12.03.2018
Press Release
Washington, DC, December 3, 2018 – Miller & Chevalier Chartered today announced that Jorge E.
- Obtained significant refunds of the Section 4251 federal communications excise tax in court cases that ultimately led to the IRS conceding that amounts paid for most long-distance telephone services were not subject to the tax. Nat’l R.R. Passenger Corp. v. United States, 431 F.3d 374 (D.C. Cir. 2005); America Online, Inc. v. United States, 64 Fed. Cl. 571 (2005).
- Successfully petitioned the D.C. Circuit to overturn the government's refusal to consider an air carrier's request for a refund of erroneously paid user fees. United Airlines, Inc. v. TSA, 859 F.3d 67 (D.C. Cir. 2017).
- Obtained a refund of federally imposed passenger-based user fees for several major U.S. air carriers. American Airlines, Inc. v. United States, 551 F.3d 1294 (Fed. Cir. 2008); Continental Airlines, Inc. v. United States, 77 Fed. Cl. 482 (2007).
- Represented a major utility in an appeal to the Federal Circuit from an adverse trial court decision imposing liability for the Section 4481 excise tax on highway motor vehicles. Florida Power & Light Co. v. United States, 375 F.3d 1119 (Fed. Cir. 2004).
- Successfully resolved federal excise tax controversies for clients before IRS Exam, IRS Appeals, and the IRS National Office involving:
- The tax-free treatment of export sales of fuel otherwise subject to the Section 4081 tax on motor and aviation fuels;
- The question of who is the appropriate taxpayer entitled to a refund of the Section 4251 federal communications excise tax;
- The extent to which ozone-depleting chemicals (ODC) may have been used in the manufacture of imported products for purposes of the Section 4681 excise tax on ODCs;
- The applicability of the Section 4371 excise tax on policies of insurance and reinsurance issued by foreign insurers or reinsurers;
- The applicability of the Section 4261(e)(3) excise tax on frequent flyer miles to business partners in a marketing arrangement;
- The extent to which interest is owed by the government when a provider of air transportation who uses the “alternative method” for computing deposits overpays the Section 4261 excise tax;
- Proposed assessments of excise taxes and penalties under Section 7272 for the failure to register to sell diesel fuel subject to tax under Sections 4041 or 4081;
- Potential civil and criminal penalties as a result of changes in the commercial airline industry that raised novel issues as to the application of the Section 4261 “ticket” tax; and
- Potential criminal penalties under Section 7275 for failure to properly reflect the air transportation excise tax on the ticket as a result of complications arising from Congress’ revamping of the underlying excise tax.
- Obtained private letter rulings for companies on such issues as:
- The effect of a change in operations on Section 4261 “ticket” tax obligations; and
- The extent to which equipment is taken into consideration in determining a vehicle’s taxable gross weight for purposes of the Section 4481 excise tax on the use of heavy trucks.
- Obtained favorable guidance/legislation for companies on such issues as:
- The application of the air transportation excise tax to online travel intermediaries (Rev. Rul. 2006-52); and
- Congressional clarification of the affiliated group exemption under Section 4282 so as to override unfavorable IRS guidance in Rev. Rul. 77-405.
- Provided substantive tax advice and consulting on a wide range of excise tax issues, for instance:
- How to determine the point at which the first retail sale occurred, when use is treated as a sale, and the effect of subsequently installed parts or accessories on the sales price subject to tax for purposes of the Section 4051 excise tax on heavy trucks and trailers sold at retail;
- The applicability of the Section 4251 federal communications excise tax with respect to both service providers and subscribers, the point of imposition of the tax, exemption uses, and the refund procedures for collected taxes;
- Potential exposure for the Section 4261 “ticket” tax in connection with the use of aircraft in business operations, the tax base applicable to “wet/dry” lease arrangements, affiliated group issues, and the interaction between the “ticket” tax and the Section 4041 excise tax on fuel used in aviation;
- Who should be considered the manufacturer, producer, or importer for purposes of the Section 4161 excise tax on sporting goods and how to determine the correct sales price to which the tax applies and the items to be included in that determination;
- The applicability of the Section 4216 constructive sale price provisions; and
- The availability of the Section 6426(e) alternative fuel mixture credit for mixing alternative fuels derived from biomass and the procedures for claiming the credit against excise taxes under Section 4081, obtaining a cash refund under Section 6427, or taking the credit against income tax under Section 34.
- Advised clients in the various industries to which federal excise taxes apply on compliance issues, such as:
- Reporting, deposit, and payment obligations with respect to collected taxes in general;
- Appropriate documentary support for return positions;
- Elections for reporting purposes; and
- Registering with the IRS to avoid potential penalties for clients engaged in certain types of activities (e.g., gasoline blenders, refiners, terminal operators).
- Advised clients (e.g., farm enterprises, construction companies, and nonprofit educational organizations) on the availability of exemptions from various excise taxes, such as the Section 4041 excise tax on diesel fuel and the Section 4081 excise tax on motor and aviation fuels, and assisted them in obtaining exemption certificates from the IRS for tax-free purchases.
- Successfully resolved numerous issues arising under the Crude Oil Windfall Profit Tax Act of 1980, including net income limitation calculations, the definition of “crude oil,” taxable removal price determinations, and a variety of enhanced oil recovery projects.