator, gasoline shall be treated as used on a farm for farming purposes if the gasoline is used for the direct flight between the airfield and one or more farms.
(5) Gasoline The term “gasoline” has the meaning given to such term by section 4083(a).
Amended 1978, 1993
- 1993 Pub. L. 103-66 Pub. L. 103–66, § 13242(d)(20), substituted “section 4083(a)” for “section 4082(b)”.
- 1978 Pub. L. 95-458 Pub. L. 95–458, § 3(a), added par. (4) and redesignated former par. (4) as (5).
(d) Exempt sales; other payments or refunds available No amount shall be payable under this section with respect to any gasoline which the Secretary determines was exempt from the tax imposed by section 4081. The amount which (but for this sentence) would be payable under this section with respect to any gasoline shall be reduced by any other amount which the Secretary determines is payable under this section, or is refundable under any provision of this title, to any person with respect to such gasoline.
Amended 1965, 1976
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(b)(13)(A), struck out “or his delegate” after “Secretary”.
- 1965 Pub. L. 89-44 Pub. L. 89–44, § 809(a)(3), substituted “payable” for “paid” in first sentence.
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(e) Applicable laws
(1) In general All provisions of law, including penalties, applicable in respect of the tax imposed by section 4081 shall, insofar as applicable and not inconsistent with this section, apply in respect of the payments provided for in this section to the same extent as if such payments constituted refunds of overpayments of the tax so imposed.
Amended 1976
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(a)(26)(B), substituted “apply in respect” for “apply in in respect”.
(2) Examination of books and witnesses For the purpose of ascertaining the correctness of any claim made under this section, or the correctness of any payment made in respect of any such claim, the Secretary shall have the authority granted by paragraphs (1), (2), and (3) of section 7602(a) (relating to examination of books and witnesses) as if the claimant were the person liable for tax.
Amended 1976, 1989
- 1989 Pub. L. 101-239 Pub. L. 101–239 substituted “section 7602(a)” for “section 7602”.
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(b)(13)(A), struck out “or his delegate” after “Secretary”.
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(3) Fractional parts of a dollar Section 7504 (granting the Secretary discretion with respect to fractional parts of a dollar) shall not apply.
(f) Regulations The Secretary may by regulations prescribe the conditions, not inconsistent with the provisions of this section, under which payments may by made under this section.
Amended 1976
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(b)(13)(A), struck out “or his delegate” after “Secretary”.
(g) Income tax credit in lieu of payment
Amended 1976
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(a)(26)(C)(i), (D), redesignated subsec. (h) as (g), struck out in par. (1) “with respect to gasoline used after June 30, 1965,” after “subsection (a)”, and in par. (2) “for gasoline used after June 30, 1965” after “subtitle A”. Former subsec. (g), which provided that this section applies only with respect to gasoline purchased after Dec. 31, 1955, was struck out.
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(1) Persons not subject to income tax Payment shall be made under subsection (a), only to—
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(A) the United States or an agency or instrumentality thereof, a State, a political subdivision of a State, or an agency or instrumentality of one or more States or political subdivisions, or
(B) an organization exempt from tax under section 501(a) (other than an organization required to make a return of the tax imposed under subtitle A for its taxable year).
(2) Allowance of credit against income tax For allowance of credit against the tax imposed by subtitle A, see section 34.
Amended 1984
- 1984 Pub. L. 98-369 Pub. L. 98–369 substituted “section 34” for “section 39”.
[(h) Repealed. Pub. L. 103–66, title XIII, § 13241(f)(5), Aug. 10, 1993, 107 Stat. 512]
Amended 1965, 1976, 1983, 1986, 1987, 1990, 1991, 1993
- 1993 Pub. L. 103-66 Pub. L. 103–66, § 13241(f)(5), struck out heading and text of subsec. (h). Text read as follows: “Except with respect to taxes imposed by section 4081 at the Leaking Underground Storage Tank Trust Fund financing rate, this section shall apply only with respect to gasoline purchased before October 1, 1999.”
- 1991 Pub. L. 102-240 Pub. L. 102–240 substituted “1999” for “1995”.
- 1990 Pub. L. 101-508 Pub. L. 101–508 substituted “1995” for “1993”.
- 1987 Pub. L. 100-17 Pub. L. 100–17 substituted “1993” for “1988”.
- 1986 Pub. L. 99-499 Pub. L. 99–499 substituted “Except with respect to taxes imposed by section 4081 at the Leaking Underground Storage Tank Trust Fund financing rate, this section” for “This section”.
- 1983 Pub. L. 97-424 Pub. L. 97–424, § 516(b)(4), added subsec. (h). Former subsec. (h) redesignated (i).
- 1983 Pub. L. 97-473 Pub. L. 97–473 purported to add par. (4). See Amendment note below for subsec. (i)(4).
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(a)(26)(C)(i), redesignated subsecs. (h) and (i) as (g) and (h), respectively.
- 1965 Pub. L. 89-44 Pub. L. 89–44, § 809(a)(1)(B), added subsec. (h) and redesignated former subsec. (h) as (i).
(i) Cross references
Amended 1965, 1976, 1983
- 1983 Pub. L. 97-424 Pub. L. 97–424, § 516(b)(4), redesignated former subsec. (h) as (i).
- 1976 Pub. L. 94-455 Pub. L. 94–455, § 1906(a)(26)(C)(i), redesignated subsecs. (h) and (i) as (g) and (h), respectively.
- 1965 Pub. L. 89-44 Pub. L. 89–44, § 809(a)(1)(B), added subsec. (h) and redesignated former subsec. (h) as (i).
(1) For exemption from tax in case of special fuels used on a farm for farming purposes, see section 4041(f).
Amended 1970
- 1970 Pub. L. 91-258 Pub. L. 91–258, § 205(c)(7)(A), (B), substituted “special fuels” for “diesel fuel and special motor fuels” and “section 4041(f)” for “section 4041(d)”, respectively.
(2) For civil penalty for excessive claim under this section, see section 6675.
(3) For fraud penalties, etc., see chapter 75 (section 7201 and following, relating to crimes, other offenses, and forfeitures).
(4) For treatment of an Indian tribal government as a State (and a subdivision of an Indian tribal government as a political subdivision of a State), see section 7871.
Amended 1983, 2018
- 2018 Pub. L. 115-141 Pub. L. 115–141 substituted “State (and” for “State and”.
- 1983 Pub. L. 97-473 Pub. L. 97–473 added par. (4). Notwithstanding the directory language that par. (4) be added to subsec. (h), it was added to subsec. (i) to reflect the probable intent of Congress and the intervening redesignation of subsec. (h) as (i) by Pub. L. 97–424.