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Date: 07-28-2021
Case Style:
U.S. VENTURE, INC. v. UNITED STATES OF AMERICA
Case Number: 20-1861
Judge: Michael Yale Scudder Jr.
Court: United States Court of Appeals
For the Seventh Circuit
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Chicago, IL - Fuel Taz lawyer represented Plaintiff-Appellant with a dispute over the scope of a statutory credit—taken against excise fuel taxes.
Since 1932 Congress has imposed excise taxes on the production of motor fuel. See Revenue Act of 1932, Pub. L. No.
72-154, § 617(a), 47 Stat. 169, 266. An excise is a “tax imposed
on the manufacture, sale, or use of goods . . . or on an occupation or activity.” Tax, BLACK’S LAW DICTIONARY (11th ed.
2019). Gasoline is the postcard example of a motor fuel historically subject to an excise tax. Since at least 1954, Congress has
also recognized and imposed an excise tax on a category of
alternative fuels initially called “special motor fuels.” See Excise Tax Reduction Act of 1954, Pub. L. No. 83-324, § 507(b), 68
Stat. 37, 44. The combined fuel excise taxes account for more
than 80% of the annual revenue collected by the U.S. Treasury
Department for the Highway Trust Fund. The Congressional
Budget Office estimated that in 2020 alone, fuel excise taxes
generated more than $35 billion in revenue.
No. 20-1861 3
In 2005 Congress enacted the Safe, Accountable, Flexible,
Efficient Transportation Equity Act. See Pub. L. No. 109-59,
§ 11,113(b), 119 Stat. 1144, 1947. One component of the Act introduced new credits that fuel producers could use to offset
their fuel excise taxes. At issue in this appeal are tax credits
these producers can claim for using “alternative fuels” to create “alternative fuel mixtures.” Even more specifically, the tax
credit at issue is known as the AFM credit and is codified in
the Tax Code at 26 U.S.C. § 6426(e).
B
Before wading into the statutory analysis, we pause to explain why all of this matters. U.S. Venture, Inc. is a privately
held corporation headquartered in Wisconsin. One aspect of
its business is to produce and sell motor fuels. And one way
the company does so is by buying fuel from various suppliers
and combining it with different additives before selling the
finished product to retailers.
Since 2012 U.S. Venture has commonly added butane to
the gasoline it produces and sells. Butane is itself a type of gas,
made from both natural gas and petroleum. It has long been
considered a fuel additive, with suppliers adding it to gasoline since at least the 1960s. Suppliers like U.S. Venture most
often add butane when the weather turns colder because it
helps cars start better in the winter months.
The petroleum industry considers and defines butane as a
form of “liquified petroleum gas,” often shorthanded as LPG.
Some dictionaries refer to butane this same way—as an LPG.
See, e.g., OXFORD DICTIONARY OF ENGLISH 1030 (3d ed. 2010);
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 725 (11th ed.
2004). Other examples of LPGs include pentane and propane.
4 No. 20-1861
Since U.S. Venture began adding butane to its gasoline in
2012, the company paid the applicable federal fuel excise tax
without objection for several years. Then, in 2017 U.S. Venture
first sought an AFM tax credit for producing and selling fuel
that contained a mixture of gasoline and butane. That year,
U.S. Venture filed amended returns for tax years 2013 through
2016 seeking refunds based on the AFM credit for each gallon
of butane used in its gasoline production. It sought a similar
refund for excise taxes paid in 2017. U.S. Venture sought the
AFM credits (through the refund requests) on the theory that
butane is a “liquefied petroleum gas” or LPG—a substance
explicitly identified as an “alternative fuel” for purposes of
the tax credit. See 26 U.S.C. § 6426(d)–(e).
The company’s decision to seek the refunds coincided
with the appearance of tax-lawyer-produced promotional literature “urging taxpayers to assert on amended returns that
butane (a standard component chemical present in all gasoline), when blended with gasoline, constituted an alternative
fuel mixture.” H.R. Rep. 116-379 at 61 (2020); see, e.g., Shawn
R. O’Brien and May Y. Chow, “Can the Alternative Fuel Mixture Credit Apply When LPG (Butane) Is Mixed with Gasoline,” Bloomberg BNA Daily Tax Report (Oct. 18, 2017)
(“[F]uel blenders may be entitled to the alternative fuel mixture credit under tax code Section 6426(e) for mixing liquefied
petroleum gases such as butane with gasoline they are producing for sale or use in their business.”).
The IRS rejected U.S. Venture’s position, concluding that
butane did not qualify for the AFM tax credit. Completing this
agency review opened the door to federal court and allowed
the district court to exercise jurisdiction over any subsequent
refund-related litigation. See 26 U.S.C. § 7422(a); 28 U.S.C.
No. 20-1861 5
§ 1346(a)(1). U.S. Venture then filed two different lawsuits,
one seeking refunds for fuel excise taxes paid from 2013–2016,
and one seeking a refund for the company’s 2017 tax payments. The district court consolidated these cases into the single proceeding we now review.
Understanding the district court’s decision requires more
background on the language Congress used to establish the
AFM tax credit. It is to that language and the broader statutory structure we now turn.
II
A
When interpreting a statute, we start with its text. See Babb
v. Wilkie, 140 S. Ct. 1168, 1172 (2020) (“Which [statutory] interpretation is correct? To decide, we start with the text of the
statute[.]”); Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242,
251 (2010) (“As in all such cases [of statutory construction], we
begin by analyzing the statutory language[.]”). The familiarity of this aphorism does nothing to blunt its force.
The proper approach, then, begins by examining the language authorizing the AFM tax credit. By parsing the text and
then more broadly navigating the accompanying and surrounding excise tax and tax credit structure, we find all of the
definitional direction necessary to determine the meaning
and limits of the precise provision at issue—26 U.S.C.
§ 6426(e). The Supreme Court has made clear that we must
chart this exact course: “It is a fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme.” Davis v. Mich. Dep’t of Treasury, 489 U.S. 803, 809
(1989).
6 No. 20-1861
B
We start with the underlying fuel excise tax itself. Subject
to limited exceptions, the Tax Code imposes an excise tax on
“the sale of a taxable fuel.” 26 U.S.C. § 4081(a)(1)(A)(iv). The
statutory provision at issue provides a credit against that excise tax for the use of alternative fuel mixtures in the production of motor fuel. That credit appears in § 6426, which, in the
pre-2019 version of the statute, provides:
(e) Alternative fuel mixture credit.—
(1) In general.—For purposes of this section, the alternative fuel mixture credit is the product of 50 cents
and the number of gallons of alternative fuel used
by the taxpayer in producing any alternative fuel
mixture for sale or use in a trade or business of the
taxpayer.
(2) Alternative fuel mixture.—For purposes of this
section, the term “alternative fuel mixture” means
a mixture of alternative fuel . . . and taxable fuel (as
defined in subparagraph (A), (B), or (C) of section
4083(a)(1))[.]
Id. § 6426(e)(1)–(2).
Note the structure and key terms Congress used in authorizing, defining, and limiting the credit for an “alternative fuel
mixture.” Subsection (e)(1) states that the AFM credit applies
to the use of an “alternative fuel” used in the production of an
“alternative fuel mixture.” Subsection (e)(2) then defines an
“alternative fuel mixture” as a “mixture” of an “alternative
fuel” and a “taxable fuel.” Note, too, that subsection (e)(2) expressly cross-references another statute (§ 4083(a)(1)(A)–(C))
to define the term “taxable fuel.” And also note that nowhere
No. 20-1861 7
in § 6426(e)(1) or (e)(2) did Congress define the term “alternative fuel.”
The specific statutory inquiry here involves two primary
questions. First, whether butane qualifies as a “taxable fuel”
for purposes of the AFM tax credit in § 6426(e). Second, if so,
whether butane can also qualify as an “alternative fuel” for
purposes of the AFM tax credit. These are the operative questions because U.S. Venture sought the AFM tax credit for producing fuel by blending butane with traditional gasoline.
So we begin by asking whether butane is a “taxable fuel.”
We know from the cross-reference within § 6426(e)(2) that the
AFM tax credit expressly adopts the definition of taxable fuel
used in “subparagraph (A), (B), or (C) of section 4083(a)(1).”
Section 4083, in turn, is a definitional provision that gives
meaning to the terms used in the fuel excise tax statute itself—
26 U.S.C. § 4081. The specific subsection cross-referenced
within § 6426(e) defines “taxable fuel” as “(A) gasoline, (B)
diesel fuel, and (C) kerosene.” Id. § 4083(a)(1). The term “gasoline” is further defined in the very next statutory subsection—§ 4083(a)(2)—to “include[ ], to the extent prescribed in
regulations—(i) any gasoline blend stock.” Id. § 4083(a)(2)(B).
One of those referenced “regulations” explicitly identifies butane as one of several “gasoline blendstocks.” See 26 C.F.R
§ 48.4081-1(c)(3)(i)(B).
Although the requisite analysis is dense, the upshot thus
far is clear. The express language of § 4083—the provision
Congress expressly cross-referenced within the AFM tax
credit—unambiguously tells us that butane is a “taxable fuel”
for purposes of the fuel excise tax. By extension, then—because Congress expressly hinged the definition of “taxable
fuel” within § 6426(e)(2) on the definition employed in
8 No. 20-1861
§ 4083—butane constitutes a “taxable fuel” for purposes of
the AFM tax credit.
Having reached this conclusion, the next step is to determine whether butane can also be an “alternative fuel.” Remember that the AFM tax credit, by the terms of § 6426(e), applies to a “mixture” of a “taxable fuel” and an “alternative
fuel.” So if, as U.S. Venture argues, butane can be both a taxable fuel and an alternative fuel, mixing butane with another
taxable fuel, gasoline, would still allow U.S. Venture to claim
the AFM tax credit.
We return to the text. The simple fact that the tax credit is
for an “alternative fuel mixture” indicates that the resulting
fuel for which the taxpayer seeks a credit must be “alternative” to something. That something is surely a taxable fuel, for
the language Congress used in § 6426(e) plainly distinguishes
between a “taxable fuel” and an “alternative fuel” and affords
a credit only when a taxpayer produces a mixture of the two.
It strains credulity, then, to consider butane, which we have
just concluded is a taxable fuel, to also be “alternative to” a
taxable fuel. On that view, we would all but delete the word
“alternative” from § 6426(e)—a result at odds with the entirety of the provision.
We can put the same observation another way. The tax
credit in § 6426(e) applies to a “mixture” of taxable and alternative fuels, which tells us that at least one other ingredient
(an alternative fuel) must be mixed with a taxable fuel. Despite U.S. Venture’s assertion, then, it makes no sense to call
combining one taxable fuel (butane) with another taxable fuel
(gasoline) a “mixture” of an alternative and a taxable fuel.
Adding one taxable fuel to another taxable fuel does not result
in a mixture of a taxable fuel and an alternative fuel.
No. 20-1861 9
Nor would treating butane as an alternative fuel align
with what the statutory language shows is the purpose of the
AFM tax credit. We need not delve into what specific goals
Congress sought to promote when establishing the credit to
make this point clear. All we need observe is that by enacting
the alternative fuel mixture tax credit, Congress sought to incentivize the use of alternative fuels in the production of motor fuel. But remember that gasoline has long been subject to
the federal excise tax and butane had been a standard gasoline
additive for more than 30 years before the passage of the 2005
Act establishing the AFM credit. There would seem to be little
reason to incentivize the continued use of a standard fuel
component like butane through an “alternative” fuel mixture
credit.
We therefore conclude that butane is not an “alternative
fuel” within the meaning of § 6426(e), and U.S. Venture’s addition of butane to the gasoline it produces and sells does not
qualify for the AFM tax credit.
In entering summary judgment for the IRS, the district
court applied much of the same analysis that we have employed in construing the language of the AFM tax credit. We
agree in full with the district court’s reasoning. The court’s
analysis gives effect to the express language of § 6426(e), the
broader statutory structure and regulatory scheme imposing
the fuel excise tax, and the plain purpose of the AFM tax
credit.
III
These conclusions do not go unchallenged by U.S. Venture. The company contends the district court misinterpreted
how Congress defined both “alternative fuel” and “taxable
10 No. 20-1861
fuel” for purposes of the AFM tax credit. Right to it, the company asserts that it is entitled to the AFM tax credit because
butane is not a taxable fuel, but instead is an alternative fuel,
or, at minimum, qualifies as both.
A
U.S. Venture’s beginning point is to isolate and focus on
precisely how Congress defined “alternative fuel” for purposes of the AFM tax credit. The company reminds us that
§ 6426(e) does not define “alternative fuel.” But, the company
emphasizes, the previous subsection—§ 6426(d)—makes
clear that “[f]or purposes of this section [§ 6426], the term ‘alternative fuel’ means [among other things] liquefied petroleum gas[.]” 26 U.S.C. § 6426(d)(2)(A). U.S. Venture then observes, and the government does not disagree, that as a matter
of chemistry and common usage and understanding in the energy sector, butane is a liquefied petroleum gas or LPG. Accordingly, the company’s punchline is that because butane is
an LPG, and LPG’s are defined in § 6426(d)(2)(A) as “alternative fuel[s]” for purposes of the AFM tax credit, butane must
be an “alternative fuel” within the meaning of § 6426(e).
The company’s position makes good sense in some respects. If Congress had drafted § 6426(e) in an altogether different way—where statutory terms were not defined and
where meaning could not be discerned from the surrounding
language—U.S. Venture’s approach may be right. Perhaps
then we might rely on a meaning of butane commonly accepted in the petroleum industry or in this or that dictionary.
But we read and interpret the statutory structure as compelling a different analysis. We cannot get to the point of concluding that butane is an “alternative fuel” within the
No. 20-1861 11
meaning of § 6426(e), especially when we read that provision
against the broader backdrop of fuel excise tax provisions to
which the AFM tax credit applies.
The Tax Code has recognized alternative motor fuels (initially referred to as “special motor fuel”) since at least 1954.
Indeed, alternative fuels have been subject to their own excise
tax since that time. In the provisions imposing that excise tax,
Congress has consistently defined alternative fuels to exclude
“any product taxable” under the fuel excise tax. See, e.g., Excise Tax Reduction Act of 1954, 68 Stat. at 44; 60 Fed. Reg.
40079, 40082 (1995); 51 Fed. Reg. 11, 18 (1986); 25 Fed. Reg.
11201, 11217 (1960); 26 C.F.R. § 48.4041-8(f)(2) (1961). In other
words, Congress distinguished between alternative fuels and
taxable fuels, defining the two to be exclusive of one another
for purposes of the applicable excise tax. What this means
here is that butane cannot be both a “taxable fuel” (as we have
concluded it is) and an “alternative fuel.”
Or put in even stronger terms, because butane is taxable
under § 4081 as a “gasoline blend stock” it is a taxable fuel
and thus is excluded from the definition of “alternative fuel”
in § 6426(e). The statute implementing the related alternative
fuel excise tax makes this point expressly clear. See 26 U.S.C.
§ 4041(a)(2) (imposing a tax on “alternative fuels” which excludes “gas oil, fuel oil, or any product taxable under section
4081”) (emphasis added); see also 26 C.F.R. § 48.4041-8(f)(2)
(“The term ‘special motor fuel’ does not include any product
taxable under the provisions of section 4081 [the fuel excise
tax].”).
The analysis makes sense at a broader level too. Congress
enacted the 2005 statute introducing the AFM tax credit
against the backdrop of these pre-existing statutory and
12 No. 20-1861
regulatory definitions of “alternative fuel.” And we see nothing in the 2005 Act indicating that Congress intended to
change these well-understood and long-codified definitions
or, as U.S. Venture would seem to have it, to create one set of
definitions for excise tax purposes and another for credits
against those excise taxes. The proper interpretative approach, therefore, is one that harmonizes meaning between
the use of terms such as “alternative fuel” that appear in these
interrelated portions of the Tax Code. See Gustafson v. Alloyd
Co., 513 U.S. 561, 570 (1995) (“[E]very Act of Congress[]
should not be read as a series of unrelated and isolated provisions.”); see also Hollyfrontier Cheyenne Refining, LLC v. Renewable Fuels Ass’n, No. 20-472, slip. op. at 5 (U.S. June 25, 2021)
(refusing, absent “any persuasive countervailing evidence,”
to accept that Congress intended to assign different meanings
to the same term in neighboring subparagraphs). So, even
though butane is classified as a liquid petroleum gas or LPG
for industry purposes, its meaning within this excise tax and
related AFM tax credit scheme is controlled by existing statutory and regulatory definitions.
What U.S. Venture’s position further underappreciates is
that the dictionary or industry definition of a statutory term
does not always govern when meaning can be discerned from
language used in a larger statutory context. See Digital Realty
Tr., Inc. v. Somers, 138 S. Ct. 767, 776 (2018) (“When a statute
includes an explicit definition, we must follow that definition,
even if it varies from a term’s ordinary meaning.” (quotation
marks omitted)); see also Home Depot U.S.A., Inc. v. Jackson,
139 S. Ct. 1743, 1748 (2019). And we see no compelling reason
to redefine an existing statutory term—here “alternative
fuel”—based solely on its scientific or industry definition.
No. 20-1861 13
The Tax Code is not a chemistry textbook. Nor is it a manual for use by the petrochemical industry. It is a statutory
scheme (and a complex one at that) whose meaning and limits
come from its language and structure. Where, as here, the
statutory text supplies the definitional tools we need to answer the question presented, we can stop. There is no need to
resort to extrinsic definitions or methods of interpretation. See
Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356, 2364
(2019) (“In statutory interpretation disputes, a court’s proper
starting point lies in a careful examination of the ordinary
meaning and structure of the law itself. Where, as here, that
examination yields a clear answer, judges must stop.” (citations omitted)).
B
U.S. Venture also begs to differ with our construction of
the term “taxable fuel” in § 6426(e). Instead of giving controlling weight to the definition of “taxable fuel” embedded in the
statute, the company turns itself in circles urging us to artificially constrain § 6426(e)(2)’s cross-reference to the definition
of taxable fuels in § 4083.
Here is how the company gets there. U.S. Venture first
contends that butane is not a taxable fuel for purposes of the
AFM tax credit. It rests its argument on the fact that the crossreference in § 6426(e) is precise and limited, drilling all the
way down into specific subsections within subsections—
namely, § 4083(a)(1)(A)–(C). These itemized subsections define taxable fuels to include only “(A) gasoline, (B) diesel fuel,
and (C) kerosene.” 26 U.S.C. § 4083(a)(1). U.S. Venture urges
us to go no further—to read “gasoline” to mean only pure
gasoline. Put more plainly, the company effectively sees a
stop sign after the cross-referenced subsections—it wants us
14 No. 20-1861
to quit reading after the reference to “(A) gasoline”—and thus
urges us to disregard what follows in the very same statutory
section. We decline to read the Tax Code that way.
To see the flaw in the company’s argument, we need only
look at § 4083(a) as it appears in the Tax Code:
(a) Taxable fuel.—For purposes of this subpart—
(1) In general.—The term “taxable fuel” means—
(A) gasoline,
(B) diesel fuel, and
(C) kerosene.
(2) Gasoline.—The term “gasoline”—
(A) includes any gasoline blend, other than qualified methanol or ethanol fuel (as defined in section
4041(b)(2)(B)), partially exempt methanol or ethanol fuel (as defined in section 4041(m)(2)), or a denatured alcohol, and
(B) includes, to the extent prescribed in regulations—
(i) any gasoline blend stock, and
(ii) any product commonly used as an additive
in gasoline (other than alcohol).
For purposes of subparagraph (B)(i), the term “gasoline
blend stock” means any petroleum product component of
gasoline.
Id. § 4083(a).
U.S. Venture is correct that § 4083(a)(1) defines “taxable
fuel” to include only “gasoline,” “diesel fuel,” and
No. 20-1861 15
“kerosene.” But § 4083(a)(2) immediately follows and defines
gasoline further. “Gasoline,” the statute expressly tells us, includes “any gasoline blend stock,” which we have already explained, includes butane. See id. § 4083(a)(2); see also 26 C.F.R.
§ 48.4081-1(c)(3)(i)(B) (“[G]asoline blendstocks means …
[b]utane.”). We cannot somehow artificially separate the
meaning “gasoline” carries in § 4083(a)(1)(A)—a meaning
given to it by § 4083(a)(2)—from the meaning Congress intended to give it in § 6426(e) through the inclusion of an express cross-reference.
Contrary to U.S. Venture’s invitation, we decline to follow
a congressionally mandated cross-reference only part of the
way. Instead, we must accept and follow the cross-referenced
definition in full. See Bennett v. Spear, 520 U.S. 154, 173 (1997)
(“It is the cardinal principle of statutory construction that it is
our duty to give effect, if possible, to every clause and word
of a statute[.]” (cleaned up)). U.S. Venture’s position offends
that principle. Our interpretation of the cross-reference contained in § 6426(e), by contrast, remains faithful to the statutory instruction to give “taxable fuel” its meaning “as defined
in” § 4083(a)(1)(A). See 26 U.S.C. § 6426(e)(2). Whether the
cross-reference is to the individual sub-paragraphs or to the
whole statute does not change the meaning that Congress
chose to give “gasoline” in § 4083 and, consequently, in
§ 6426(e).
* * *
Based on the context of the fuel excise tax, implementing
regulations, and the language of the AFM tax credit itself, we
conclude that butane is a “taxable fuel.” We further conclude
that although butane may be considered a liquefied petroleum gas in other contexts, because it is a “taxable fuel” under
16 No. 20-1861
§ 4081, it is excluded from the codified definition of “alternative fuels.” This reading is consistent with the long-standing
statutory and regulatory definition of “alternative fuels.” In
the end, then, we agree with the district court’s conclusion
that U.S. Venture does not qualify for the AFM tax credit in
§ 6426(e) for mixing butane with traditional gasoline in its
production and sale of motor fuel.
IV
We close with three parting observations.
First, our interpretation of the tax credit statute rests entirely on the language employed in § 6426(e) and the additional cross-referenced statutes and regulations identified in
the text. Finding the statutory language and structure clear,
we need not resort to the parties’ arguments based on legislative history. See Bruesewitz v. Wyeth LLC, 562 U.S. 223, 240
(2011) (“Since our interpretation of § 300aa–22(b)(1) is the
only interpretation supported by the text and structure of the
NCVIA, even those of us who believe legislative history is a
legitimate tool of statutory interpretation have no need to resort to it.”). We see no reason to look for meaning in congressional reports or floor statements when Congress conveyed
what it meant in the language it enacted into law in § 6426(e).
Second, we likewise place no weight on IRS Revenue Ruling 2018-2. In that ruling the IRS determined that butane was
a taxable fuel for purposes of § 6426(e) and, by extension, concluded that a taxpayer could not receive the AFM tax credit
for adding butane to gasoline. Revenue Ruling 2018-2 came
more than 13 years after the AFM was introduced and, even
more importantly, after the tax years for which U.S. Venture
sought to amend their filings. In these circumstances, we are
No. 20-1861 17
hesitant to rely on the ruling in interpreting the AFM tax
credit and related fuel excise tax provisions. Nor do we need
to resort to such extrinsic evidence in light of what we conclude to be the unambiguous commands of the statutory language. And because our analysis does not rely on Revenue
Ruling 2018-2 or other guidance issued by the IRS, we have
no need to consider what, if any, deference to give such rulings or guidance.
Third, we recognize that in 2019, Congress amended the
AFM tax credit statute, passing what it termed an “Extension
and Clarification of Excise Tax Credits Relating to Alternative
Fuels.” See H.R. Rep. 116-379 at 60 (2020). This amended version of the statute (made retroactive to all unpaid claims filed
after January 1, 2018) explicitly excluded liquefied petroleum
gases like butane from qualifying for the alternative fuel mixture tax credit. See id. § 6426(e) (2020). But neither this amendment nor the floor statements or committee reports accompanying its passage help us interpret the pre-2019 version of the
statute. See Bruesewitz, 562 U.S. at 242 (“Post-enactment legislative history (a contradiction in terms) is not a legitimate tool
of statutory interpretation.”). We do acknowledge, however,
that the 2019 amendment was made retroactive by Congress
and would apply to U.S. Venture’s tax returns filed after January 1, 2018. The amendment prevents future attempts to seek
AFM tax credits for using butane as a gasoline additive after
the effective date.
Outcome: For these reasons, we AFFIRM.
Plaintiff's Experts:
Defendant's Experts:
Comments: