The IRS continues to aggressively pursue the collection of federal excise taxes imposed on goods, services, and activities. But its published guidance and institutional positions in the excise tax area are often results-oriented, finding liability without much analysis. Given the number of different excise tax provisions in the Internal Revenue Code, the specificity with which they are written, and the tenaciousness with which the IRS pursues their assessment, taxpayers need counsel who have in-depth knowledge of the idiosyncrasies of federal excise tax practice and procedure and have a proven record of success before IRS and the federal courts with respect to excise tax issues.

Our lawyers have in-depth knowledge of the excise tax regimes in the Internal Revenue Code and experience with the compliance procedures unique to the collection, reporting, and payment of excise taxes. The practice includes former IRS lawyers who know the internal policies and personalities within the IRS Excise Tax Group. Most important, our lawyers have significant experience not only in representing clients before the IRS, but also in the federal courts, which is essential given the IRS’s position with respect to excise tax collection. Because most excise taxes are assessed taxes, and therefore must be pursued in a refund forum, taxpayers need the knowledge of the particularized procedures that apply to divisible taxes and actual experience before the federal courts that Miller & Chevalier’s excise tax practice can provide. 

  • 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.
  • Commissioner, Internal Revenue Service
  • General Counsel, U.S. Nuclear Regulatory Commission
  • Assistant Commissioner (Technical), Internal Revenue Service
  • Tax Assistant to the Solicitor General, U.S. Department of Justice
  • Assistant to the Solicitor General, U.S. Department of Justice
  • Acting Chief Counsel, Internal Revenue Service
  • Deputy Chief Counsel, Internal Revenue Service
  • Counselor to the IRS Commissioner, Internal Revenue Service
  • Assistant Chief of Staff, Joint Committee on Taxation, U.S. Congress
  • Majority Tax Counsel, U.S. House of Representatives Committee on Ways and Means
  • Assistant Legislative Counsel, Joint Committee on Taxation, U.S. Congress
  • Senior Counsel and Lead Economic Policy Advisor, Senator John D. Rockefeller IV, Chairman of the Senate Commerce, Science and Transportation Committee and Senior Member of the Senate Finance Committee
  • Tax and Trade Counsel, Congresswoman Stephanie Tubbs Jones, Senior Member of the House Ways and Means Committee
  • Advisor to the Assistant Secretary for Tax Policy, U.S. Department of the Treasury
  • Counsel, Subcommittee on the Environment of the U.S. Senate Committee on Commerce
  • Attorney Advisor, U.S. Department of the Treasury
  • Attorney Advisor, Legislation and Regulations Division, Office of Chief Counsel, Internal Revenue Service
  • Honors Attorney, Office of the Associate Chief Counsel (International), Internal Revenue Service
  • Honors Attorney, U.S. Department of the Treasury
  • Legislation Attorney, Joint Committee on Taxation, U.S. Congress
  • Legislative Director, U.S. Senator
  • Member, President Barack Obama's Transition Team, Economic and International Agency Review Working Group

 

  • Chambers USA: Tax Team of the Year, 2016
  • Chambers USA: Tax: Controversy (National), 2007 - 2018
  • Chambers USA: Tax (District of Columbia), 2003 - 2018
  • Legal 500: Tax: Contentious (US), 2007 - 2018
  • Legal 500: Tax: International Tax (US), 2013 - 2018
  • Legal 500: Tax: Non-Contentious (US), 2013 - 2018
  • U.S. News - Best Lawyers® "Best Law Firms": Tax Law (National), 2010 - 2018
  • U.S. News - Best Lawyers® "Best Law Firms": Tax Law (District of Columbia), 2010 - 2018
  • International Tax Review "Americas Tax Awards": Americas Tax Policy Firm of the Year, 2012 - 2013, 2015 - 2016 
  • International Tax Review "Americas Tax Awards": Washington, DC Tax Firm of the Year, 2013
  • International Tax Review "Americas Tax Awards": Washington, DC Transfer Pricing Firm of the Year, 2012
  • International Tax Review: World Tax (Washington, DC), 2012, 2014 - 2018
  • International Tax Review: World Transfer Pricing (National), 2014 - 2018
  • International Tax Review: Tier 1 U.S. Firm, Tax Planning Survey, 2018
06.12.2018
Speaking Engagement

Adam P. Feinberg will be speaking during the American Petroleum Institute's (API) 2018 Excise Tax Forum in Houston, TX. Feinberg will present, as part of a panel, "Butane Credit."

Houston, TX

04.16.2018

Just months after passage of the first comprehensive tax reform law enacted in more than 30 years, tax executives are optimistic about the effect of the Tax Cuts & Jobs Act (TCJA) on their busi

04.06.2017

Miller & Chevalier Chartered and the National Foreign Trade Council (NFTC) today announced the results of their 2017 Tax Policy Forecast Survey, which reveals for the first time in 11 years sig