[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[S. 2110 Introduced in Senate (IS)]
108th CONGRESS
2d Session
S. 2110
To amend the Internal Revenue Code of 1986 to extend the Highway Trust
Fund provisions through March 31, 2004, and to add the volumetric
ethanol excise tax credit (VEETC), and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
February 24, 2004
Mr. Grassley (for himself and Mr. Baucus) introduced the following
bill; which was read twice and referred to the Committee on Finance
_______________________________________________________________________
A BILL
To amend the Internal Revenue Code of 1986 to extend the Highway Trust
Fund provisions through March 31, 2004, and to add the volumetric
ethanol excise tax credit (VEETC), and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Surface Transportation Extension Act
of 2004''.
SEC. 2. EXTENSION OF AUTHORIZATION FOR USE OF TRUST FUNDS FOR
OBLIGATIONS UNDER TEA-21.
(a) Highway Trust Fund.--
(1) In general.--Paragraph (1) of section 9503(c) of the
Internal Revenue Code of 1986 is amended--
(A) in the matter before subparagraph (A), by
striking ``March 1, 2004'' and inserting ``April 1,
2004'',
(B) by striking ``or'' at the end of subparagraph
(E),
(C) by striking the period at the end of
subparagraph (F) and inserting ``, or'',
(D) by inserting after subparagraph (F), the
following new subparagraph:
``(G) authorized to be paid out of the Highway
Trust Fund under the Surface Transportation Extension
Act of 2004.'', and
(E) in the matter after subparagraph (G), as added
by this paragraph, by striking ``Surface Transportation
Extension Act of 2003'' and inserting ``Surface
Transportation Extension Act of 2004''.
(2) Mass transit account.--Paragraph (3) of section 9503(e)
of such Code is amended--
(A) in the matter before subparagraph (A), by
striking ``March 1, 2004'' and inserting ``April 1,
2004'',
(B) in subparagraph (C), by striking ``or'' at the
end of such subparagraph,
(C) in subparagraph (D), by inserting ``or'' at the
end of such subparagraph,
(D) by inserting after subparagraph (D) the
following new subparagraph:
``(E) the Surface Transportation Extension Act of
2004,'', and
(E) in the matter after subparagraph (E), as added
by this paragraph, by striking ``Surface Transportation
Extension Act of 2003'' and inserting ``Surface
Transportation Extension Act of 2004''.
(3) Exception to limitation on transfers.--Subparagraph (B)
of section 9503(b)(5) of such Code is amended by striking
``March 1, 2004'' and inserting ``April 1, 2004''.
(b) Aquatic Resources Trust Fund.--
(1) Sport fish restoration account.--Paragraph (2) of
section 9504(b) of the Internal Revenue Code of 1986 is amended
by striking ``Surface Transportation Extension Act of 2003''
each place it appears and inserting ``Surface Transportation
Extension Act of 2004''.
(2) Boat safety account.--Subsection (c) of section 9504 of
such Code is amended--
(A) by striking ``March 1, 2004'' and inserting
``April 1, 2004'', and
(B) by striking ``Surface Transportation Extension
Act of 2003'' and inserting ``Surface Transportation
Extension Act of 2004''.
(3) Exception to limitation on transfers.--Paragraph (2) of
section 9504(d) of such Code is amended by striking ``March 1,
2004'' and inserting ``April 1, 2004''.
(c) Effective Date.--The amendments made by this section shall take
effect on the date of the enactment of this Act.
(d) Temporary Rule Regarding Adjustments.--During the period
beginning on the date of the enactment of the Surface Transportation
Extension Act of 2003 and ending on March 31, 2004, for purposes of
making any estimate under section 9503(d) of the Internal Revenue Code
of 1986 of receipts of the Highway Trust Fund, the Secretary of the
Treasury shall treat--
(1) each expiring provision of paragraphs (1) through (4)
of section 9503(b) of such Code which is related to
appropriations or transfers to such Fund to have been extended
through the end of the 24-month period referred to in section
9503(d)(1)(B) of such Code, and
(2) with respect to each tax imposed under the sections
referred to in section 9503(b)(1) of such Code, the rate of
such tax during the 24-month period referred to in section
9503(d)(1)(B) of such Code to be the same as the rate of such
tax as in effect on the date of the enactment of the Surface
Transportation Extension Act of 2003.
SEC. 3. ALCOHOL AND BIODIESEL EXCISE TAX CREDIT AND EXTENSION OF
ALCOHOL FUELS INCOME TAX CREDIT.
(a) In General.--Subchapter B of chapter 65 of the Internal Revenue
Code of 1986 (relating to rules of special application) is amended by
inserting after section 6425 the following new section:
``SEC. 6426. CREDIT FOR ALCOHOL FUEL AND BIODIESEL MIXTURES.
``(a) Allowance of Credits.--There shall be allowed as a credit
against the tax imposed by section 4081 an amount equal to the sum of--
``(1) the alcohol fuel mixture credit, plus
``(2) the biodiesel mixture credit.
``(b) Alcohol Fuel Mixture Credit.--
``(1) In general.--For purposes of this section, the
alcohol fuel mixture credit is the product of the applicable
amount and the number of gallons of alcohol used by the
taxpayer in producing any alcohol fuel mixture for sale or use
in a trade or business of the taxpayer.
``(2) Applicable amount.--For purposes of this subsection--
``(A) In general.--Except as provided in
subparagraph (B), the applicable amount is 52 cents (51
cents in the case of any sale or use after 2004).
``(B) Mixtures not containing ethanol.--In the case
of an alcohol fuel mixture in which none of the alcohol
consists of ethanol, the applicable amount is 60 cents.
``(3) Alcohol fuel mixture.--For purposes of this
subsection, the term `alcohol fuel mixture' means a mixture of
alcohol and a taxable fuel which--
``(A) is sold by the taxpayer producing such
mixture to any person for use as a fuel,
``(B) is used as a fuel by the taxpayer producing
such mixture, or
``(C) is removed from the refinery by a person
producing such mixture.
``(4) Other definitions.--For purposes of this subsection--
``(A) Alcohol.--The term `alcohol' includes
methanol and ethanol but does not include--
``(i) alcohol produced from petroleum,
natural gas, or coal (including peat), or
``(ii) alcohol with a proof of less than
190 (determined without regard to any added
denaturants).
Such term also includes an alcohol gallon equivalent of
ethyl tertiary butyl ether or other ethers produced
from such alcohol.
``(B) Taxable fuel.--The term `taxable fuel' has
the meaning given such term by section 4083(a)(1).
``(5) Termination.--This subsection shall not apply to any
sale, use, or removal for any period after December 31, 2010.
``(c) Biodiesel Mixture Credit.--
``(1) In general.--For purposes of this section, the
biodiesel mixture credit is the product of the applicable
amount and the number of gallons of biodiesel used by the
taxpayer in producing any biodiesel mixture for sale or use in
a trade or business of the taxpayer.
``(2) Applicable amount.--For purposes of this subsection--
``(A) In general.--Except as provided in
subparagraph (B), the applicable amount is 50 cents.
``(B) Amount for agri-biodiesel.--In the case of
any biodiesel which is agri-biodiesel, the applicable
amount is $1.00.
``(3) Biodiesel mixture.--For purposes of this section, the
term `biodiesel mixture' means a mixture of biodiesel and
diesel fuel (as defined in section 4083(a)(3)), determined
without regard to any use of kerosene, which--
``(A) is sold by the taxpayer producing such
mixture to any person for use as a fuel,
``(B) is used as a fuel by the taxpayer producing
such mixture, or
``(C) is removed from the refinery by a person
producing such mixture.
``(4) Certification for biodiesel.--No credit shall be
allowed under this section unless the taxpayer obtains a
certification (in such form and manner as prescribed by the
Secretary) from the producer of the biodiesel which identifies
the product produced and the percentage of biodiesel and agri-
biodiesel in the product.
``(5) Other definitions.--Any term used in this subsection
which is also used in section 40A shall have the meaning given
such term by section 40A.
``(6) Termination.--This subsection shall not apply to any
sale, use, or removal for any period after December 31, 2006.
``(d) Mixture Not Used as a Fuel, etc.--
``(1) Imposition of tax.--If--
``(A) any credit was determined under this section
with respect to alcohol or biodiesel used in the
production of any alcohol fuel mixture or biodiesel
mixture, respectively, and
``(B) any person--
``(i) separates the alcohol or biodiesel
from the mixture, or
``(ii) without separation, uses the mixture
other than as a fuel,
then there is hereby imposed on such person a tax equal
to the product of the applicable amount and the number
of gallons of such alcohol or biodiesel.
``(2) Applicable laws.--All provisions of law, including
penalties, shall, insofar as applicable and not inconsistent
with this section, apply in respect of any tax imposed under
paragraph (1) as if such tax were imposed by section 4081 and
not by this section.
``(e) Coordination With Exemption From Excise Tax.--Rules similar
to the rules under section 40(c) shall apply for purposes of this
section.''.
(b) Registration Requirement.--Section 4101(a) of the Internal
Revenue Code of 1986 (relating to registration) is amended by inserting
``and every person producing or importing biodiesel (as defined in
section 40A(d)(1)) or alcohol (as defined in section 6426(b)(4)(A))''
after ``4081''.
(c) Additional Amendments.--
(1) Section 40(c) of the Internal Revenue Code of 1986 is
amended by striking ``section 4081(c), or section 4091(c)'' and
inserting ``section 4091(c), section 6426, section 6427(e), or
section 6427(f)''.
(2) Section 40(d)(4)(B) of such Code is amended by striking
``or 4081(c)''.
(3) Section 40(e)(1) of such Code is amended--
(A) by striking ``2007'' in subparagraph (A) and
inserting ``2010'', and
(B) by striking ``2008'' in subparagraph (B) and
inserting ``2011''.
(4) Section 40(h) of such Code is amended--
(A) by striking ``2007'' in paragraph (1) and
inserting ``2010'', and
(B) by striking ``, 2006, or 2007'' in the table
contained in paragraph (2) and inserting ``through
2010''.
(5) Section 4041(b)(2)(B) of such Code is amended by
striking ``a substance other than petroleum or natural gas''
and inserting ``coal (including peat)''.
(6) Paragraph (1) of section 4041(k) of such Code is
amended to read as follows:
``(1) In general.--Under regulations prescribed by the
Secretary, in the case of the sale or use of any liquid at
least 10 percent of which consists of alcohol (as defined in
section 6426(b)(4)(A)), the rate of the tax imposed by
subsection (c)(1) shall be the comparable rate under section
4091(c).''.
(7) Section 4081 of such Code is amended by striking
subsection (c).
(8) Paragraph (2) of section 4083(a) of such Code is
amended to read as follows:
``(2) Gasoline.--The term `gasoline'--
``(A) includes any gasoline blend, other than
qualified methanol or ethanol fuel (as defined in
section 4041(b)(2)(B)), partially exempt methanol or
ethanol fuel (as defined in section 4041(m)(2)), or a
denatured alcohol, and
``(B) includes, to the extent prescribed in
regulations--
``(i) any gasoline blend stock, and
``(ii) any product commonly used as an
additive in gasoline (other than alcohol).
For purposes of subparagraph (B)(i), the term `gasoline blend
stock' means any petroleum product component of gasoline.''.
(9) Section 6427 of such Code is amended by inserting after
subsection (d) the following new subsection:
``(e) Alcohol or Biodiesel Used To Produce Alcohol Fuel and
Biodiesel Mixtures or Used as Fuels.--Except as provided in subsection
(k)--
``(1) Used to produce a mixture.--If any person produces a
mixture described in section 6426 in such person's trade or
business, the Secretary shall pay (without interest) to such
person an amount equal to the alcohol fuel mixture credit or
the biodiesel mixture credit with respect to such mixture.
``(2) Used as fuel.--If alcohol (as defined in section
40(d)(1)) or biodiesel (as defined in section 40A(d)(1)) or
agri-biodiesel (as defined in section 40A(d)(2)) which is not
in a mixture described in section 6426--
``(A) is used by any person as a fuel in a trade or
business, or
``(B) is sold by any person at retail to another
person and placed in the fuel tank of such person's
vehicle,
the Secretary shall pay (without interest) to such person an
amount equal to the alcohol credit (as determined under section
40(b)(2)) or the biodiesel credit (as determined under section
40A(b)(2)) with respect to such fuel.
``(3) Coordination with other repayment provisions.--No
amount shall be payable under paragraph (1) with respect to any
mixture with respect to which an amount is allowed as a credit
under section 6426.
``(4) Termination.--This subsection shall not apply with
respect to--
``(A) any alcohol fuel mixture (as defined in
section 6426(b)(3)) or alcohol (as so defined) sold or
used after December 31, 2010, and
``(B) any biodiesel mixture (as defined in section
6426(c)(3)) or biodiesel (as so defined) or agri-
biodiesel (as so defined) sold or used after December
31, 2006.''.
(10) Subsection (f) of section 6427 of such Code is amended
to read as follows:
``(f) Aviation Fuel Used To Produce Certain Alcohol Fuels.--
``(1) In general.--Except as provided in subsection (k), if
any aviation fuel on which tax was imposed by section 4091 at
the regular tax rate is used by any person in producing a
mixture described in section 4091(c)(1)(A) which is sold or
used in such person's trade or business, the Secretary shall
pay (without interest) to such person an amount equal to the
excess of the regular tax rate over the incentive tax rate with
respect to such fuel.
``(2) Definitions.--For purposes of paragraph (1)--
``(A) Regular tax rate.--The term `regular tax
rate' means the aggregate rate of tax imposed by
section 4091 determined without regard to subsection
(c) thereof.
``(B) Incentive tax rate.--The term `incentive tax
rate' means the aggregate rate of tax imposed by
section 4091 with respect to fuel described in
subsection (c)(2) thereof.
``(3) Coordination with other repayment provisions.--No
amount shall be payable under paragraph (1) with respect to any
aviation fuel with respect to which an amount is payable under
subsection (d) or (l).
``(4) Termination.--This subsection shall not apply with
respect to any mixture sold or used after September 30,
2007.''.
(11) Paragraphs (1) and (2) of section 6427(i) of such Code
are amended by inserting ``(f),'' after ``(d),''.
(12) Section 6427(i)(3) of such Code is amended--
(A) by striking ``subsection (f)'' both places it
appears in subparagraph (A) and inserting ``subsection
(e)(1)'',
(B) by striking ``gasoline, diesel fuel, or
kerosene used to produce a qualified alcohol mixture
(as defined in section 4081(c)(3))'' in subparagraph
(A) and inserting ``a mixture described in section
6426'',
(C) by adding at the end of subparagraph (A) the
following new flush sentence:
``In the case of an electronic claim, this subparagraph
shall be applied without regard to clause (i).'',
(D) by striking ``subsection (f)(1)'' in
subparagraph (B) and inserting ``subsection (e)(1)'',
(E) by striking ``20 days of the date of the filing
of such claim'' in subparagraph (B) and inserting ``45
days of the date of the filing of such claim (20 days
in the case of an electronic claim)'', and
(F) by striking ``alcohol mixture'' in the heading
and inserting ``alcohol fuel and biodiesel mixture''.
(13) Section 6427(o) of such Code is amended--
(A) by striking paragraph (1) and inserting the
following new paragraph:
``(1) any tax is imposed by section 4081, and'',
(B) by striking ``such gasohol'' in paragraph (2)
and inserting ``the alcohol fuel mixture (as defined in
section 6426(b)(3))'',
(C) by striking ``gasohol'' both places it appears
in the matter following paragraph (2) and inserting
``alcohol fuel mixture'', and
(D) by striking ``Gasohol'' in the heading and
inserting ``Alcohol Fuel Mixture''.
(14) Section 9503(b)(1) of such Code is amended by adding
at the end the following new flush sentence:
``For purposes of this paragraph, taxes received under sections
4041 and 4081 shall be determined without reduction for credits
under section 6426.''.
(15) Section 9503(b)(4) of such Code is amended--
(A) by adding ``or'' at the end of subparagraph
(C),
(B) by striking the comma at the end of
subparagraph (D)(iii) and inserting a period, and
(C) by striking subparagraphs (E) and (F).
(16) Section 9503(c)(2)(A)(i)(III) of such Code is amended
by inserting ``(other than subsection (e) thereof)'' after
``section 6427''.
(17) Section 9503(e)(2) of such Code is amended by striking
subparagraph (B) and by redesignating subparagraphs (C), (D),
and (E) as subparagraphs (B), (C), and (D), respectively.
(18) The table of sections for subchapter B of chapter 65
of such Code is amended by inserting after the item relating to
section 6425 the following new item:
``Sec. 6426. Credit for alcohol fuel and biodiesel mixtures.''.
(19) Tariff schedule.--Headings 9901.00.50 and 9901.00.52
of the Harmonized Tariff Schedule of the United States (19
U.S.C. 3007) are each amended in the effective period column by
striking ``10/1/2007'' each place it appears and inserting ``1/
1/2011''.
(d) Effective Dates.--
(1) In general.--Except as otherwise provided in this
subsection, the amendments made by this section shall apply to
fuel sold or used after September 30, 2004.
(2) Registration requirement.--The amendment made by
subsection (b) shall take effect on April 1, 2005.
(3) Extension of alcohol fuels credit.--The amendments made
by paragraphs (3), (4), and (19) of subsection (c) shall take
effect on the date of the enactment of this Act.
(4) Repeal of general fund retention of certain alcohol
fuels taxes.--The amendments made by subsection (c)(15) shall
apply to fuel sold or used after September 30, 2003.
(e) Format for Filing.--The Secretary of the Treasury shall
describe the electronic format for filing claims described in section
6427(i)(3)(B) of the Internal Revenue Code of 1986 (as amended by
subsection (c)(12)(C)) not later than September 30, 2004.
SEC. 4. BIODIESEL INCOME TAX CREDIT.
(a) In General.--Subpart D of part IV of subchapter A of chapter 1
of the Internal Revenue Code of 1986 (relating to business related
credits) is amended by inserting after section 40 the following new
section:
``SEC. 40A. BIODIESEL USED AS FUEL.
``(a) General Rule.--For purposes of section 38, the biodiesel
fuels credit determined under this section for the taxable year is an
amount equal to the sum of--
``(1) the biodiesel mixture credit, plus
``(2) the biodiesel credit.
``(b) Definition of Biodiesel Mixture Credit and Biodiesel
Credit.--For purposes of this section--
``(1) Biodiesel mixture credit.--
``(A) In general.--The biodiesel mixture credit of
any taxpayer for any taxable year is 50 cents for each
gallon of biodiesel used by the taxpayer in the
production of a qualified biodiesel mixture.
``(B) Qualified biodiesel mixture.--The term
`qualified biodiesel mixture' means a mixture of
biodiesel and diesel fuel (as defined in section
4083(a)(3)), determined without regard to any use of
kerosene, which--
``(i) is sold by the taxpayer producing
such mixture to any person for use as a fuel,
or
``(ii) is used as a fuel by the taxpayer
producing such mixture.
``(C) Sale or use must be in trade or business,
etc.--Biodiesel used in the production of a qualified
biodiesel mixture shall be taken into account--
``(i) only if the sale or use described in
subparagraph (B) is in a trade or business of
the taxpayer, and
``(ii) for the taxable year in which such
sale or use occurs.
``(D) Casual off-farm production not eligible.--No
credit shall be allowed under this section with respect
to any casual off-farm production of a qualified
biodiesel mixture.
``(2) Biodiesel credit.--
``(A) In general.--The biodiesel credit of any
taxpayer for any taxable year is 50 cents for each
gallon of biodiesel which is not in a mixture with
diesel fuel and which during the taxable year--
``(i) is used by the taxpayer as a fuel in
a trade or business, or
``(ii) is sold by the taxpayer at retail to
a person and placed in the fuel tank of such
person's vehicle.
``(B) User credit not to apply to biodiesel sold at
retail.--No credit shall be allowed under subparagraph
(A)(i) with respect to any biodiesel which was sold in
a retail sale described in subparagraph (A)(ii).
``(3) Credit for agri-biodiesel.--In the case of any
biodiesel which is agri-biodiesel, paragraphs (1)(A) and (2)(A)
shall be applied by substituting `$1.00' for `50 cents'.
``(4) Certification for biodiesel.--No credit shall be
allowed under this section unless the taxpayer obtains a
certification (in such form and manner as prescribed by the
Secretary) from the producer or importer of the biodiesel which
identifies the product produced and the percentage of biodiesel
and agri-biodiesel in the product.
``(c) Coordination With Credit Against Excise Tax.--The amount of
the credit determined under this section with respect to any biodiesel
shall be properly reduced to take into account any benefit provided
with respect to such biodiesel solely by reason of the application of
section 6426 or 6427(e).
``(d) Definitions and Special Rules.--For purposes of this
section--
``(1) Biodiesel.--The term `biodiesel' means the monoalkyl
esters of long chain fatty acids derived from plant or animal
matter which meet--
``(A) the registration requirements for fuels and
fuel additives established by the Environmental
Protection Agency under section 211 of the Clean Air
Act (42 U.S.C. 7545), and
``(B) the requirements of the American Society of
Testing and Materials D6751.
``(2) Agri-biodiesel.--The term `agri-biodiesel' means
biodiesel derived solely from virgin oils, including esters
derived from virgin vegetable oils from corn, soybeans,
sunflower seeds, cottonseeds, canola, crambe, rapeseeds,
safflowers, flaxseeds, rice bran, and mustard seeds, and from
animal fats.
``(3) Mixture or biodiesel not used as a fuel, etc.--
``(A) Mixtures.--If--
``(i) any credit was determined under this
section with respect to biodiesel used in the
production of any qualified biodiesel mixture,
and
``(ii) any person--
``(I) separates the biodiesel from
the mixture, or
``(II) without separation, uses the
mixture other than as a fuel,
then there is hereby imposed on such person a tax equal
to the product of the rate applicable under subsection
(b)(1)(A) and the number of gallons of such biodiesel
in such mixture.
``(B) Biodiesel.--If--
``(i) any credit was determined under this
section with respect to the retail sale of any
biodiesel, and
``(ii) any person mixes such biodiesel or
uses such biodiesel other than as a fuel,
then there is hereby imposed on such person a tax equal
to the product of the rate applicable under subsection
(b)(2)(A) and the number of gallons of such biodiesel.
``(C) Applicable laws.--All provisions of law,
including penalties, shall, insofar as applicable and
not inconsistent with this section, apply in respect of
any tax imposed under subparagraph (A) or (B) as if
such tax were imposed by section 4081 and not by this
chapter.
``(4) Pass-thru in the case of estates and trusts.--Under
regulations prescribed by the Secretary, rules similar to the
rules of subsection (d) of section 52 shall apply.
``(e) Termination.--This section shall not apply to any sale or use
after December 31, 2006.''.
(b) Credit Treated as Part of General Business Credit.--Section
38(b) of the Internal Revenue Code of 1986 (relating to current year
business credit) is amended by striking ``plus'' at the end of
paragraph (14), by striking the period at the end of paragraph (15) and
inserting ``, plus'', and by adding at the end the following new
paragraph:
``(16) the biodiesel fuels credit determined under section
40A(a).''.
(c) Conforming Amendments.--
(1) Section 39(d) of the Internal Revenue Code of 1986 is
amended by adding at the end the following new paragraph:
``(11) No carryback of biodiesel fuels credit before
effective date.--No portion of the unused business credit for
any taxable year which is attributable to the biodiesel fuels
credit determined under section 40A may be carried back to a
taxable year ending on or before September 30, 2004.''.
(2)(A) Section 87 of such Code is amended to read as
follows:
``SEC. 87. ALCOHOL AND BIODIESEL FUELS CREDITS.
``Gross income includes--
``(1) the amount of the alcohol fuels credit determined
with respect to the taxpayer for the taxable year under section
40(a), and
``(2) the biodiesel fuels credit determined with respect to
the taxpayer for the taxable year under section 40A(a).''.
(B) The item relating to section 87 in the table of
sections for part II of subchapter B of chapter 1 of such Code
is amended by striking ``fuel credit'' and inserting ``and
biodiesel fuels credits''.
(3) Section 196(c) of such Code is amended by striking
``and'' at the end of paragraph (9), by striking the period at
the end of paragraph (10) and inserting ``, and'', and by
adding at the end the following new paragraph:
``(11) the biodiesel fuels credit determined under section
40A(a).''.
(4) The table of sections for subpart D of part IV of
subchapter A of chapter 1 of such Code is amended by adding
after the item relating to section 40 the following new item:
``Sec. 40A. Biodiesel used as fuel.''.
(d) Effective Date.--The amendments made by this section shall
apply to fuel produced, and sold or used, after September 30, 2004, in
taxable years ending after such date.
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