S 1589 ISCommentsClose CommentsPermalink

To amend the Internal Revenue Code of 1986 to modify the incentives for the production of biodiesel.CommentsClose CommentsPermalink

August 6, 2009CommentsClose CommentsPermalink

Ms. CANTWELL (for herself and Mr. GRASSLEY) introduced the following bill; which was read twice and referred to the Committee on FinanceCommentsClose CommentsPermalink

To amend the Internal Revenue Code of 1986 to modify the incentives for the production of biodiesel.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Biodiesel Tax Incentive Reform and Extension Act of 2009’.CommentsClose CommentsPermalink

SEC. 2. REFORM OF BIODIESEL INCOME TAX INCENTIVES.

(a) In General- Section 40A of the Internal Revenue Code of 1986 is amended to read as follows:CommentsClose CommentsPermalink

‘SEC. 40A. BIODIESEL PRODUCTION.

‘(a) In General- For purposes of section 38, the biodiesel fuels credit determined under this section for the taxable year is $1.00 for each gallon of biodiesel produced by the taxpayer which during the taxable year--CommentsClose CommentsPermalink





‘(1) is sold by such producer to another person--CommentsClose CommentsPermalink





‘(A) for use by such other person’s trade or business (other than casual off-farm production),CommentsClose CommentsPermalink





‘(B) for use by such other person as a fuel in a trade or business, orCommentsClose CommentsPermalink





‘(C) who sells such biodiesel at retail to another person and places such biodiesel in the fuel tank of such other person, orCommentsClose CommentsPermalink





‘(2) is used or sold by such producer for any purpose described in paragraph (1).CommentsClose CommentsPermalink





‘(b) Increased Credit for Small Producers-CommentsClose CommentsPermalink





‘(1) IN GENERAL- In the case of any eligible small biodiesel producer, subsection (a) shall be applied by increasing the dollar amount contained therein by 10 cents.CommentsClose CommentsPermalink





‘(2) LIMITATION- Paragraph (1) shall only apply with respect to the first 15,000,000 gallons of biodiesel produced by any eligible small biodiesel producer during any taxable year.CommentsClose CommentsPermalink





‘(c) Coordination With Credit Against Excise Tax- The amount of the credit determined under this section with respect to any biodiesel shall be reduced to take into account any benefit provided with respect to such biodiesel solely by reason of the application of section 6426 or 6427(e).CommentsClose CommentsPermalink





‘(d) Definitions and Special Rules- For purposes of this section--CommentsClose CommentsPermalink





‘(1) BIODIESEL- The term ‘biodiesel’ means liquid fuel derived from biomass which meets--CommentsClose CommentsPermalink





‘(A) the registration requirements for fuels and fuel additives established by the Environmental Protection Agency under section 211 of the Clean Air Act (42 U.S.C. 7545), andCommentsClose CommentsPermalink





‘(B) the requirements of the American Society of Testing and Materials D6751.CommentsClose CommentsPermalink





Such term shall not include any liquid with respect to which a credit may be determined under section 40.CommentsClose CommentsPermalink





‘(2) BIODIESEL NOT USED FOR A QUALIFIED PURPOSE- If--CommentsClose CommentsPermalink





‘(A) any credit was determined with respect to any biodiesel under this section, andCommentsClose CommentsPermalink





‘(B) any person does not use such biodiesel for the purpose described in subsection (a),CommentsClose CommentsPermalink





then there is hereby imposed on such person a tax equal to the product of the rate applicable under subsection (a) and the number of gallons of such biodiesel.CommentsClose CommentsPermalink





‘(3) PASS-THRU IN THE CASE OF ESTATES AND TRUSTS- Under regulations prescribed by the Secretary, rules similar to the rules of subsection (d) of section 52 shall apply.CommentsClose CommentsPermalink





‘(4) LIMITATION TO BIODIESEL PRODUCED IN THE UNITED STATES- No credit shall be determined under this section with respect to any biodiesel unless such biodiesel is produced in the United States from raw feedstock. For purposes of this paragraph, the term ‘United States’ includes any possession of the United States.CommentsClose CommentsPermalink





‘(5) BIODIESEL TRANSFERS FROM AN IRS REGISTERED BIODIESEL PRODUCTION FACILITY TO AN IRS REGISTERED TERMINAL OR REFINERY- The credit allowed under subsection (a) shall be allowed to the terminal or refinery referred to in section 4081(a)(1)(B)(i) in instances where section 4081(a)(1)(B)(iii) is applicable. The credit allowed under subsection (a) cannot be claimed by a terminal or refinery on fuel upon which the credit was previously claimed by a biodiesel producer.CommentsClose CommentsPermalink





‘(e) Definitions and Special Rules for Small Biodiesel Producers-CommentsClose CommentsPermalink





‘(1) ELIGIBLE SMALL BIODIESEL PRODUCER- The term ‘eligible small biodiesel producer’ means a person who at all times during the taxable year has a productive capacity for biodiesel not in excess of 60,000,000 gallons.CommentsClose CommentsPermalink





‘(2) AGGREGATION RULE- For purposes of the 15,000,000 gallon limitation under subsection (b)(2) and the 60,000,000 gallon limitation under paragraph (1), all members of the same controlled group of corporations (within the meaning of section 267(f)) and all persons under common control (within the meaning of section 52(b) but determined by treating an interest of more than 50 percent as a controlling interest) shall be treated as 1 person.CommentsClose CommentsPermalink





‘(3) PARTNERSHIP, S CORPORATION, AND OTHER PASS-THRU ENTITIES- In the case of a partnership, trust, S corporation, or other pass-thru entity, the limitations contained in subsection (b)(2) and paragraph (1) shall be applied at the entity level and at the partner or similar level.CommentsClose CommentsPermalink





‘(4) ALLOCATION- For purposes of this subsection, in the case of a facility in which more than 1 person has an interest, productive capacity shall be allocated among such persons in such manner as the Secretary may prescribe.CommentsClose CommentsPermalink





‘(5) REGULATIONS- The Secretary may prescribe such regulations as may be necessary--CommentsClose CommentsPermalink





‘(A) to prevent the credit provided for in subsection (b) from directly or indirectly benefitting any person with a direct or indirect productive capacity of more than 60,000,000 gallons of biodiesel during the taxable year, orCommentsClose CommentsPermalink





‘(B) to prevent any person from directly or indirectly benefitting with respect to more than 15,000,000 gallons during the taxable year.CommentsClose CommentsPermalink





‘(6) ALLOCATION OF SMALL BIODIESEL CREDIT TO PATRONS OF COOPERATIVE-CommentsClose CommentsPermalink





‘(A) ELECTION TO ALLOCATE-CommentsClose CommentsPermalink





‘(i) IN GENERAL- In the case of a cooperative organization described in section 1381(a), any portion of the increase determined under subsection (b) for the taxable year may, at the election of the organization, be apportioned pro rata among patrons of the organization on the basis of the quantity or value of business done with or for such patrons for the taxable year.CommentsClose CommentsPermalink





‘(ii) FORM AND EFFECT OF ELECTION- An election under clause (i) for any taxable year shall be made on a timely filed return for such year. Such election, once made, shall be irrevocable for such taxable year. Such election shall not take effect unless the organization designates the apportionment as such in a written notice mailed to its patrons during the payment period described in section 1382(d).CommentsClose CommentsPermalink





‘(B) TREATMENT OF ORGANIZATIONS AND PATRONS-CommentsClose CommentsPermalink





‘(i) ORGANIZATIONS- The amount of the credit not apportioned to patrons pursuant to subparagraph (A) shall be included in the amount determined under subsection (b) for the taxable year of the organization.CommentsClose CommentsPermalink





‘(ii) PATRONS- The amount of the credit apportioned to patrons pursuant to subparagraph (A) shall be included in the amount determined under such subsection for the first taxable year of each patron ending on or after the last day of the payment period (as defined in section 1382(d)) for the taxable year of the organization or, if earlier, for the taxable year of each patron ending on or after the date on which the patron receives notice from the cooperative of the apportionment.CommentsClose CommentsPermalink





‘(iii) SPECIAL RULES FOR DECREASE IN CREDITS FOR TAXABLE YEAR- If the amount of the credit of the organization determined under such subsection for a taxable year is less than the amount of such credit shown on the return of the organization for such year, an amount equal to the excess of--CommentsClose CommentsPermalink





‘(I) such reduction, overCommentsClose CommentsPermalink





‘(II) the amount not apportioned to such patrons under subparagraph (A) for the taxable year, shall be treated as an increase in tax imposed by this chapter on the organization.CommentsClose CommentsPermalink





Such increase shall not be treated as tax imposed by this chapter for purposes of determining the amount of any credit under this chapter or for purposes of section 55.CommentsClose CommentsPermalink





‘(f) Renewable Diesel- For purposes of this title--CommentsClose CommentsPermalink





‘(1) TREATMENT IN THE SAME MANNER AS BIODIESEL- Renewable diesel shall be treated in the same manner as biodiesel.CommentsClose CommentsPermalink





‘(2) RENEWABLE DIESEL DEFINED- The term ‘renewable diesel’ means liquid fuel derived from biomass which meets--CommentsClose CommentsPermalink





‘(A) the registration requirements for fuels and fuel additives established by the Environmental Protection Agency under section 211 of the Clean Air Act (42 U.S.C. 7545), andCommentsClose CommentsPermalink





‘(B) the requirements of the American Society of Testing and Materials D975 or D396, or other equivalent standard approved by the Secretary.CommentsClose CommentsPermalink





Such term shall not include any liquid with respect to which a credit may be determined under section 40. Such term does not include any fuel derived from coprocessing biomass with a feedstock which is not biomass. For purposes of this paragraph, the term ‘biomass’ has the meaning given such term by section 45K(c)(3).CommentsClose CommentsPermalink





‘(3) CERTAIN AVIATION FUEL- Except as provided in the last 3 sentences of paragraph (2), the term ‘renewable diesel’ shall include fuel derived from biomass which meets the requirements of a Department of Defense specification for military jet fuel or an American Society of Testing and Materials specification for aviation turbine fuel.CommentsClose CommentsPermalink





‘(g) Termination- This section shall not apply to any sale or use after December 31, 2014.’.CommentsClose CommentsPermalink





(b) Clerical Amendment- The table of sections for subpart D of part IV of subchapter A of chapter 1 of such Code is amended by striking the item relating to section 40A and inserting the following new item:CommentsClose CommentsPermalink





‘Sec. 40A. Biodiesel production.’.CommentsClose CommentsPermalink





(c) Effective Date- The amendments made by this section shall apply to biodiesel sold or used after December 31, 2009.CommentsClose CommentsPermalink

SEC. 3. REFORM OF BIODIESEL EXCISE TAX INCENTIVES.

(a) In General- Subsection (c) of section 6426 of the Internal Revenue Code of 1986 is amended to read as follows:CommentsClose CommentsPermalink





‘(c) Biodiesel Credit-CommentsClose CommentsPermalink





‘(1) IN GENERAL- For purposes of this section, the biodiesel credit is $1.00 for each gallon of biodiesel produced by the taxpayer and which--CommentsClose CommentsPermalink





‘(A) is sold by such producer to another person--CommentsClose CommentsPermalink





‘(i) for use by such other person’s trade or business (other than casual off-farm production),CommentsClose CommentsPermalink





‘(ii) for use by such other person as a fuel in a trade or business, orCommentsClose CommentsPermalink





‘(iii) who sells such biodiesel at retail to another person and places such biodiesel in the fuel tank of such other person, orCommentsClose CommentsPermalink





‘(B) is used or sold by such producer for any purpose described in subparagraph (A).CommentsClose CommentsPermalink





‘(2) DEFINITIONS- Any term used in this subsection which is also used in section 40A shall have the meaning given such term by section 40A.CommentsClose CommentsPermalink





‘(3) BIODIESEL TRANSFERS FROM AN IRS REGISTERED BIODIESEL PRODUCTION FACILITY TO AN IRS REGISTERED TERMINAL- The credit allowed under this subsection can be claimed by a registered terminal or refinery in instances where section 4081(a)(1)(B)(iii) is applicable. The credit allowed under this subsection cannot be claimed by a terminal or refinery on fuel upon which the credit was previously claimed by a biodiesel producer.CommentsClose CommentsPermalink





‘(4) TERMINATION- This subsection shall not apply to any sale, use, or removal for any period after December 31, 2014.’.CommentsClose CommentsPermalink





(b) Payment of Credit- Subsection (e) of section 6427 of such Code is amended--CommentsClose CommentsPermalink





(1) by striking ‘or the biodiesel mixture credit’ in paragraph (1),CommentsClose CommentsPermalink





(2) by redesignating paragraphs (3) through (6) as paragraphs (4) through (7), respectively, and by inserting after paragraph (2) the following new paragraph:CommentsClose CommentsPermalink





‘(3) BIODIESEL CREDIT- If any person produces biodiesel and sells or uses such biodiesel as provided in section 6426(c), the Secretary shall pay (without interest) to such person an amount equal to the biodiesel credit with respect to such biodiesel.’,CommentsClose CommentsPermalink





(3) by striking ‘paragraph (1) or (2)’ each place it appears in paragraphs (4) and (6), as redesignated by paragraph (2), and inserting ‘paragraph (1), (2), or (3)’,CommentsClose CommentsPermalink





(4) by striking ‘alternative fuel’ each place it appears in paragraphs (4) and (6), as redesignated by paragraph (2), and inserting ‘fuel’, andCommentsClose CommentsPermalink





(5) by striking ‘biodiesel mixture (as defined in section 6426(c)(3))’ in paragraph (7)(B), as so redesignated, and inserting ‘biodiesel (within the meaning of section 40A)’.CommentsClose CommentsPermalink





(c) Exemption for Biodiesel Transferred From a Registered Producer to a Registered Terminal- Subparagraph (B) of section 4081(a)(1) of such Code is amended--CommentsClose CommentsPermalink





(1) by striking ‘clause (ii)’ in clause (i) and inserting ‘clauses (ii) and (iii)’, andCommentsClose CommentsPermalink





(2) by adding at the end the following new clause:CommentsClose CommentsPermalink





‘(iii) EXEMPTIONS FOR BIODIESEL TRANSFERRED FROM A REGISTERED PRODUCER TO A REGISTERED TERMINAL- The tax imposed by this paragraph shall not apply to any removal or entry of biodiesel (as defined in section 40A(d)(1)) transferred in bulk (without regard to the manner of such transfer) to a terminal or refinery if--CommentsClose CommentsPermalink





‘(I) such biodiesel was produced by a person who is registered under section 4101 as a producer of biodiesel and who provides reporting under the ExStars fuel reporting system of the Internal Revenue Service, andCommentsClose CommentsPermalink





‘(II) the operator of such terminal or refinery is registered under section 4101.’.CommentsClose CommentsPermalink





(d) Producer Registration Requirement- Subsection (a) of section 6426 of such Code is amended by striking ‘subsections (d) and (e)’ in the flush sentence at the end and inserting ‘subsections (c), (d), and (e)’.CommentsClose CommentsPermalink





(e) Recapture- Subsection (f) of section 6426 of such Code is amended to read as follows:CommentsClose CommentsPermalink





‘(f) Recapture-CommentsClose CommentsPermalink





‘(1) ALCOHOL FUEL MIXTURES- If--CommentsClose CommentsPermalink





‘(A) any credit was determined under this section with respect to alcohol used in the production of any alcohol fuel mixture, andCommentsClose CommentsPermalink





‘(B) any person--CommentsClose CommentsPermalink





‘(i) separates the alcohol from the mixture, orCommentsClose CommentsPermalink





‘(ii) without separation, uses the mixture other than as a fuel,CommentsClose CommentsPermalink





then there is hereby imposed on such person a tax equal to the product of the applicable amount and the number of gallons of such alcohol.CommentsClose CommentsPermalink





‘(2) BIODIESEL- If any credit was determined under this section with respect to the production of any biodiesel and any person does not use such biodiesel for a purpose described in subsection (c)(1), then there is hereby imposed on such person a tax equal to $1 for each gallon of such biodiesel.CommentsClose CommentsPermalink





‘(3) APPLICABLE LAWS- All provisions of law, including penalties, shall, insofar as applicable and not inconsistent with this section, apply in respect of any tax imposed under paragraph (1) or (2) as if such tax were imposed by section 4081 and not by this section.’.CommentsClose CommentsPermalink





(f) Clerical Amendment- The heading of section 6426 of such Code (and the item relating to such section in the table of sections for subchapter B of chapter 65 of such Code) is amended by striking ‘alcohol fuel, biodiesel, and alternative fuel mixtures’ and inserting ‘alcohol fuel mixtures, biodiesel production, and alternative fuel mixtures’.CommentsClose CommentsPermalink





(g) Effective Date- The amendments made by this section shall apply to biodiesel sold or used after December 31, 2009.CommentsClose CommentsPermalink

SEC. 4. BIODIESEL TREATED AS TAXABLE FUEL.

(a) Biodiesel Treated as Taxable Fuel- Clause (i) of section 4083(a)(3)(A) of such Code is amended by inserting ‘, including biodiesel (as defined in section 6426(c)(3)),’ after ‘(other than gasoline)’.CommentsClose CommentsPermalink





(b) Effective Date- The amendment made by this section shall apply to biodiesel removed, entered, or sold after the date which is 6 months after the date of the enactment of this Act.CommentsClose CommentsPermalink