USCA11 Case: 21-11850 Date Filed: 07/26/2022 Page: 1 of 8
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11850
____________________
AFFORDABLE BIO FEEDSTOCK, INC.,
AFFORDABLE BIO FEEDSTOCK OF PORT CHARLOTTE,
LLC,
Plaintiffs-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cv-01835-PGB-DCI
____________________
USCA11 Case: 21-11850 Date Filed: 07/26/2022 Page: 2 of 8
2 Opinion of the Court 21-11850
Before WILSON, BRANCH, and TJOFLAT, Circuit Judges.
TJOFLAT, Circuit Judge:
Affordable Bio Feedstock, Inc., and Affordable Bio Feed-
stock of Port Charlotte, LLC, (collectively “ABF”) 1 appeal the Dis-
trict Court’s summary judgment denying their claim for reim-
bursement of “protest payments” made to the Internal Revenue
Service (“IRS”) after the IRS claw-backed an alternative fuel tax
credit it had previously given ABF. In support of its position, ABF
argues that federal courts may order the Government to pay plain-
tiffs money from the Federal Treasury based solely on equitable
principles. Unfortunately for ABF, the Supreme Court foreclosed
its arguments 32 years ago in Office of Personnel Management v.
Richmond,
496 U.S. 414, 416,
110 S. Ct. 2465, 2467 (1990), when it
held that “payments of money from the Federal Treasury are lim-
ited to those authorized by statute.” Accordingly, we affirm the
District Court’s grant of summary judgment.
I.
ABF was a waste-to-energy company that acquired oil and
food waste, or “brown grease,” from restaurants and processed it
for use as alternative fuel. A provision of the tax code,
26 U.S.C. §
4041(a)(2), imposes an excise tax for certain alternative fuels.
1 Although ABF is technically two companies, we refer to them as one for the
remainder of the opinion.
USCA11 Case: 21-11850 Date Filed: 07/26/2022 Page: 3 of 8
21-11850 Opinion of the Court 3
Taxpayers must register for this excise tax in accordance with IRS
regulations.
26 U.S.C. § 4101(a)(1). IRS regulations require taxpay-
ers registering for § 4041(a)(2)’s excise tax to submit a Form 637
application.
26 C.F.R. § 48.4101-1(e). Form 637 consists of a series
of “activity letters” whereby registrants describe the activities they
believe falls under the excise tax. Once a Form 637 application is
submitted, an agent from the IRS’s Excise Tax Group performs an
Initial Compliance Review (“ICR”) to determine whether to rec-
ommend approving or denying the taxpayer’s registration for the
excise tax. The Chief of the Excise Tax Group, known as the Dis-
trict Director, then reviews the agent’s recommendation and de-
cides whether to approve the Form 637 application, apply the al-
ternative fuel excise tax, and register the applicant’s activity letter.
Registering an activity letter for § 4041(a)(2)’s alternative
fuel excise tax is essential to claim the alternative fuel excise tax
credit authorized by
26 U.S.C. § 6427(e)(2) and defined by
26 U.S.C.
§ 6426(d). § 2647(e)(4) (requiring registration under § 4101 before
awarding § 2657(e)(2)’s alternative fuel tax credit). Section 6426(d)
defines alternative fuels qualifying for the alternative fuel tax credit
as alternative fuels “sold by the taxpayer for use as a fuel in a motor
vehicle or motorboat, sold by the taxpayer for use as a fuel in avia-
tion, or so used by the taxpayer.” § 6426(d)(1). This credit may
only be used against the taxpayer’s alternative fuel excise tax liabil-
ity. § 6426(a)(2). Should a refund made pursuant to § 6427(e)(2)
constitute an “excessive amount,” the IRS can assess and collect
that refund as if the claiming entity was liable for the alternative
USCA11 Case: 21-11850 Date Filed: 07/26/2022 Page: 4 of 8
4 Opinion of the Court 21-11850
fuel excise tax.
26 U.S.C. § 6206. An “excessive amount” is defined
as the amount by which the refund exceeded the amount allowable
for a refund.
26 U.S.C. § 6675(b).
Activity letter registrants usually claim the § 6427(e)(2)’s al-
ternative fuel excise tax credit by filing a Form 720 Quarterly Fed-
eral Excise Tax Return. However, an activity letter is only valid if
the District Director “has issued a registration letter” and “the reg-
istration has not been revoked or suspended.”
26 C.F.R. § 48.4101-
1(a)(2). The District Director “must revoke or suspend the regis-
tration” of an activity letter if the District Director determines “at
any time” that (i) the registrant’s alternative fuel activities do not
qualify for registration and the registrant “has not corrected the de-
ficiency within a reasonable period of time after notification by the
district director;” (ii) the registrant used the activity letter registra-
tion to evade, attempt to evade, or postpone the imposition of the
excise tax, or “to make a fraudulent claim for a credit or payment;”
(iii) the registrant aided or abetted another in evading or attempt-
ing to evade the imposition of an excise tax or “in making a fraud-
ulent claim for a credit or payment;” or (iv) the registrant “sold,
leased, or otherwise allowed another person to use its registration.”
26 C.F.R. § 48.101-1(i)(1).
Here, ABF submitted its Form 637 applications to the IRS on
May 29, 2013, and June 13, 2013, requesting activity letter registra-
tions. The IRS agent assigned to conduct ABF’s ICRs then recom-
mended that ABF’s applications for activity letter registrations be
approved. Accordingly, the District Director approved the agent’s
USCA11 Case: 21-11850 Date Filed: 07/26/2022 Page: 5 of 8
21-11850 Opinion of the Court 5
recommendation and sent ABF signed letters informing ABF that
the IRS had approved its activity letter registrations.
These activity letter registrations remained valid until 2016,
when ABF filed separate Form 8849s claiming refunds under the §
2647’s alternative fuel excise tax credit. ABF claimed $423,315 for
2015 and $42,112 for January 2016. The IRS paid these claims on
March 22, 2016, and April 19, 2016, respectively. In October 2016,
the IRS began auditing ABF for these claims.
On January 25, 2018, the Chief of Estate, Gift, and Excise Tax
Examination sent ABF signed letters revoking its activity letter reg-
istrations. On September 17, 2018, the IRS sought reimbursement
of the paid alternative tax credits along with interest and penalties.
ABF, who sold their assets to a third party in October 2017,
returned “under protest” a portion of the paid tax credits totaling
$51,397. ABF then initiated this action on September 23, 2019,
seeking refunds for the above paid sums. On March 29, 2021, the
District Court granted summary judgment in favor of the IRS. Af-
fordable Bio Feedstock, Inc. v. United States,
529 F.Supp.3d 1298
(M.D. Fla. 2021). ABF timely appealed.
II.
We review grants of summary judgment de novo. Brown v.
Nexus Bus. Sols., LLC,
29 F.4th 1315, 1317 (11th Cir. 2022). Sum-
mary judgment is proper “if the movant shows that there is no gen-
uine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.”
Id. (quoting Fed. R. Civ. P. 56(a)).
USCA11 Case: 21-11850 Date Filed: 07/26/2022 Page: 6 of 8
6 Opinion of the Court 21-11850
On summary judgment review, we view all evidence in “the light
most favorable to the nonmoving party” and draw “all justifiable
inferences in that party’s favor.”
Id. at 1317–18 (quotation and quo-
tation marks omitted).
III.
The parties have stipulated that whether ABF qualifies for
the alternative fuel tax credit under the tax code is not at issue in
this case and is not a basis for recovery. Instead, ABF argues that
the IRS is equitably estopped from recovering the alternative fuel
tax credits paid to ABF under § 6427(e)(2) because an IRS agent and
the District Director both approved ABF’s activity letter registra-
tions. Appellant Br. at 18–22.
We need not address ABF’s arguments point by point. 2 The
sole issue before this Court is whether any court may order that
funds be appropriated from the Federal Treasury based on equita-
ble estoppel without specific authorization from Congress. And
the Supreme Court answered that question with a resounding “no”
32 years ago:
The Appropriations Clause of the Constitution, Art.
I, § 9, cl. 7, provides that: “No Money shall be drawn
from the Treasury, but in Consequence of
2 The District Court did address ABF’s arguments point by point. Affordable
Bio Feedstock, Inc., 529 F.Supp.3d at 1302–08. Although addressing these ar-
guments is unnecessary for deciding the case, we see no problems with the
District Court’s analysis.
USCA11 Case: 21-11850 Date Filed: 07/26/2022 Page: 7 of 8
21-11850 Opinion of the Court 7
Appropriations made by Law.” For the particular
type of claim at issue here, a claim for money from
the Federal Treasury, the Clause provides an explicit
rule of decision. Money may be paid out only
through an appropriation made by law; in other
words, the payment of money from the Treasury
must be authorized by a statute.
Richmond,
496 U.S. at 424,
110 S. Ct. at 2471. Nor does just any
statute suffice:
The general appropriation for payment of judgments,
in any event, does not create an all-purpose fund for
judicial disbursement. A law that identifies the source
of funds is not to be confused with the conditions pre-
scribed for their payment. Rather, funds may be paid
out only on the basis of a judgment based on a sub-
stantive right to compensation based on the express
terms of a specific statute.
Id. at 432,
110 S. Ct. at 2475. The Supreme Court then concluded:
Whether there are any extreme circumstances that
might support estoppel in a case not involving pay-
ment from the Treasury is a matter we need not ad-
dress. As for monetary claims, it is enough to say that
this Court has never upheld an assertion of estoppel
against the Government by a claimant seeking public
funds. In this context there can be no estoppel, for
courts cannot estop the Constitution.
USCA11 Case: 21-11850 Date Filed: 07/26/2022 Page: 8 of 8
8 Opinion of the Court 21-11850
Id. at 434,
110 S. Ct. at 2476. This Court has also clearly stated that
the “Supreme Court has held that equitable estoppel is unavailable
in a claim against the government for funds from the public treas-
ury.” Shuford v. Fid. Nat’l Prop. & Cas. Ins. Co.,
508 F.3d 1337,
1342–43 (11th Cir. 2007) (citing Richmond,
496 U.S. at 424–34,
110
S. Ct. at 2471–76).
Here, ABF seeks only to recover the money it already paid
to the IRS. That ABF paid this money “under protest” is irrelevant.
The only relevant fact is that this money is currently within the
Federal Treasury, and so the IRS would have to withdraw money
from the Federal Treasury to pay any adverse equitable judgments.
Under Richmond, the Appropriation Clause’s “explicit rule of deci-
sion” for withdrawing funds from the Federal Treasury requires
that “the payment of money from the Treasury must be authorized
by a statute.”
496 U.S. at 424,
110 S. Ct. at 2471. ABF has waived
any argument that its activities qualified it for the alternative fuel
tax credit under § 6426 and points to no other statute(s) as a poten-
tial basis for recovery. United States v. Campbell,
26 F.4th 860, 872
(11th Cir. 2022) (en banc) (describing waiver as a matter of the
party’s intent and holding “if a party affirmatively and intentionally
relinquishes an issue, then courts must respect that decision”).
Therefore, ABF cannot recover monetary damages from the Fed-
eral Treasury.
The judgment of the District Court is
AFFIRMED.
