Notice 2008-33--Fuel Cell Motor Vehicle Credit

not fail to satisfy the requirements of
§ 411(d)(6) by reason of the amendment.
However, with respect to a particular plan provision, relief under § 1107
of PPA ’06 applies only to the first
plan amendment that implements the
post-PPA ’06 applicable interest rate
and/or post-PPA ’06 applicable mortality
table with respect to the provision, and any
subsequent amendment with respect to the
provision will not be treated as adopted
“pursuant to” statutory provisions under
PPA ’06, as required for relief under § 1107
of PPA ’06. For purposes of determining
whether an amendment that implements
the post-PPA ’06 applicable interest rate
and/or post-PPA ’06 applicable mortality
table with respect to a particular plan
provision is the first such amendment,
amendments adopted on or before June
30, 2008, are disregarded. Thus, if a plan
amendment is adopted that provides that
the amount payable under an optional form
of benefit that is subject to the minimum
present value requirements of § 417(e)(3)
is calculated in the manner described in
Q&A–16 of this notice, and the plan is
subsequently amended (during the period
established in § 1107 of PPA ’06) so that
the amount payable is calculated without
reference to the pre-PPA ’06 applicable
mortality table and pre-PPA ’06 applicable
interest rate, the relief under § 1107 of
PPA ’06 will apply with respect to the
subsequent amendment only if the initial
amendment was adopted on or before June
30, 2008.
Q–18. Does the relief under § 1107
of PPA ’06, as described in Rev. Rul.
2007–67 and this notice, apply to a plan
amendment that replaces a plan reference
to the pre-PPA ’06 applicable mortality table and/or pre-PPA ’06 applicable interest rate with a reference to the
post-PPA ’06 applicable mortality table
and/or post-PPA ’06 applicable interest
rate, without regard to whether § 302 of
PPA ’06 requires such amendment?
A–18. The relief under § 1107 of
PPA ’06, as described in Rev. Rul.
2007–67 and this notice, applies to an
amendment to a plan that is subject to
§ 401(a)(11) and that replaces a plan
reference to the pre-PPA ’06 applicable
mortality table and/or pre-PPA ’06
applicable interest rate with a reference to
the post-PPA ’06 applicable mortality table
and/or post-PPA ’06 applicable interest

2008–12 I.R.B.

rate, without regard to whether § 302 of
PPA ’06 requires such amendment. For
example, if a plan calculates the amount
of an optional form of benefit that is not
subject to the minimum present value
requirements of § 417(e)(3) by reference to
the pre-PPA ’06 applicable mortality table
and/or pre-PPA ’06 applicable interest
rate and the plan is amended, pursuant to
an amendment adopted during the period
established in § 1107(b)(2)(A) of PPA ’06,
so that it calculates the amount of the
optional form of benefit by reference to the
post-PPA ’06 applicable mortality table
and/or post-PPA ’06 applicable interest
rate, the plan will not fail to satisfy the
requirements of § 411(d)(6) by reason of
the amendment.
V. GAP-PERIOD EARNINGS
The final regulations (T.D. 9324,
2007–22 I.R.B. 1302) under § 402(g),
published in the Federal Register (72 FR
21103) on April 30, 2007, provide that
the gap-period earnings must be included
with the distribution of excess deferrals
to the extent the employee is or would be
credited with an allocable gain or loss on
those excess deferrals for the gap period,
if the total amount were to be distributed.
This gap-period earnings rule applies to
both pre-tax excess deferrals and excess
deferrals that are designated Roth contributions. The effective date for the rule
on gap-period earnings is taxable years
beginning on or after January 1, 2007.
Section 5.04 of Rev. Proc. 2007–44,
2007–28 I.R.B. 54, generally requires an
interim plan amendment to be adopted by
the time described in section 5.05 of the
revenue procedure when there is a statutory or regulatory change with respect to
plan qualification requirements that will
impact provisions of the written plan document.
Q–19. Is a plan restatement submitted to the Service in Cycle B (February 1,
2007, through January 31, 2008) or Cycle
C (February 1, 2008, through January 31,
2009) required to provide for the inclusion
of gap-period earnings in the distribution
of excess deferrals?
A–19. Yes. As described in section
12.03 of Rev. Proc. 2007–44, a restated
plan submitted to the Service in Cycle B or
Cycle C is required to provide for the distribution of gap-period earnings. A plan

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sponsor of a plan submitted before March
24, 2008 that does not provide for the distribution of gap-period earnings will be
asked to amend the plan to include the distribution of gap-period earnings in order to
receive a determination letter.
Q–20. Is an interim plan amendment
to provide for the inclusion of gap-period
earnings in the distribution of excess deferrals required to be adopted by the time
described in section 5.05 of Rev. Proc.
2007–44?
A–20. No. An interim plan amendment
to provide for the inclusion of gap-period
earnings in the distribution of excess deferrals will not be required to be adopted until
the last day of the first plan year beginning
on or after January 1, 2009.
Q–21. Are plans required to include
gap-period earnings in the distribution of
excess deferrals in accordance with the final regulations under § 402(g)?
A–21. Yes. Although the interim plan
amendment requirement has been delayed
until 2009, plans must include gap-period
earnings in the distribution of excess deferrals, effective for excess deferrals attributable to taxable years beginning on or after
January 1, 2007.
DRAFTING INFORMATION
The principal author of this notice is
Angelique Carrington of the Employee
Plans, Tax Exempt and Government Entities Division. For further information
regarding this notice, please contact the
Employee Plans taxpayer assistance answering service at 1–877–829–5500 (a toll
free number) or e-mail Ms. Carrington at
RetirementPlanQuestions@irs.gov.

Credit for New Qualified
Alternative Motor Vehicles
(Qualified Fuel Cell Motor
Vehicles)
Notice 2008–33
SECTION 1. PURPOSE
This notice sets forth interim guidance,
pending the issuance of regulations, relating to the new fuel cell motor vehicle credit
under § 30B(a)(1) and (b) of the Internal
Revenue Code. Specifically, this notice

March 24, 2008

provides procedures for a vehicle manufacturer (or, in the case of a foreign vehicle manufacturer, its domestic distributor)
to certify to the Internal Revenue Service
(Service) both:
(1) that a vehicle of a particular make,
model, and model year meets certain requirements that must be satisfied to claim
the new qualified fuel cell motor vehicle
credit under § 30B(a)(1) and (b); and
(2) the amount of the credit allowable
with respect to that vehicle.
This notice also provides guidance to
taxpayers who purchase vehicles regarding the conditions under which they may
rely on the vehicle manufacturer’s (or, in
the case of a foreign vehicle manufacturer,
its domestic distributor’s) certification in
determining whether a credit is allowable
with respect to the vehicle and the amount
of the credit. The Service and the Treasury Department expect that the regulations will incorporate the rules set forth in
this notice.
SECTION 2. BACKGROUND
Section 30B(a)(1) provides for a credit
determined under § 30B(b) for certain new
qualified fuel cell motor vehicles. The
base amount of the new qualified fuel cell
motor vehicle credit varies with the gross
vehicle weight rating of the vehicle. The
base amount of the credit applicable to vehicles having a gross vehicle weight of not
more than 8,500 pounds is $8,000 for vehicles placed in service on or before December 31, 2009, and $4,000 for vehicles
placed in service after that date. The base
amount of the credit applicable to heavier
vehicles varies from $10,000 to $40,000
and is not reduced for vehicles placed in
service after December 31, 2009. Passenger automobiles and light trucks, as defined in section 4 of this notice are eligible for an additional fuel economy amount
that varies with the rated fuel economy of
a qualifying vehicle compared to the 2002

model year city fuel economy for a vehicle
in its weight class.
SECTION 3. SCOPE OF NOTICE
.01 Vehicles Covered. This notice applies only to fuel cell motor vehicles. This
notice applies with respect to a fuel cell
motor vehicle whether such vehicle is a
passenger automobile, a light truck, or a
motor vehicle other than a passenger automobile or light truck.
.02 Rules Common to All Qualifying
Vehicles. This notice does not address a
number of rules that are common to all
motor vehicles that qualify for credits under § 30B. These rules include: (1) rules
under which lessors may claim the credits allowable under § 30B; (2) the rule
preventing the credits from being used to
reduce alternative minimum tax liability;
and (3) rules relating to recapture of the
credit. Certain rules applicable to all motor vehicles that qualify for credits under
§ 30B are described in Fact Sheet 2007–9
(http://www.irs.ustreas.gov/newsroom/
article/0,,id=165649,00.html).
SECTION 4. MEANING OF TERMS
The following definitions apply for purposes of this notice:
(1) Passenger Automobile and Light
Truck. Section 30B provides that the
terms “passenger automobile” and “light
truck” have the meaning given in regulations prescribed by the Administrator of
the Environmental Protection Agency for
purposes of the administration of Title II
of the Clean Air Act (42 U.S.C. 7521 et
seq.). Those regulations currently do not
include a definition of these terms, but
§ 30B(b)(2)(B) provides the 2002 model
year city fuel economy tables that must
be used to determine the amount of the
credit for passenger automobiles and light
trucks. Those tables do not prescribe the
fuel economy for vehicles having a gross
vehicle weight of more than 8,500 pounds.

Courier Address
USEPA Headquarters
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Room 6502A
Washington, DC 20004

Mailing Address
USEPA Headquarters
Ariel Rios Building
1200 Pennsylvania Avenue, N.W.
Mail Code: 6401A
Washington, DC 20460

March 24, 2008

Accordingly, until either the Environmental Protection Agency issues regulations or
future guidance issued by the Service provides otherwise (whichever occurs first),
any vehicle having a gross vehicle weight
of more than 8,500 pounds will not be
treated as a passenger automobile or light
truck for purposes of this notice.
(2) City Fuel Economy. The term “city
fuel economy” has the meaning prescribed
in 40 CFR § 600.002–85(11). If fuel is
stored on board a fuel cell motor vehicle
as hydrogen and not in a form that requires
reformation prior to use, city fuel economy
is determined by reference to the consumption of hydrogen. If fuel is stored on board
a fuel cell motor vehicle in a form that requires reformation prior to use, city fuel
economy is determined by reference to the
consumption of such fuel.
(3) Gasoline Gallon Equivalent. In the
case of a motor vehicle that does not use
gasoline, the 2002 model year city fuel
economy is determined on a gasoline-gallon-equivalent basis. If fuel is stored on
board a fuel cell motor vehicle as hydrogen
and not in a form that requires reformation
prior to use, the gasoline gallon equivalent
for the 2002 model year city fuel economy
is determined by converting miles per gallon of gasoline into miles per kilogram of
hydrogen at a conversion ratio of 0.98 mile
per kilogram of hydrogen for each mile per
gallon of gasoline. Thus, for example, the
2002 model year city fuel economy for a
hydrogen-fueled passenger automobile in
the 7,000 to 8,500 pounds vehicle inertia weight class is 11.1 miles per kilogram
of hydrogen (0.98 x 11.3 (the 2002 model
year city fuel economy in miles per gallon
of gasoline)). If fuel (other than gasoline)
is stored on board a fuel cell motor vehicle
in a form that requires reformation prior to
use, the gasoline gallon equivalent for the
2002 model year city fuel economy may be
obtained from the Environmental Protection Agency, Office of Transportation and
Air Quality at the following address:

643

2008–12 I.R.B.

(4) Vehicle Inertia Weight Class. The
term “vehicle inertia weight class” means,
with respect to a motor vehicle, its inertia
weight class determined under 40 CFR
§ 86.129–94. Under 40 CFR § 86.082–2,
the inertia weight class is the class (a
group of test weights) into which a vehicle
is grouped based on its loaded vehicle
weight in accordance with the provisions
of 40 CFR part 86.
SECTION 5. MANUFACTURER’S
CERTIFICATION
.01 When Certification Permitted. A
vehicle manufacturer (or, in the case of a
foreign vehicle manufacturer, its domestic
distributor) may certify to purchasers that
a vehicle of a particular make, model, and
model year meets all requirements (other
than those listed in section 5.02 of this notice) that must be satisfied to claim the new
qualified fuel cell motor vehicle credit, and
the amount of the credit allowable under
§ 30B(a)(1) and (b) with respect to the
vehicle, if the following requirements are
met:
(1) The manufacturer (or, in the case of
a foreign vehicle manufacturer, its domestic distributor) has submitted to the Service, in accordance with section 6 of this
notice, a certification with respect to the
vehicle and the certification satisfies the
requirements of section 5.03 of this notice;
and
(2) The manufacturer (or, in the case of
a foreign vehicle manufacturer, its domestic distributor) has received an acknowledgment of the certification from the Service.
.02 Purchaser’s Reliance. Except as
provided in section 5.05 of this notice, a
purchaser of a vehicle may rely on the
manufacturer’s (or, in the case of a foreign
vehicle manufacturer, its domestic distributor’s) certification concerning the vehicle
and the amount of the credit allowable with
respect to the vehicle (including cases in
which the certification is received after the
purchase of the vehicle). The purchaser
may claim a credit in the certified amount
with respect to the vehicle if the following
requirements are satisfied:
(1) The vehicle is placed in service by
the taxpayer after December 31, 2005, and
is purchased on or before December 31,
2014;

2008–12 I.R.B.

(2) The original use of the vehicle commences with the taxpayer;
(3) The vehicle is acquired for use or
lease by the taxpayer, and not for resale;
and
(4) The vehicle is used predominantly
in the United States.
.03 Content of Certification.
(1) All Vehicles. For all vehicles, the
certification must contain the following information:
(a) The name, address, and taxpayer
identification number of the certifying entity;
(b) The make, model, model year, and
any other appropriate identifiers of the motor vehicle;
(c) A statement that the vehicle is made
by a manufacturer;
(d) The amount of the credit for the vehicle (showing computations);
(e) The gross vehicle weight rating of
the vehicle;
(f) A statement that the vehicle is propelled by power derived from one or more
cells that convert chemical energy directly
into electricity by combining oxygen with
hydrogen fuel which is stored on board the
vehicle in any form and may or may not
require reformation prior to use;
(g) A statement that the vehicle complies with the applicable provisions of the
Clean Air Act;
(h) A statement that the vehicle complies with the applicable air quality provisions of state law of each state that has
adopted the provisions under a waiver under § 209(b) of the Clean Air Act or a list
identifying each state that has adopted applicable air quality provisions with which
the vehicle does not comply;
(i) A statement that the vehicle complies with the motor vehicle safety provisions of 49 U.S.C. §§ 30101 through
30169; and
(j) A declaration, applicable to the
certification and any accompanying documents, signed by a person currently
authorized to bind the manufacturer (or, in
the case of a foreign vehicle manufacturer,
its domestic distributor) in these matters,
in the following form:
“Under penalties of perjury, I declare
that I have examined this certification, including accompanying documents, and to
the best of my knowledge and belief, the
facts presented in support of this certification are true, correct, and complete.”

644

(2) Passenger Automobiles and Light
Trucks. If the vehicle is a passenger automobile or light truck, the certification must
include a copy of the certificate (received
on or after August 8, 2005) that the vehicle
meets or exceeds the applicable Bin 5 Tier
II emission standard established in regulations prescribed by the Administrator of
the Environmental Protection Agency under § 202(i) of the Clean Air Act for that
make and model year vehicle.
(3) Additional Fuel Economy Credit. If
the manufacturer (or, in the case of a foreign manufacturer, its domestic distributor) is certifying that a passenger automobile or light truck is eligible for the additional fuel economy credit allowable under § 30B(b)(2), the certification must also
contain the following information:
(a) The vehicle inertia weight class of
the vehicle; and
(b) The city fuel economy of the vehicle.
.04 Acknowledgment of Certification.
The Service will review the original signed
certification and issue an acknowledgment
letter to the vehicle manufacturer (or, in the
case of a foreign vehicle manufacturer, its
domestic distributor) within 30 days of receipt of the request for certification. This
acknowledgment letter will state whether
purchasers may rely on the certification.
.05 Effect of Erroneous Certification.
The acknowledgment that the Service provides for a certification is not a determination that a vehicle qualifies for the credit,
or that the amount of the credit is correct.
The Service may, upon examination (and
after any appropriate consultation with the
Department of Transportation or the Environmental Protection Agency), determine
that the vehicle is not a new qualified fuel
cell motor vehicle or that the amount of the
credit determined by the manufacturer (or,
in the case of a foreign vehicle manufacturer, its domestic distributor) to be allowable with respect to the vehicle is incorrect.
In either event, the manufacturer’s (or, in
the case of a foreign vehicle manufacturer,
its domestic distributor’s) right to provide
a certification to future purchasers of new
fuel cell motor vehicles will be withdrawn,
and purchasers who acquire a vehicle after
the date on which the Service publishes an
announcement of the withdrawal may not
rely on the certification. Purchasers may
continue to rely on the certification for vehicles they acquired on or before the date

March 24, 2008

on which the announcement of the withdrawal is published (including in cases in
which the vehicle is not placed in service
and the credit is not claimed until after that
date), and the Service will not attempt to
collect any understatement of tax liability
attributable to such reliance. Manufacturers (or, in the case of foreign vehicle manufacturers, their domestic distributors) are
reminded that an erroneous certification or
an erroneous quarterly report may result in
the imposition of penalties—
(1) under § 7206 for fraud and making
false statements; and
(2) under § 6701 for aiding and abetting
an understatement of tax liability in the
amount of $1,000 ($10,000 in the case of
understatements by corporations) per return on which a credit is claimed in reliance on the certification).
SECTION 6. TIME AND ADDRESS
FOR FILING CERTIFICATION
.01 Time for Filing Certification. In order for a certification under section 5 of
this notice to be effective for new qualified fuel cell motor vehicles placed in service during a calendar year beginning after December 31, 2007, the certification
must be received by the Service not later
than December 31st of that calendar year.
In order for a certification under section 5
of this notice to be effective for new fuel
cell motor vehicles placed in service during 2006 and 2007, the certification must
be received by the Service not later than
December 31, 2008.
.02 Address for Filing. Certifications
under section 5 of this notice must be sent
to:
Internal Revenue Service
Industry Director, Large and
Mid-Size Business,
Heavy Manufacturing and
Transportation
Metro Park Office Complex —
LMSB
111 Wood Avenue, South
Iselin, New Jersey 08830
SECTION 7. PAPERWORK
REDUCTION ACT
The collection of information contained
in this notice has been reviewed and approved by the Office of Management and
Budget in accordance with the Paperwork

March 24, 2008

Reduction Act (44 U.S.C. 3507) under
control number 1545–2028.
An agency may not conduct or sponsor,
and a person is not required to respond
to a collection of information unless the
collection of information displays a valid
OMB control number.
The collections of information in this
notice are in section 5. This information
is required to be collected and retained in
order to ensure that vehicles meet the requirements for the new qualified fuel cell
motor vehicle credit under § 30B(a)(1) and
(b). This information will be used to determine whether the vehicle for which the
credit is claimed by a taxpayer is property
that qualifies for the credit. The collection
of information is required to obtain a benefit. The likely respondents are corporations and partnerships.
The estimated total annual reporting
burden is 200 hours.
The estimated annual burden per respondent varies from 35 hours to 45 hours,
depending on individual circumstances,
with an estimated average burden of 40
hours to complete the certification required under this notice. The estimated
number of respondents is 5.
The estimated annual frequency of responses is on occasion.
Books or records relating to a collection
of information must be retained as long
as their contents may become material in
the administration of any internal revenue
law. Generally, tax returns and tax return
information are confidential, as required
by 26 U.S.C. 6103.
SECTION 8. DRAFTING
INFORMATION
The principal author of this notice is
Jaime C. Park of the Office of Associate
Chief Counsel (Passthroughs & Special Industries). For further information regarding this notice, contact Jaime C. Park at
(202) 622–3110 (not a toll-free call).

Distressed Asset Trust (DAT)
Transaction
Notice 2008–34
The Internal Revenue Service (Service)
and the Treasury Department are aware of
a type of transaction, described below, in

645

which a tax indifferent party, directly or indirectly, contributes one or more distressed
assets (for example, a creditor’s interest in
debt) with a high basis and low fair market value to a trust or series of trusts and
sub-trusts, and a U.S. taxpayer acquires
an interest in the trust (and/or series of
trusts and/or sub-trusts) for the purpose of
shifting a built-in loss from the tax indifferent party to the U.S. taxpayer that has
not incurred the economic loss. This notice alerts taxpayers and their representatives that this transaction (referred to as a
distressed asset trust or DAT transaction)
is a tax avoidance transaction and identifies this transaction, and substantially similar transactions, as listed transactions for
purposes of § 1.6011–4(b)(2) of the Income Tax Regulations and §§ 6111 and
6112 of the Internal Revenue Code. This
notice also alerts persons involved with
these transactions to certain responsibilities that may arise from their involvement
with these transactions.
BACKGROUND
The Service and Treasury Department
are aware that, prior to October 23, 2004,
taxpayers used partnerships improperly
to engage in variations of the distressed
asset transaction described in this notice.
The Coordinated Issue Paper, “Distressed
Asset/Debt Coordinated Issue Paper,”
LMSB–04–0407–031 (Apr. 18, 2007)
describes the variation of the distressed
asset transaction involving partnerships
(DAD). The American Jobs Creation Act
of 2004, Public Law 108–357 (118 Stat.
1418) (AJCA), amended §§ 704, 734 and
743 effective after October 22, 2004, for
contributions of built-in loss property to a
partnership, for basis adjustment rules in
the case of a distribution for which there is
a substantial basis reduction, and for basis
adjustment rules in the case of a transfer
of a partnership interest for which there is
a substantial built-in loss. The revisions
to §§ 704, 734 and 743 generally (1) require that a built-in loss may be taken into
account only by the contributing partner
and not other partners, and (2) make the
basis adjustment rules mandatory in cases
with a substantial basis reduction or substantial built-in loss. Thus, the statutory
changes to §§ 704, 734 and 743 under
AJCA prevent taxpayers from shifting a
built-in loss from a tax indifferent party

2008–12 I.R.B.