Superfund/Initial List of Taxable Substances: Internal Revenue Service Issues Notice 2021-66

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

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The Internal Revenue Service (“IRS”) has published Notice 2021-66 titled:

Superfund: Initial List of Taxable Substances; Registration; Procedural Rules; Request for Comments; Suspension of Notice 89-61 (“Notice 2021-66”)

Notice 2021-66 has been published in response to the reinstatement of certain Hazardous Substance Superfund Trust Fund (“Superfund”) excise taxes on the production or import of listed chemicals.

“Superfund” is a name often applied to the Comprehensive Environmental Response, Compensation, and Liability Act that, when originally enacted in 1980, created a hazardous substance cleanup program. Section 221 of Superfund established a “Hazardous Substance Trust Fund” (“Trust Fund”).

The Trust Fund was originally funded in part by excise tax revenue generated primarily from excise taxes on:

  1. Domestic crude oil and imported petroleum
  2. 42 listed hazardous chemicals and metal compounds
  3. Imported substances utilizing one or more of the hazardous chemicals in their manufacturing production

This Superfund taxing authority expired in 1995.

The recently enacted Infrastructure Investment and Jobs Act (“IIJA”) reinstates the excise tax on the production or import of certain chemicals through December 31, 2031. The domestic crude oil and imported petroleum excise taxes were not reinstated.

The effective date of the reinstated tax is June 30, 2020.

Notice 2021-66 provides the initial list of taxable substances required to be published by the Secretary of the Treasury. It also addresses:

  • registration requirements
  • exemptions for sales and uses of taxable chemicals from the taxes
  • procedural rules applying to taxpayers subject to the taxes

A copy of Notice 2021-66 can be downloaded here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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