[Federal Register Volume 60, Number 196 (Wednesday, October 11, 1995)]
[Rules and Regulations]
[Pages 52848-52856]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24603]
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 52 and 602
[TD 8622]
RIN 1545-AQ23
Exports of Chemicals That Deplete the Ozone Layer; Special Rules
for Certain Medical Uses of Chemicals That Deplete the Ozone Layer
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
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SUMMARY: This document contains final regulations relating to taxes
imposed on exports of ozone-depleting chemicals (ODCs), taxes imposed
on ODCs used as medical sterilants or propellants in metered-dose
inhalers, and floor stocks taxes on ODCs. The regulations reflect
changes to the law made by the Omnibus Budget Reconciliation Act of
1989, the Omnibus Budget Reconciliation Act of 1990, and the Energy
Policy Act of 1992 and affect persons who manufacture, import, export,
sell, or use ODCs.
EFFECTIVE DATE: These regulations are effective January 1, 1993.
FOR FURTHER INFORMATION CONTACT: Ruth Hoffman, (202) 622-3130 (not a
toll-free number).
SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act
The collections of information contained in these final regulations
have been reviewed and approved by the Office of Management and Budget
in accordance with the Paperwork Reduction Act (44 U.S.C. 3504(h))
under control number 1545-1361.
Estimated average annual burden per recordkeeper: 0.2 hour.
Estimated average annual burden per respondent: 0.1 hour.
Comments concerning the accuracy of this burden estimate and
suggestions for reducing this burden should be sent to the Internal
Revenue Service, Attn: IRS Reports Clearance Officer, PC:FP,
Washington, DC 20224, and to the Office of Management and Budget, Attn:
Desk Officer for the Department of the Treasury, Office of Information
and Regulatory Affairs, Washington, DC 20503.
Background
This document contains amendments to the Environmental Tax
Regulations (26 CFR part 52) relating to exports of ODCs under sections
4681 and 4682. Sections 4681 and 4682 were enacted as part of the
Omnibus Budget Reconciliation Act of 1989, and amended by the Omnibus
Budget Reconciliation Act of 1990 and the Energy Policy Act of 1992
(Energy Act).
Section 4682(d)(3) provides a limited exemption from tax for ODCs
that are exported. Although final regulations (TD 8370) under sections
4681 and 4682 were published in the Federal Register on November 4,
1991 (56 FR 56303), the section relating to exports of ODCs was
reserved.
The Energy Act increased and made uniform the base tax amounts for
all ODCs and extended the floor stocks tax to calendar years after
1994. The Energy Act also provides a reduced rate of tax for (1) ODCs
used as propellants in metered-dose inhalers (for years after 1992),
(2) ODCs used as medical sterilants (for 1993 only), and (3) methyl
chloroform (for 1993 only).
On January 15, 1993, proposed regulations (PS-89-91) relating to
exports of ODCs and the Energy Act changes were published in the
Federal Register (58 FR 4625). Written comments responding to the
notice of proposed rulemaking were received. A public hearing was not
held. After consideration of all the comments, the proposed regulations
are adopted as revised by this Treasury decision. The comments and
revisions are discussed below.
Explanation of Revisions and Summary of Comments
Mixtures
Under the 1991 final regulations, the creation of a mixture is
treated as a taxable use of the ODCs contained in the mixture unless a
person elects other treatment (the mixture election). The proposed
regulations provided, however, that the creation of a mixture for
export is not a taxable use of the ODCs contained in the mixture.
Commenters supported the proposed rule and suggested that it also apply
to mixtures created for feedstock use. These final regulations adopt
the proposed rule and extend its application to include the creation of
a mixture for feedstock use. However, these regulations do not adopt
the suggestion that the rule be further extended to apply to sales of
ODCs for the creation of a mixture.
Metered-Dose Inhalers
Several commenters pointed out that the proposed definition of a
metered-dose inhaler, by including the phrase directly to the lungs,
excluded two of the eight types of inhalers. They suggested that we
modify the definition to remove this phrase. The final regulations
adopt this suggestion.
Exemption Amount
One commenter pointed out that the provisions of the proposed
regulations describing exemption amounts should refer to exceptions
from tax under section 4682(d) rather than under section 4682(d)(3).
The final regulations adopt the suggested reference.
One commenter suggested that we add an example illustrating the
calculation of the exemption amount when a person is both a
manufacturer and an importer. The final regulations provide such an
example.
Registration
One commenter suggested that we specify how to register with the
IRS. The final regulations explain the registration procedure.
Credit or Refund for Exports
One commenter thought that the wording of the proposed rule
relating to a claim for credit or refund of tax paid on ODCs that are
exported was ambiguous as to which year's exemption limitation applies
to such a claim. The final regulations clarify that the applicable
limitation is the limitation for the calendar year during which the
ODCs were sold.
The same commenter raised questions about the documentation to be
submitted with a claim and suggested that the regulations provide more
information. Documentation needs to be submitted with a claim only if
specifically required. Neither the proposed nor the final regulations
[[Page 52849]]
require documentation to be submitted with the claim.
Another commenter suggested that for periods before 1993 we accept
export documentation similar to that required by the Environmental
Protection Agency. These final regulations provide that such
documentation is acceptable.
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in EO 12866. Therefore, a
regulatory assessment is not required. It also has been determined that
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5)
and the Regulatory Flexibility Act (5 U.S.C. chapter 6) do not apply to
these regulations, and, therefore, a Regulatory Flexibility Analysis is
not required. Pursuant to section 7805(f) of the Internal Revenue Code,
the notice of proposed rulemaking preceding these regulations was
submitted to the Small Business Administration for comment on its
impact on small business.
Drafting Information
The principal author of these regulations is Ruth Hoffman, Office
of Assistant Chief Counsel (Passthroughs and Special Industries).
However, other personnel from the IRS and Treasury Department
participated in their development.
List of Subjects
26 CFR Part 52
Chemicals, Excise taxes, Reporting and recordkeeping requirements.
26 CFR Part 602
Reporting and recordkeeping requirements.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR parts 52 and 602 are amended as follows:
PART 52--ENVIRONMENTAL TAXES
Paragraph 1. The authority citation for part 52 is amended by
adding an entry in numerical order to read in part as follows:
Authority: 26 U.S.C. 7805 * * *
Section 52.4682-5 also issued under 26 U.S.C. 4662(e)(4).
Sec. 52.4681-0 [Removed]
Par. 2. Section 52.4681-0 is removed.
Par. 3. Section 52.4681-1 is amended by:
1. Revising paragraph (a)(3)(ii).
2. Revising paragraph (c)(7)(iii)(A).
3. Revising paragraph (d)(3).
The revisions read as follows:
Sec. 52.4681-1 Taxes imposed with respect to ozone-depletingchemicals.
(a) * * *
(3) * * *
(ii) Dates on which tax imposed. The floor stocks tax is imposed on
January 1 of each calendar year after 1989.
* * * * *
(c) * * *
(7) * * *
(iii) * * *
(A) Section 52.4682-1(b)(2)(iii) (relating to mixture elections),
Sec. 52.4682-1(b)(2)(iv) (relating to mixtures for export), and
Sec. 52.4682-1(b)(2)(v) (relating to mixtures for use as a feedstock);
* * * * *
(d) * * *
(3) Post-1989 ODCs held for sale or for use in further manufacture
by any person other than the manufacturer or importer thereof on
January 1, 1990, and post-1989 and post-1990 ODCs that are so held on
January 1 of each calendar year after 1990.
Par. 4. Section 52.4682-1 is amended by:
1. Revising paragraph (a).
2. Revising the introductory text of paragraph (b)(2)(ii).
3. Adding paragraphs (b)(2)(iv) and (b)(2)(v).
4. Revising paragraphs (f) and (g).
5. Adding paragraph (h).
6. Adding and reserving paragraph (i).
7. Adding paragraph (j).
8. Adding and reserving paragraph (k).
The revisions and additions read as follows:
Sec. 52.4682-1 Ozone-depleting chemicals.
(a) Overview. This section provides rules relating to the tax
imposed on ozone-depleting chemicals (ODCs) under section 4681,
including rules for identifying taxable ODCs and determining when the
tax is imposed, and rules prescribing special treatment for certain
ODCs. See Sec. 52.4681-1(a)(1) and (c) for general rules and
definitions relating to the tax on ODCs.
(b) * * *
(2) * * *
(ii) Mixtures. Except as provided in paragraphs (b)(2)(iii), (iv),
and (v) of this section, the creation of a mixture containing two or
more ingredients is treated as a taxable use of the ODCs contained in
the mixture. For this purpose, a mixture cannot be represented by a
chemical formula, and an ODC is contained in a mixture only if the
chemical identity of the ODC is not changed. Thus, except as provided
in paragraphs (b)(2)(iii), (iv), and (v) of this section--
* * * * *
(iv) Special rule for exports. The creation of a mixture for export
is not a taxable use of the ODCs contained in the mixture. If a
manufacturer or importer sells a mixture for export, Sec. 52.4682-5
applies to the ODCs contained in the mixture. See Sec. 52.4682-5(e) for
rules relating to liability of a purchaser for tax if the mixture is
not exported.
(v) Special rule for use as a feedstock. The creation of a mixture
for use as a feedstock (within the meaning of paragraph (c) of this
section) is not a taxable use of the ODCs contained in the mixture.
* * * * *
(f) Methyl chloroform; reduced rate of tax in 1993. The amount of
tax imposed on methyl chloroform is determined under section 4682(g)(5)
if the manufacturer or importer of the methyl chloroform sells or uses
it during 1993.
(g) ODCs used as medical sterilants--(1) Phase-in of tax. The
amount of tax imposed on an ODC is determined under section 4682(g)(4)
if the manufacturer or importer of the ODC--
(i) Uses the ODC during 1993 as a medical sterilant; or
(ii) Sells the ODC in a qualifying sale (within the meaning of
paragraph (g)(4) of this section) during 1993.
(2) Excess payments--(i) In general. Under section 4682(g)(4)(B), a
credit against income tax (without interest) or a refund of tax
(without interest) is allowed to a person if--
(A) The person uses an ODC during 1993 as a medical sterilant; and
(B) The amount of any tax paid with respect to the ODC under
section 4681 or 4682 exceeds the amount that would have been determined
under section 4682(g)(4).
(ii) Amount of credit or refund. The amount of credit or refund of
tax is equal to the excess of--
(A) The tax that was paid with respect to the ODCs under sections
4681 and 4682; over
(B) The tax that would have been imposed under section 4682(g)(4).
(iii) Procedural rules. (A) The amount determined under section
4682(g)(4)(B) and paragraph (g)(2)(ii) of this section is treated as a
credit described in section 34(a) (relating to credits for gasoline and
special fuels) unless a claim for refund has been filed.
(B) See section 6402 and the regulations under that section for
procedural rules relating to claiming a credit or refund of tax.
(3) Definition of use as a medical sterilant. An ODC is used as a
medical
[[Page 52850]]
sterilant if it is used in the manufacture of sterilant gas.
(4) Qualifying sale. A sale of an ODC for use as a medical
sterilant is a qualifying sale if the requirements of Sec. 52.4682-
2(b)(3) are satisfied with respect to the sale.
(h) ODCs used as propellants in metered-dose inhalers--(1) Reduced
rate of tax. The amount of tax imposed on an ODC is determined under
section 4682(g)(4) if the manufacturer or importer of the ODC--
(i) Uses the ODC after 1992 as a propellant in a metered-dose
inhaler; or
(ii) Sells the ODC in a qualifying sale (within the meaning of
paragraph (h)(4) of this section) after 1992.
(2) Excess payments--(i) In general. Under section 4682(g)(4)(B), a
credit against income tax (without interest) or a refund of tax
(without interest) is allowed to a person if--
(A) The person uses an ODC after 1992 as a propellant in a metered-
dose inhaler; and
(B) The amount of any tax paid with respect to the ODC under
section 4681 or 4682 exceeds the amount that would have been determined
under section 4682(g)(4).
(ii) Amount of credit or refund. The amount of credit or refund of
tax is equal to the excess of--
(A) The tax that was paid with respect to the ODCs under sections
4681 and 4682; over
(B) The tax that would have been imposed under section 4682(g)(4).
(iii) Procedural rules--(A) The amount determined under section
4682(g)(4)(B) and paragraph (h)(2)(ii) of this section is treated as a
credit described in section 34(a) (relating to credits for gasoline and
special fuels) unless a claim for refund has been filed.
(B) See section 6402 and the regulations under that section for
procedural rules relating to claiming a credit or refund of tax.
(3) Definition of metered-dose inhaler. A metered-dose inhaler is
an aerosol device that delivers a precisely-measured dose of a
therapeutic drug.
(4) Qualifying sale. A sale of an ODC for use as a propellant for a
metered-dose inhaler is a qualifying sale if the requirements of
Sec. 52.4682-2(b)(4) are satisfied with respect to the sale.
(i) [Reserved]
(j) Exports; cross-reference. For the treatment of exports of ODCs,
see Sec. 52.4682-5.
(k) Recycling. [Reserved]
Par. 5. Section 52.4682-2 is amended by:
1. Adding paragraphs (a)(1)(iii) and (a)(1)(iv).
2. Amending the second sentence of paragraph (a)(2) by:
a. Removing the language ``submission of a document to'' and adding
``registration with'' in its place.
b. Removing the language ``registration certificates'' and adding
``certificates'' in its place.
3. Removing the language ``registration'' from paragraphs (b)(1)(i)
and (b)(2)(i).
4. Adding paragraphs (b)(3) and (b)(4).
5. Revising the heading for paragraph (d).
6. Revising paragraph (d)(1)(i).
7. Adding paragraphs (d)(4) and (d)(5).
The additions and revisions read as follows:
Sec. 52.4682-2 Qualifying sales.
(a) * * *
(1) * * *
(iii) Under section 4682(g)(4) and Sec. 52.4682-1(g) (relating to
ODCs used as medical sterilants), ODCs sold in qualifying sales are
taxed at a reduced rate in 1993.
(iv) Under section 4682(g)(4) and Sec. 52.4682-1(h) (relating to
ODCs used as propellants in metered-dose inhalers), ODCs sold in
qualifying sales are taxed at a reduced rate in years after 1992.
* * * * *
(b) * * *
(3) Use as medical sterilants. A sale of ODCs is a qualifying sale
for purposes of Sec. 52.4682-1(g) if the manufacturer or importer of
the ODCs--
(i) Obtains a certificate in substantially the form set forth in
paragraph (d)(4) of this section from the purchaser of the ODCs; and
(ii) Relies on the certificate in good faith.
(4) Use as propellants in metered-dose inhalers. A sale of ODCs is
a qualifying sale for purposes of Secs. 52.4682-1(h) and 52.4682-
4(b)(2)(vii) if the manufacturer or importer of the ODCs--
(i) Obtains a certificate in substantially the form set forth in
paragraph (d)(5) of this section from the purchaser of the ODCs; and
(ii) Relies on the certificate in good faith.
* * * * *
(d) Certificate--(1) * * * (i) Rules relating to all certificates.
This paragraph (d) sets forth certificates that satisfy the
requirements of paragraphs (b)(1) through (4) of this section. The
certificate shall consist of a statement executed and signed under
penalties of perjury by a person with authority to bind the purchaser.
A certificate provided under paragraph (d)(2) or (5) of this section
may apply to a single purchase or to multiple purchases and need not
specify an expiration date. A certificate provided under paragraph
(d)(3) or (4) of this section may apply to a single purchase or
multiple purchases, and will expire as of December 31, 1993, unless an
earlier expiration date is specified in the certificate. A new
certificate must be given to the supplier if any information on the
current certificate changes. The certificate may be included as part of
any business records normally used to document a sale.
* * * * *
(4) Certificate relating to ODCs used as medical sterilants--(i)
ODCs that will be resold for use by the second purchaser as medical
sterilants. If the purchaser will resell the ODCs to a second purchaser
for use by such second purchaser as medical sterilants, the certificate
provided by the purchaser must be in substantially the following form:
CERTIFICATE OF PURCHASER OF CHEMICALS THAT WILL BE RESOLD FOR USE BY
THE SECOND PURCHASER AS MEDICAL STERILANTS
(To support tax-reduced sales under section 4682(g)(4) of the Internal
Revenue Code.)
Effective Date---------------------------------------------------------
Expiration Date--------------------------------------------------------
(not after 12/31/93)
The undersigned purchaser (Purchaser) certifies the following
under penalties of perjury:
The following percentage of ozone-depleting chemicals purchased
from:
----------------------------------------------------------------------
(Name of seller)
----------------------------------------------------------------------
(Address of seller)
will be resold by Purchaser to persons (Second Purchasers) that
certify to Purchaser that they are purchasing the ozone-depleting
chemicals for use as medical sterilants (as defined in Sec. 52.4682-
1(g)(3) of the Environmental Tax Regulations).
------------------------------------------------------------------------
Product Percentage
------------------------------------------------------------------------
CFC-12..................................................... __________
------------------------------------------------------------------------
This certificate applies to (check and complete as applicable):
______ All shipments to Purchaser at the following location(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
______ All shipments to Purchaser under the following Purchaser
account number(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
______ All shipments to Purchaser under the following purchase
order(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
______ One or more shipments to Purchaser identified as follows:
[[Page 52851]]
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Purchaser will not claim a credit or refund under section
4682(g)(4) of the Internal Revenue Code for any ozone-depleting
chemicals covered by this certificate.
Purchaser understands that any use by Purchaser of the ozone-
depleting chemicals to which this certificate applies other than for
the purpose set forth in this certificate may result in the
withdrawal by the Internal Revenue Service of Purchaser's right to
provide a certificate.
Purchaser will retain the business records needed to document
the sales covered by this certificate and will make such records
available for inspection by Government officers. Purchaser also will
retain and make available for inspection by Government officers the
certificates of its Second Purchasers.
Purchaser has not been notified by the Internal Revenue Service
that its right to provide a certificate has been withdrawn. In
addition, the Internal Revenue Service has not notified Purchaser
that the right to provide a certificate has been withdrawn from any
Second Purchaser who will purchase ozone-depleting chemicals to
which this certificate applies.
Purchaser understands that the fraudulent use of this
certificate may subject Purchaser and all parties making such
fraudulent use of this certificate to a fine or imprisonment, or
both, together with the costs of prosecution.
----------------------------------------------------------------------
Name of Purchaser
----------------------------------------------------------------------
Address of Purchaser
----------------------------------------------------------------------
----------------------------------------------------------------------
Taxpayer Identifying Number of Purchaser
----------------------------------------------------------------------
Title of person signing
----------------------------------------------------------------------
Printed or typed name of person signing
----------------------------------------------------------------------
Signature
(ii) ODCs that will be used by the purchaser as medical sterilants.
If the purchaser will use the ODCs as medical sterilants, the
certificate provided by the purchaser must be in substantially the
following form:
CERTIFICATE OF PURCHASER OF CHEMICALS THAT WILL BE USED BY THE
PURCHASER AS MEDICAL STERILANTS
(To support tax-reduced sales under section 4682(g)(4) of the Internal
Revenue Code.)
Effective Date---------------------------------------------------------
Expiration Date--------------------------------------------------------
(not after 12/31/93)
The undersigned purchaser (Purchaser) certifies the following
under penalties of perjury:
The following percentage of ozone-depleting chemicals purchased
from:
----------------------------------------------------------------------
(Name of seller)
----------------------------------------------------------------------
(Address of seller)
will be used by Purchaser as medical sterilants (as defined in
Sec. 52.4682-1(g)(3) of the Environmental Tax Regulations).
------------------------------------------------------------------------
Product Percentage
------------------------------------------------------------------------
CFC-12..................................................... __________
------------------------------------------------------------------------
This certificate applies to (check and complete as applicable):
______ All shipments to Purchaser at the following location(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
______ All shipments to Purchaser under the following Purchaser
account number(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
______ All shipments to Purchaser under the following purchase
order(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
______ One or more shipments to Purchaser identified as follows:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Purchaser will not claim a credit or refund under section
4682(g)(4) of the Internal Revenue Code for any ozone-depleting
chemicals covered by this certificate.
Purchaser understands that any use by Purchaser of the ozone-
depleting chemicals to which this certificate applies other than as
medical sterilants may result in the withdrawal by the Internal
Revenue Service of Purchaser's right to provide a certificate.
Purchaser will retain the business records needed to document
the use as medical sterilants of the ozone-depleting chemicals to
which this certificate applies and will make such records available
for inspection by Government officers.
Purchaser has not been notified by the Internal Revenue Service
that its right to provide a certificate has been withdrawn.
Purchaser understands that the fraudulent use of this
certificate may subject Purchaser and all parties making such
fraudulent use of this certificate to a fine or imprisonment, or
both, together with the costs of prosecution.
----------------------------------------------------------------------
Name of Purchaser
----------------------------------------------------------------------
Address of Purchaser
----------------------------------------------------------------------
----------------------------------------------------------------------
Taxpayer Identifying Number of Purchaser
----------------------------------------------------------------------
Title of person signing
----------------------------------------------------------------------
Printed or typed name of person signing
----------------------------------------------------------------------
Signature
(5) Certificate relating to ODCs used as propellants in metered-
dose inhalers--(i) ODCs that will be resold for use by the second
purchaser as propellants in metered-dose inhalers. If the purchaser
will resell the ODCs to a second purchaser for use by such second
purchaser as propellants in metered-dose inhalers, the certificate
provided by the purchaser must be in substantially the following form:
CERTIFICATE OF PURCHASER OF CHEMICALS THAT WILL BE RESOLD FOR USE BY
THE SECOND PURCHASER AS PROPELLANTS IN METERED-DOSE INHALERS
(To support tax-reduced sales under section 4682(g)(4) of the Internal
Revenue Code.)
Date-------------------------------------------------------------------
The undersigned purchaser (Purchaser) certifies the following
under penalties of perjury:
The following percentage of ozone-depleting chemicals purchased
from:
----------------------------------------------------------------------
(Name of seller)
----------------------------------------------------------------------
(Address of seller)
will be resold by Purchaser to persons (Second Purchasers) that
certify to Purchaser that they are purchasing the ozone-depleting
chemicals for use as propellants in metered-dose inhalers (as
defined in Sec. 52.4682-1(h)(3) of the Environmental Tax
Regulations).
------------------------------------------------------------------------
Product Percentage
------------------------------------------------------------------------
CFC-11..................................................... ________
CFC-12..................................................... ________
CFC-114.................................................... ________
------------------------------------------------------------------------
This certificate applies to (check and complete as applicable):
________ All shipments to Purchaser at the following location(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
________ All shipments to Purchaser under the following Purchaser
account number(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
________ All shipments to Purchaser under the following purchase
order(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
________ One or more shipments to Purchaser identified as follows:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Purchaser will not claim a credit or refund under section
4682(g)(4) of the Internal Revenue Code for any ozone-depleting
chemicals covered by this certificate.
Purchaser understands that any use by Purchaser of the ozone-
depleting chemicals to which this certificate applies other than for
the purpose set forth in this certificate may result in the
withdrawal by the Internal Revenue Service of Purchaser's right to
provide a certificate.
Purchaser will retain the business records needed to document
the sales covered by this certificate and will make such records
available for inspection by Government officers. Purchaser also will
retain and make available for inspection by Government
[[Page 52852]]
officers the certificates of its Second Purchasers.
Purchaser has not been notified by the Internal Revenue Service
that its right to provide a certificate has been withdrawn. In
addition, the Internal Revenue Service has not notified Purchaser
that the right to provide a certificate has been withdrawn from any
Second Purchaser who will purchase ozone-depleting chemicals to
which this certificate applies.
Purchaser understands that the fraudulent use of this
certificate may subject Purchaser and all parties making such
fraudulent use of this certificate to a fine or imprisonment, or
both, together with the costs of prosecution.
----------------------------------------------------------------------
Name of Purchaser
----------------------------------------------------------------------
Address of Purchaser
----------------------------------------------------------------------
----------------------------------------------------------------------
Taxpayer Identifying Number of Purchaser
----------------------------------------------------------------------
Title of person signing
----------------------------------------------------------------------
Printed or typed name of person signing
----------------------------------------------------------------------
Signature
(ii) ODCs that will be used by the purchaser as propellants in
metered-dose inhalers. If the purchaser will use the ODCs as
propellants in metered-dose inhalers, the certificate provided by the
purchaser must be in substantially the following form:
CERTIFICATE OF PURCHASER OF CHEMICALS THAT WILL BE USED BY THE
PURCHASER AS PROPELLANTS IN METERED-DOSE INHALERS
(To support tax-reduced sales under section 4682(g)(4) of the Internal
Revenue Code.)
Date-------------------------------------------------------------------
The undersigned purchaser (Purchaser) certifies the following
under penalties of perjury:
The following percentage of ozone-depleting chemicals purchased
from:
----------------------------------------------------------------------
(Name of seller)
----------------------------------------------------------------------
(Address of seller)
will be used by Purchaser as propellants in metered-dose inhalers
(as defined in Sec. 52.4682-1(h)(3) of the Environmental Tax
Regulations).
------------------------------------------------------------------------
Product Percentage
------------------------------------------------------------------------
CFC-11..................................................... ________
CFC-12..................................................... ________
CFC-114.................................................... ________
------------------------------------------------------------------------
This certificate applies to (check and complete as applicable):
________ All shipments to Purchaser at the following location(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
________ All shipments to Purchaser under the following Purchaser
account number(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
________ All shipments to Purchaser under the following purchase
order(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
________ One or more shipments to Purchaser identified as follows:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Purchaser will not claim a credit or refund under section
4682(g)(4) of the Internal Revenue Code for any ozone-depleting
chemicals covered by this certificate.
Purchaser understands that any use by Purchaser of the ozone-
depleting chemicals to which this certificate applies other than as
propellants in metered-dose inhalers may result in the withdrawal by
the Internal Revenue Service of Purchaser's right to provide a
certificate.
Purchaser will retain the business records needed to document
the use as propellants in metered-dose inhalers of the ozone-
depleting chemicals to which this certificate applies and will make
such records available for inspection by Government officers.
Purchaser has not been notified by the Internal Revenue Service
that its right to provide a certificate has been withdrawn.
Purchaser understands that the fraudulent use of this
certificate may subject Purchaser and all parties making such
fraudulent use of this certificate to a fine or imprisonment, or
both, together with the costs of prosecution.
----------------------------------------------------------------------
Name of Purchaser
----------------------------------------------------------------------
Address of Purchaser
----------------------------------------------------------------------
----------------------------------------------------------------------
Taxpayer Identifying Number of Purchaser
----------------------------------------------------------------------
Title of person signing
----------------------------------------------------------------------
Printed or typed name of person signing
----------------------------------------------------------------------
Signature
Par. 6. Section 52.4682-4 is amended by:
1. Removing the introductory text of paragraph (b)(2).
2. Revising the first sentence of paragraph (b)(2)(i)(B)(1).
3. Adding paragraphs (b)(2)(vi) through (b)(2)(viii).
4. Adding a sentence at the end of paragraph (d)(1)(i).
5. Revising paragraph (d)(1)(iv)(A)(1).
6. Adding paragraph (d)(4).
7. Revising paragraph (e)(4)(i).
8. Redesignating paragraph (e)(5) as paragraph (e)(6) and adding a
new paragraph (e)(5).
9. Revising Example 5 of newly designated paragraph (e)(6).
The revisions and additions read as follows:
Sec. 52.4682-4 Floor stocks tax.
* * * * *
(b) * * *
(2) * * *
(i) * * *
(B) * * * (1) In general. In the case of the floor stocks tax
imposed on January 1 of a calendar year after 1990, the tax is not
imposed on an ODC that has been mixed with any other ingredients, but
only if it is established that such ingredients contribute to the
accomplishment of the purpose for which the mixture will be used. * * *
* * * * *
(vi) ODCs to be exported--(A) In general. The floor stocks tax is
not imposed on any ODC that was sold in a qualifying sale for export
(as defined in Sec. 52.4682-5(d)(1)).
(B) ODCs sold before January 1, 1993. An ODC that was sold by its
manufacturer or importer before January 1, 1993, is treated, for
purposes of this paragraph (b)(2)(vi), as an ODC that was sold in a
qualifying sale for export for purposes of Sec. 52.4682-5(d)(1) if the
ODC will be exported.
(vii) ODCs used as propellants in metered-dose inhalers; years
after 1992--(A) In general. The floor stocks tax is not imposed on
January 1 of calendar years after 1992 on any ODC that was sold in a
qualifying sale for use as a propellant in a metered-dose inhaler (as
defined in Sec. 52.4682-1(h)).
(B) ODCs sold before January 1, 1993. An ODC that was sold by its
manufacturer or importer before January 1, 1993, is treated, for
purposes of this paragraph (b)(2)(vii), as an ODC that was sold in a
qualifying sale for purposes of Sec. 52.4682-1(h) if the ODC will be
used as a propellant in a metered-dose inhaler (within the meaning of
Sec. 52.4682-1(h)).
(viii) ODCs used as medical sterilants; 1993. The floor stocks tax
is not imposed in 1993 on any ODC held for use as a medical sterilant
(as defined in Sec. 52.4682-1(g)).
* * * * *
(d) * * *
(1) * * *
(i) * * * The amount of the floor stocks tax imposed on the ODCs
contained in a nonexempt mixture is computed on the basis of the weight
of the ODCs in that mixture.
* * * * *
(iv) * * *
(A) * * *
(1) The tentative tax amount is determined, except as provided in
paragraph (d)(2), (3), or (4) of this section, by reference to the rate
of tax prescribed in section 4681(b)(1)(B) and the ozone-depletion
factors prescribed in section 4682(b).
* * * * *
[[Page 52853]]
(4) Methyl chloroform; 1993. In the case of methyl chloroform, the
tentative tax amount is determined under section 4682(g)(5) for
purposes of computing the floor stocks tax imposed on January 1, 1993.
(e) * * *
(4) * * *
(i) At least 400 pounds of ODCs that are not described in paragraph
(d)(2) or (d)(3) of this section and are otherwise subject to tax;
* * * * *
(5) Calendar years after 1994. In the case of the floor stocks tax
imposed on January 1 of 1995 and each following calendar year, a person
is liable for the tax only if, on such date, the person holds--
(i) At least 400 pounds of ODCs that are not described in paragraph
(d)(3) or (d)(4) of this section and are otherwise subject to tax;
(ii) At least 50 pounds of ODCs that are described in paragraph
(d)(3) of this section and are otherwise subject to tax; or
(iii) At least 1000 pounds of ODCs that are described in paragraph
(d)(4) of this section and are otherwise subject to tax.
(6) * * *
Example 5. (a) On January 1, 1994, D holds for sale 300 pounds
of CFC-113 (an ODC not described in paragraph (d)(2) or (d)(3) of
this section) and 25 pounds of Halon-1301 (an ODC described in
paragraph (d)(3) of this section). D is liable for the floor stocks
tax imposed on January 1, 1994, because 25 pounds of Halon-1301
exceeds the de minimis amount specified in paragraph (e)(4)(iii) of
this section. The 300 pounds of CFC-113 is less than the amount
specified in paragraph (e)(4)(i) of this section. Nevertheless, tax
is imposed on both the 25 pounds of Halon-1301 and the 300 pounds of
CFC-113.
(b) The amount of the floor stocks tax is determined separately
for the 300 pounds of CFC-113 and the 25 pounds of Halon-1301 and is
equal to the difference between the tentative tax amount and the
amount of tax previously imposed on those ODCs. For Halon-1301, for
example, the tax is determined as follows. The tentative tax amount
is $1,087.50 ($4.35 (the base tax amount in 1994) x 10 (the ozone-
depletion factor for Halon-1301) x 25 (the number of pounds
held)). The tax previously imposed on the Halon-1301 is $6.28 ($3.35
(the base tax amount in 1993) x 10 (the ozone-depletion factor for
Halon-1301) x 0.75 percent (the applicable percentage determined
under section 4682(g)(2)(A)) x 25 (the number of pounds held)).
Thus, the floor stocks tax imposed on the 25 pounds of Halon-1301 in
1994 is $1,081.22, the difference between $1,087.50 (the tentative
tax amount) and $6.28 (the tax previously imposed).
* * * * *
Par. 7. Section 52.4682-5 is added to read as follows:
Sec. 52.4682-5 Exports.
(a) Overview. This section provides rules relating to the tax
imposed under section 4681 on ozone-depleting chemicals (ODCs) that are
exported. In general, tax is not imposed on ODCs that a manufacturer or
importer sells for export, or for resale by the purchaser to a second
purchaser for export, if the procedural requirements set forth in
paragraph (d) of this section are met. The tax benefit of this
exemption is limited, however, to the manufacturer's or importer's
exemption amount. Thus, if the tax that would otherwise be imposed
under section 4681 on ODCs that a manufacturer or importer sells for
export exceeds this exemption amount, a tax equal to the excess is
imposed on the ODCs. The exemption amount, which is determined
separately for post-1989 ODCs and post-1990 ODCs, is calculated for
each calendar year in accordance with the rules of paragraph (c) of
this section. This section also provides rules under which a tax
imposed under section 4681 on exported ODCs may be credited or
refunded, subject to the same limit on tax benefits, if the procedural
requirements set forth in paragraph (f) of this section are met. See
Sec. 52.4681-1(c) for definitions relating to the tax on ODCs.
(b) Exemption or partial exemption from tax--(1) In general. Except
as provided in paragraph (b)(2) of this section, no tax is imposed on
an ODC if the manufacturer or importer of the ODC sells the ODC in a
qualifying sale for export (within the meaning of paragraph (d)(1) of
this section).
(2) Tax imposed if exemption amount exceeded--(i) Post-1989 ODCs.
The tax imposed on post-1989 ODCs that a manufacturer or importer sells
in qualifying sales for export during a calendar year is equal to the
excess (if any) of--
(A) The tax that would be imposed on the ODCs but for section
4682(d)(3) and this section; over
(B) The post-1989 ODC exemption amount for the calendar year
determined under paragraph (c)(1) of this section.
(ii) Post-1990 ODCs. The tax imposed on post-1990 ODCs that a
manufacturer or importer sells in qualifying sales for export during a
calendar year is equal to the excess (if any) of--
(A) The tax that would be imposed on the ODCs but for section
4682(d)(3) and this section; over
(B) The post-1990 ODC exemption amount for the calendar year
determined under paragraph (c)(2) of this section.
(iii) Allocation of tax--(A) Post-1989 ODCs. The tax (if any)
determined under paragraph (b)(2)(i) of this section may be allocated
among the post-1989 ODCs on which it is imposed in any manner, provided
that the amount allocated to any post-1989 ODC does not exceed the tax
that would be imposed on such ODC but for section 4682(d)(3) and this
section.
(B) Post-1990 ODCs. The tax (if any) determined under paragraph
(b)(2)(ii) of this section may be allocated among the post-1990 ODCs on
which it is imposed in any manner, provided that the amount allocated
to any post-1990 ODC does not exceed the tax that would be imposed on
such ODC but for section 4682(d)(3) and this section.
(c) Exemption amount--(1) Post-1989 ODC exemption amount. A
manufacturer's or importer's post-1989 ODC exemption amount for a
calendar year is the sum of the following amounts:
(i) The 1986 export percentage of the aggregate tax that would (but
for section 4682(d), section 4682(g), and this section) be imposed
under section 4681 on the maximum quantity, determined without regard
to additional production allowances, of post-1989 ODCs that the person
is permitted to manufacture during the calendar year under rules
prescribed by the Environmental Protection Agency (40 CFR part 82).
(ii) The aggregate tax that would (but for section 4682(d), section
4682(g), and this section) be imposed under section 4681 on post-1989
ODCs that the person manufactures during the calendar year under any
additional production allowance granted by the Environmental Protection
Agency.
(iii) The aggregate tax that would (but for section 4682(d),
section 4682(g), and this section) be imposed under section 4681 on
post-1989 ODCs imported by the person during the calendar year.
(2) Post-1990 ODC exemption amount. A manufacturer's or importer's
post-1990 ODC exemption amount for a calendar year is the sum of the
following amounts:
(i) The 1989 export percentage of the aggregate tax that would (but
for section 4682(d), section 4682(g), and this section) be imposed
under section 4681 on the maximum quantity, determined without regard
to additional production allowances, of post-1990 ODCs the person is
permitted to manufacture during the calendar year under rules
prescribed by the Environmental Protection Agency.
(ii) The aggregate tax that would (but for section 4682(d), section
4682(g), and
[[Page 52854]]
this section) be imposed under section 4681 on post-1990 ODCs that the
person manufactures during the calendar year under any additional
production allowance granted by the Environmental Protection Agency.
(iii) The aggregate tax that would (but for section 4682(d),
section 4682(g), and this section) be imposed under section 4681 on
post-1990 ODCs imported by the person during the calendar year.
(3) Definitions--(i) 1986 export percentage. See section
4682(d)(3)(B)(ii) for the meaning of the term 1986 export percentage.
(ii) 1989 export percentage. See section 4682(d)(3)(C) for the
meaning of the term 1989 export percentage.
(d) Procedural requirements relating to tax-free sales for export--
(1) Qualifying sales--(i) In general. A sale of ODCs is a qualifying
sale for export if--
(A) The seller is the manufacturer or importer of the ODCs and the
purchaser is a purchaser for export or for resale to a second purchaser
for export;
(B) At the time of the sale, the seller and the purchaser are
registered with the Internal Revenue Service; and
(C) At the time of the sale, the seller--
(1) Has an unexpired certificate in substantially the form set
forth in paragraph (d)(3)(ii) of this section from the purchaser; and
(2) Relies on the certificate in good faith.
(ii) Qualifying resale. A sale of ODCs is a qualifying resale for
export if--
(A) The seller acquired the ODCs in a qualifying sale for export
and the purchaser is a second purchaser for export;
(B) At the time of the sale, the seller and the purchaser are
registered with the Internal Revenue Service; and
(C) At the time of the sale, the seller--
(1) Has an unexpired certificate in substantially the form set
forth in paragraph (d)(3)(ii)(A) of this section from the purchaser of
the ODCs; and
(2) Relies on the certificate in good faith.
(iii) Special rule relating to sales made before July 1, 1993. If a
sale for export made before July 1, 1993, satisfies all the
requirements of paragraph (d)(1)(i) or (ii) of this section other than
those relating to registration, the sale will be treated as a
qualifying sale (or resale) for export. Thus, a sale made before July
1, 1993, may be a qualifying sale (or resale) even if the parties to
the sale are not registered and the required certificate does not
contain statements regarding registration.
(iv) Registration. Application for registration is made on Form 637
(or any other form designated for the same use by the Commissioner)
according to the instructions applicable to the form. A person is
registered only if the district director has issued that person a
letter of registration and it has not been revoked or suspended. The
effective date of the registration must be no earlier than the date on
which the district director signs the letter of registration. Each
business unit that has, or is required to have, a separate employer
identification number is treated as a separate person.
(2) Good faith reliance. The requirements of paragraph (d)(1) of
this section are not satisfied with respect to a sale of ODCs and the
sale is not a qualifying sale (or resale) if, at the time of the sale--
(i) The seller has reason to believe that the ODCs are not
purchased for export; or
(ii) The Internal Revenue Service has notified the seller that the
purchaser's registration has been revoked or suspended.
(3) Certificate--(i) In general. The certificate required under
paragraph (d)(1) of this section consists of a statement executed and
signed under penalties of perjury by a person with authority to bind
the purchaser, in substantially the same form as model certificates
provided in paragraph (d)(3)(ii) of this section, and containing all
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 earliest of the following dates--
(A) The date one year after the effective date of the certificate;
(B) The date the purchaser provides a new certificate to the
seller; or
(C) The date the seller is notified by the Internal Revenue Service
or the purchaser that the purchaser's registration has been revoked or
suspended.
(ii) Model certificates--(A) ODCs sold for export by the purchaser.
If the purchaser will export the ODCs, the certificate must be in
substantially the following form:
CERTIFICATE OF PURCHASER OF CHEMICALS FOR EXPORT BY THE PURCHASER
(To support tax-free sales under section 4682(d)(3) of the Internal
Revenue Code.)
Effective Date---------------------------------------------------------
Expiration Date--------------------------------------------------------
(not more than one year
after effective date)
The undersigned purchaser (Purchaser) certifies the following
under penalties of perjury:
Purchaser is registered with the Internal Revenue Service as a
purchaser of ozone-depleting chemicals for export under registration
number __________. Purchaser's registration has not been suspended
or revoked by the Internal Revenue Service.
The following percentage of ozone-depleting chemicals purchased
from:
----------------------------------------------------------------------
(Name of seller)
----------------------------------------------------------------------
(Address of seller)
----------------------------------------------------------------------
(Taxpayer identifying number of seller)
are purchased for export by Purchaser.
------------------------------------------------------------------------
Product Percentage
------------------------------------------------------------------------
CFC-11.................................................... __________
CFC-12.................................................... __________
CFC-113................................................... __________
CFC-114................................................... __________
CFC-115................................................... __________
Halon-1211................................................ __________
Halon-1301................................................ __________
Halon-2402................................................ __________
Carbon tetrachloride...................................... __________
Methyl chloroform......................................... __________
Other (specify)
______________........................................... __________
------------------------------------------------------------------------
This certificate applies to (check and complete as applicable):
______ All shipments to Purchaser at the following location(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
______ All shipments to Purchaser under the following Purchaser
account number(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
______ All shipments to Purchaser under the following purchase
order(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
______ One or more shipments to Purchaser identified as follows:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Purchaser understands that Purchaser will be liable for tax
imposed under section 4681 if Purchaser does not export the ODCs to
which this certificate applies.
Purchaser understands that any use of the ODCs to which this
certificate applies other than for export may result in the
revocation of Purchaser's registration.
Purchaser will retain the business records needed to document
the export of the ozone-depleting chemicals to which this
certificate applies and will make such records available for
inspection by Government officers.
Purchaser has not been notified by the Internal Revenue Service
that its registration has been revoked or suspended.
Purchaser understands that the fraudulent use of this
certificate may subject Purchaser and all parties making such
fraudulent use of this certificate to a fine or imprisonment, or
both, together with the costs of prosecution.
[[Page 52855]]
----------------------------------------------------------------------
Name of Purchaser
1---------------------------------------------------------------------
Address of Purchaser
----------------------------------------------------------------------
----------------------------------------------------------------------
Taxpayer Identifying Number of Purchaser
----------------------------------------------------------------------
Title of person signing
----------------------------------------------------------------------
Printed or typed name of person signing
----------------------------------------------------------------------
Signature
(B) ODCs sold by the purchaser for resale for export by the second
purchaser. If the purchaser will resell the ODCs to a second purchaser
for export by the second purchaser, the certificate must be in
substantially the following form:
CERTIFICATE OF PURCHASER OF CHEMICALS FOR RESALE FOR EXPORT BY THE
SECOND PURCHASER
(To support tax-free sales under section 4682(d)(3) of the Internal
Revenue Code.)
Effective Date---------------------------------------------------------
Expiration Date--------------------------------------------------------
(not more than one year
after effective date)
The undersigned purchaser (Purchaser) certifies the following
under penalties of perjury:
Purchaser is registered with the Internal Revenue Service as a
purchaser of ozone-depleting chemicals for export under registration
number __________. Purchaser's registration has not been suspended
or revoked by the Internal Revenue Service.
The following percentage of ozone-depleting chemicals purchased
from:
----------------------------------------------------------------------
(Name of seller)
----------------------------------------------------------------------
(Address of seller)
----------------------------------------------------------------------
(Taxpayer identifying number of seller)
will be resold by Purchaser to persons (Second Purchasers) that
certify to Purchaser that they are (1) registered with the Internal
Revenue Service as purchasers of ozone-depleting chemicals for
export and (2) purchasing the ozone-depleting chemicals for export.
------------------------------------------------------------------------
Product Percentage
------------------------------------------------------------------------
CFC-11..................................................... __________
CFC-12..................................................... __________
CFC-113.................................................... __________
CFC-114.................................................... __________
CFC-115.................................................... __________
Halon-1211................................................. __________
Halon-1301................................................. __________
Halon-2402................................................. __________
Carbon tetrachloride....................................... __________
Methyl chloroform.......................................... __________
Other (specify)
______________............................................. __________
------------------------------------------------------------------------
This certificate applies to (check and complete as applicable):
______ All shipments to Purchaser at the following location(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
______ All shipments to Purchaser under the following Purchaser
account number(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
______ All shipments to Purchaser under the following purchase
order(s):
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
______ One or more shipments to Purchaser identified as follows:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Purchaser understands that Purchaser will be liable for tax
imposed under section 4681 if Purchaser does not resell the ODCs to
which this certificate applies to a Second Purchaser for export or
export those ODCs.
Purchaser understands that any use of the ODCs to which this
certificate applies other than for resale to Second Purchasers for
export may result in the revocation of Purchaser's registration.
Purchaser will retain the business records needed to document
the sales to Second Purchasers for export covered by this
certificate and will make such records available for inspection by
Government officers. Purchaser also will retain and make available
for inspection by Government officers the certificates of its Second
Purchasers.
Purchaser has not been notified by the Internal Revenue Service
that its registration has been revoked or suspended. In addition,
the Internal Revenue Service has not notified Purchaser of the
revocation or suspension of the registration of any Second Purchaser
who will purchase ozone-depleting chemicals to which this
certificate applies.
Purchaser understands that the fraudulent use of this
certificate may subject Purchaser and all parties making such
fraudulent use of this certificate to a fine or imprisonment, or
both, together with the costs of prosecution.
----------------------------------------------------------------------
Name of Purchaser
----------------------------------------------------------------------
Address of Purchaser
----------------------------------------------------------------------
----------------------------------------------------------------------
Taxpayer Identifying Number of Purchaser
----------------------------------------------------------------------
Title of person signing
----------------------------------------------------------------------
Printed or typed name of person signing
----------------------------------------------------------------------
Signature
(4) Documentation of export--(i) After December 31, 1992. After
December 31, 1992, to document the exportation of any ODCs, a person
must have the evidence required by the Environmental Protection Agency
as proof that the ODCs were exported.
(ii) Before January 1, 1993. Before January 1, 1993, to document
the exportation of any ODCs, a person must have evidence substantially
similar to that required by the Environmental Protection Agency as
proof that the ODCs were exported.
(e) Purchaser liable for tax--(1) Purchaser in qualifying sale. The
purchaser of ODCs in a qualifying sale for export is treated as the
manufacturer of the ODC and is liable for any tax imposed under section
4681 (determined without regard to exemptions for qualifying sales
under this section or Sec. 52.4682-1) when it sells or uses the ODCs if
that purchaser does not-
(i) Export the ODCs and document the exportation of the ODCs in
accordance with paragraph (d)(4) of this section; or
(ii) Sell the ODCs in a qualifying resale for export.
(2) Purchaser in qualifying resale. The purchaser of ODCs in a
qualifying resale for export is treated as the manufacturer of the ODC
and is liable for any tax imposed under section 4681 (determined
without regard to exemptions for qualifying sales under this section or
Sec. 52.4682-1) when it sells or uses the ODCs if that purchaser does
not export the ODCs and document the exportation of the ODCs in
accordance with paragraph (d)(4) of this section.
(f) Credit or refund--(1) In general. Except as provided in
paragraph (f)(2) of this section, a manufacturer or importer that meets
the conditions of paragraph (f)(3) of this section is allowed a credit
or refund (without interest) of the tax it paid to the government under
section 4681 on ODCs that are exported. Persons other than
manufacturers and importers of ODCs cannot file claims for credit or
refund of tax imposed under section 4681 on ODCs that are exported.
(2) Limitation. The amount of credits or refunds of tax under this
paragraph (f) is limited--
(i) In the case of tax paid on post-1989 ODCs sold during a
calendar year, to the amount (if any) by which the post-1989 exemption
amount for the year exceeds the tax benefit provided to such post-1989
ODCs under paragraph (b) of this section; and
(ii) In the case of tax paid on post-1990 ODCs sold during a
calendar year, to the amount (if any) by which the post-1990 exemption
amount for the year exceeds the tax benefit provided to such post-1990
ODCs under paragraph (b) of this section.
(3) Conditions to allowance of credit or refund. The conditions of
this paragraph (f)(3) are met if the manufacturer or importer--
(i) Documents the exportation of the ODCs in accordance with
paragraph (d)(4) of this section; and
(ii) Establishes that it has--
[[Page 52856]]
(A) Repaid or agreed to repay the amount of the tax to the person
that exported the ODC; or
(B) Obtained the written consent of the exporter to the allowance
of the credit or the making of the refund.
(4) Procedural rules. See section 6402 and the regulations under
that section for procedural rules relating to filing a claim for credit
or refund of tax.
(g) Examples. The following examples illustrate the provisions of
this section. In each example, the sales are qualifying sales for
export (within the meaning of paragraph (d)(1) of this section), all
registration, certification, and documentation requirements of this
section are met, and the ODCs sold for export are exported:
Example 1. (i) Facts. D, a corporation, manufactures CFC-11, a
post-1989 ODC, and does not manufacture or import any other ODCs. In
1993, D manufactures 100,000 pounds of CFC-11, the maximum quantity
D is allowed to manufacture in 1993 under EPA regulations. D has no
additional production allowance from EPA for 1993. In 1993, the tax
on CFC-11 is $3.35 per pound. D's 1986 export percentage for post-
1989 ODCs is 50%. In 1993, D sells 80,000 pounds of CFC-11 in
qualifying sales for export. The remainder of D's production is not
exported.
(ii) Components of limit on tax benefit. Under paragraph (c)(1)
of this section, D's exemption amount for 1993 is equal to the sum
of--
(A) D's 1986 export percentage multiplied by the aggregate tax
that would (but for section 4682(d), section 4682(g), and
Sec. 52.4682-5) be imposed under section 4681 on the maximum
quantity of post-1989 ODCs D is permitted to manufacture during
1993;
(B) The aggregate tax that would (but for section 4682(d),
section 4682(g), and Sec. 52.4682-5) be imposed under section 4681
on post-1989 ODCs that D manufactures during 1993 under an
additional production allowance; and
(C) The aggregate tax that would (but for section 4682(d),
section 4682(g), and Sec. 52.4682-5) be imposed under section 4681
on post-1989 ODCs imported by D during 1993.
(iii) Limit on tax benefit. The amounts described in paragraphs
(ii)(B) and (C) of this Example 1 are equal to zero. Thus, D's 1993
exemption amount is $167,500 (50% of $335,000 (the tax that would
otherwise be imposed on 100,000 pounds of CFC-11 in 1993)).
(iv) Application of limit on tax benefit. Under paragraph (b)(2)
of this section, the tax imposed on the CFC-11 D sells for export is
equal to the excess of the tax that would have been imposed on those
ODCs but for section 4682(d) and Sec. 52.4682-5, over D's 1993
exemption amount. But for Sec. 52.4682-5, $268,000 ($3.35 x 80,000)
of tax would have been imposed on the CFC-11 sold for export. Thus,
$100,500 ($268,000 - $167,500) of tax is imposed on the CFC-11 sold
for export.
Example 2. (i) Facts. E, a corporation, manufactures CFC-11, a
post-1989 ODC, and does not manufacture or import any other ODCs. In
1993, E manufactures 100,000 pounds of CFC-11, the maximum quantity
E is allowed to manufacture in 1993 under EPA regulations. E has no
additional production allowance from EPA for 1993. In 1993, the tax
on CFC-11 is $3.35 per pound. E's 1986 export percentage for post-
1989 ODCs is 50%. In 1993, E sells 45,000 pounds of CFC-11 tax free
in qualifying sales for export and pays tax under section 4681 on an
additional 35,000 pounds of exported CFC-11. The remainder of E's
production is not exported.
(ii) Limit on tax benefit. E's 1993 exemption amount is
$167,500, (50% of $335,000 (the tax that would otherwise be imposed
on 100,000 pounds of CFC-11 in 1993)). The credit or refund allowed
to E under paragraph (f) of this section is limited under paragraph
(f)(2) of this section to the amount by which E's 1993 exemption
amount exceeds E's 1993 tax benefit under paragraph (b) of this
section.
(iii) Application of limit on tax benefit. Because E sold 45,000
pounds of CFC-11 tax free in qualifying sales for export in 1993,
E's 1993 tax benefit under paragraph (b) of this section is $150,750
($3.35 x 45,000). Thus, the credit or refund allowed to E under
paragraph (f) of this section is limited to $16,750
($167,500-$150,750).
Example 3. (i) Facts. F, a corporation, manufactures CFC-11, a
post-1989 ODC, and does not manufacture any other ODCs. F also
imports CFC-11. In 1993, F manufactures 60,000 pounds of CFC-11
(100,000 pounds is the maximum quantity F is allowed to manufacture
in 1993 under EPA regulations) and imports 40,000 pounds. F has no
additional production allowance from EPA for 1993. In 1993, the tax
on CFC-11 is $3.35 per pound. F's 1986 export percentage for post-
1989 ODCs is 50%. In 1993, F sells 45,000 pounds of CFC-11 tax free
in qualifying sales for export and pays tax under section 4681 on an
additional 35,000 pounds of exported CFC-11. The remainder of F's
production is not exported.
(ii) Limit on tax benefit. F's 1993 exemption amount is
$301,500, ($167,500 (50% of $335,000 (the tax that would otherwise
be imposed on 100,000 pounds of CFC-11 in 1993) plus $134,000 (the
tax that would otherwise be imposed on the 40,000 pounds imported)).
The credit or refund allowed to F under paragraph (f) of this
section is limited under paragraph (f)(2) of this section to the
amount by which F's 1993 exemption amount exceeds F's 1993 tax
benefit under paragraph (b) of this section.
(iii) Application of limit on tax benefit. Because F sold 45,000
pounds of CFC-11 tax free in qualifying sales for export in 1993,
F's 1993 tax benefit under paragraph (b) of this section is $150,750
($3.35 x 45,000). Thus, the credit or refund allowed to F under
paragraph (f) of this section is limited to $150,750
($301,500-$150,750). The limitation does not affect F's credit or
refund because the tax F paid on exported ODCs is only $117,250
($3.35 x 35,000).
(h) Effective date. This section is effective January 1, 1993.
PART 602--OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT
Par. 8. The authority citation for part 602 continues to read as
follows:
Authority: 26 U.S.C. 7805.
Par. 9. In Sec. 602.101, paragraph (c) is amended by revising the
entries for 52.4682-2(b) and 52.4682-2(d) and adding entries in
numerical order to the table to read as follows:
Sec. 602.601 OMB Control numbers.
* * * * *
(c) ***
------------------------------------------------------------------------
Current
OMB
CFR part or section where identified and described control
No.
------------------------------------------------------------------------
* * * * *
52.4682-2(b)................................................ 1545-1153
1545-1361
52.4682-2(d)................................................ 1545-1153
1545-1361
* * * * *
52.4682-5(d)................................................ 1545-1361
52.4682-5(f)................................................ 1545-1361
* * * * *
------------------------------------------------------------------------
Approved: August 31, 1995.
Margaret Milner Richardson,
Commissioner of Internal Revenue.
Cynthia G. Beerbower,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 95-24603 Filed 10-10-95; 8:45 am]
BILLING CODE 4830-01-U
