  United States Court of Appeals
      for the Federal Circuit
                ______________________

   ALTERNATIVE CARBON RESOURCES, LLC,
             Plaintiff-Appellant

                           v.

                  UNITED STATES,
                  Defendant-Appellee
                ______________________

                      2018-1948
                ______________________

   Appeal from the United States Court of Federal Claims
in No. 1:15-cv-00155-MMS, Chief Judge Margaret M.
Sweeney.
                ______________________

              Decided: September 26, 2019
                ______________________

   VIVIAN D. HOARD, Taylor English Duma LLP, Atlanta,
GA, argued for plaintiff-appellant. Also represented by
BRIAN GARDNER, KELLY MULLALLY; WILLIAM SIDNEY
SMITH, Smith & Kramer, PC, Des Moines, IA.

    CLINT CARPENTER, Tax Division, United States Depart-
ment of Justice, Washington, DC, argued for defendant-ap-
pellee. Also represented by TERESA E. MCLAUGHLIN,
RICHARD E. ZUCKERMAN.
                 ______________________

  Before O’MALLEY, REYNA, and CHEN, Circuit Judges.
2           ALTERNATIVE CARBON RESOURCES v. UNITED STATES




O’MALLEY, Circuit Judge.
    Appellant Alternative Carbon Resources, LLC claimed
nearly $20 million in energy tax credits meant for taxpay-
ers who sell alternative fuel mixtures. The Internal Reve-
nue Service (“IRS”) later determined that Alternative
Carbon should not have claimed these credits and it de-
manded repayment (along with interest and penalties).
Alternative Carbon paid back the government, in part, and
then filed this refund suit in the United States Court of
Federal Claims (“Claims Court”).
     After the parties filed cross-motions for summary judg-
ment, the Claims Court decided that Alternative Carbon
failed to establish that it properly claimed the credits or
that it had reasonable cause to do so. Alternative Carbon
Res., LLC v. United States, 137 Fed. Cl. 1 (2018).
The Claims Court therefore granted summary judgment
for the government.
     Alternative Carbon appeals, arguing that it is entitled
to claim the credits or that it at least had reasonable cause
for claiming them and so it should not have to pay any pen-
alties. Because we conclude that Alternative Carbon can-
not show it is entitled to the credits or that it had
reasonable cause for claiming them, we affirm.
                       I. BACKGROUND
           A. Alternative Fuel Mixture Credits
    We begin with a brief overview of the tax credits that
Alternative Carbon claimed. Section 6426(e) allows tax-
payers to obtain a credit for “producing any alternative fuel
mixture for sale or use in a trade or business of the tax-
payer.” 26 U.S.C. § 6426(e)(1). The statute then defines an
“alternative fuel mixture” as “a mixture of alternative fuel
and taxable fuel” that is either “sold by the taxpayer . . . for
use as fuel” or “used as a fuel by the taxpayer producing
such mixture.” Id. at § 6426(e)(2)(A)–(B).
ALTERNATIVE CARBON RESOURCES v. UNITED STATES               3



     As is typical in tax law, this definition of alternative
fuel mixture incorporates other parts of the Internal Reve-
nue Code by reference. For example, the statute relies on
subsections (A), (B), and (C) of § 4083(a)(1) to supply a def-
inition for “taxable fuel.” See id. As relevant here, that
definition includes “diesel fuel.” Id. at § 4083(a)(1)(B).
The statute also defines “alternative fuel” based on a list of
examples that includes “liquid fuel derived from biomass
(as defined in section 45K(c)(3)).” Id. at § 6426(d)(2)(G);
see also id. at § 45K(c)(3) (broadly defining biomass as “any
organic material” besides oil, natural gas, and coal).
The statute does not, however, define what it means for a
mixture to be “sold by the taxpayer.” Id. at § 6426(e)(2)(A).
     In 2006, the IRS issued a “notice” regarding § 6426.
See I.R.S. Notice 2006-92, 2006-2 C. B. 774. Among other
things, the IRS interpreted alternative fuel mixture to
“mean[] a mixture of alternative fuel and taxable fuel that
contains at least 0.1 percent (by volume) of taxable fuel (as
defined in § 4083(a)(1)).” Id. at § 2(b). It also explained
that “[a] mixture producer sells a mixture for use as a fuel
if the producer has reason to believe that the mixture will
be used as a fuel.” Id. § 2(f)(2). The notice does not address
what it means for an alternative fuel mixture to be sold in
the first place.
    To put all of this in plain English, a taxpayer can claim
the alternative fuel mixture credit under § 6426 by selling
a mixture of alternative fuel, e.g., liquid fuel derived from
biomass, and taxable fuel, e.g., diesel fuel, so long as the
mixture is ultimately sold for use as fuel. 1 The issues in


    1   Section 6426(a) also provides that “[n]o credit shall
be allowed in the case of the credits described in subsec-
tions (d) and (e) unless the taxpayer is registered under
section 4101.” 26 U.S.C. § 6426(a). There is no dispute
that Alternative Carbon satisfied this condition. See Alter-
native Carbon, 137 Fed. Cl. at 22.
4          ALTERNATIVE CARBON RESOURCES v. UNITED STATES




this appeal are, thus, whether the taxpayer actually sold
the fuel mixture here and, if so, whether any such sale was
“for use as fuel.”
             B. Alternative Carbon’s Business
    Alternative Carbon argues that it is entitled to claim
this alternative fuel mixture credit because it sold an alter-
native fuel mixture to third parties who, in turn, used the
mixture as fuel in anaerobic digestion tanks. Before ad-
dressing this argument, we briefly discuss anaerobic diges-
tion and Alternative Carbon’s business model.
See also Alternative Carbon, 137 Fed. Cl. at 7–12, 16–19.
    Some microorganisms produce methane when they di-
gest organic matter. The input for this process of anaerobic
digestion, i.e., the organic material that the microorgan-
isms digest, consists of organic solids called feedstock
mixed in a sludge with water. 2 Id. at 8; see also J.A. 550
(“[The] microbes basically eat the organics, and a by-prod-
uct of that is methane gas.”). Anaerobic digester tanks pro-
vide a place for the microorganisms to digest the feedstock.
J.A. 872–73. Entities that operate these digester tanks
then use the resulting methane to generate electricity
(among other things). See, e.g., J.A. 552.
     Alternative Carbon began operating in 2011. Its busi-
ness generally involved a few basic steps. First, Alterna-
tive Carbon bought feedstock from ethanol production
plants. Next, it paid a trucking company to transport the
feedstock. Along the way, the trucking company added die-
sel fuel to the feedstock. The trucking company then deliv-
ered this feedstock/diesel mixture to entities that operated


    2   These organic solids are also sometimes called sub-
strates. For clarity, and consistent with the Claims Court,
we will use the term “feedstock” throughout this opinion to
describe these organic materials. Alternative Carbon, 137
Fed. Cl. at 8 n.6.
ALTERNATIVE CARBON RESOURCES v. UNITED STATES                  5



anaerobic digestion tanks. 3 The digester operators ulti-
mately fed the mixture to methane-producing microorgan-
isms. Each step is discussed in more detail below.
     When Alternative Carbon purchased feedstock from its
suppliers, the feedstock consisted of organic material that
might otherwise be considered waste. For example, the
process of distilling ethanol produces water and corn solids
(“stillage”) as a by-product. J.A. 1718. This solid stillage
is then further distilled through a centrifuge to separate
liquid (“thin-stillage”) from other solids. Id. Alternative
Carbon paid ethanol producers to acquire this thin-stillage.
Id. In addition to thin-stillage, Alternative Carbon used
other organic materials as feedstock. J.A. 1718–20.
    After purchasing the feedstock, Alternative Carbon
paid a trucking company to mix enough diesel fuel with the
feedstock so that the resulting mixture could qualify as an
alternative fuel mixture under § 6426. Alternative Carbon,
137 Fed. Cl. at 9; see also J.A. 814 (“[Y]ou got to put a
splash of diesel fuel in it, and here’s why . . . it has a splash
of diesel fuel in it before so we can generate tax credits.”).
Alternative Carbon’s expert conceded that adding the die-
sel fuel “did not measurably change the methane produc-
tion” of the microorganisms. J.A. 616; see also J.A. 1026
(“Q. And, in fact, you wouldn’t recommend putting diesel in
an anaerobic digester [tank]; is that right? A. Typically,
no. I wouldn’t recommend it.”).
    Having made the feedstock/diesel mixture, the truck-
ing company delivered the mixture to digester operators.
Alternative Carbon paid a fee to the operators based on
how much feedstock/diesel mixture they accepted.
See, e.g., J.A. 794. In Alternative Carbon’s contract with
the Des Moines Wastewater Reclamation Authority



    3   For clarity, we will refer to these entities collec-
tively as digester operators.
6          ALTERNATIVE CARBON RESOURCES v. UNITED STATES




(“WRA”), this “disposal fee” was “$0.02634 per delivered
gallon” plus applicable taxes. Id. In its contract with
Amana Farms, the “handling fee” was twenty-five dollars
per ton. J.A. 1054. There are no contracts between Alter-
native Carbon and other digester operators in the record.
     Digester operators like WRA and Amana Farms also
paid an annual fixed fee to Alternative Carbon.
See J.A. 795; J.A. 1054. But the fees Alternative Carbon
paid digester operators far surpassed the annual fees it col-
lected from them. Alternative Carbon, 137 Fed. Cl. at 18
(“Throughout 2011, plaintiff received $8,950.00 of income
for the purchase of its alternative fuel mixtures and paid
its customers a total of $1,678,029.07 in ‘disposal fees.’”).
There is also no evidence in the record that the fees paid by
WRA or Amana were based on the value of the feed-
stock/diesel mixture. See, e.g., Oral Arg. at 2:24–40
(“Q. And what do you say the value of the goods transferred
was? A. The value of . . . the goods transferred to the di-
gester companies is not quantified in the record . . . .”),
http://oralarguments.cafc.uscourts.gov/de-
fault.aspx?fl=2018-1948.mp3; J.A. 861 (“This is for their
tax credit stuff. A once a year charge of $950 for us to ‘buy’
product (AD feedstock).”).
    Once the feedstock/diesel mixture was delivered, it was
fed into digester tanks along with other feedstocks.
See, e.g., J.A. 878–79. Some of the resulting methane was
flared, i.e., burned off as excess, and some was used to gen-
erate electricity. Alternative Carbon, 137 Fed. Cl. at 8;
J.A. 1475.
          C. Alternative Carbon’s Tax Planning
    From the outset, Alternative Carbon and its business
plan were designed in view of the alternative fuel mixture
tax credit. For example, James Huyser, one of Alternative
Carbon’s founders, testified:
ALTERNATIVE CARBON RESOURCES v. UNITED STATES                7



    We understood that if the tax credits . . . w[ere] go-
    ing to be approved in 2011, we needed to have a
    vehicle whereby we could have a company that we
    could operate through that would be able to pur-
    chase waste products, transport waste products,
    and sell waste products as fuel for anaerobic digest-
    ers. And so there needed to be some sort of com-
    pany structure in order to do all this and also be
    considered an entity for the tax credits that were a
    part of our business plan.
J.A. 851; see also J.A. 527–28.
    To ensure that Alternative Carbon could obtain the
credits, its founders consulted with a tax attorney named
Greg Sanderson. Initially, Sanderson sent them infor-
mation about energy tax credits and advised them to regis-
ter their company with the IRS. See, e.g., J.A. 528–29.
Partners at Alternative Carbon also reached out to Sand-
erson with specific questions about their business.
    On January 21, 2011, Huyser emailed Sanderson about
an agreement between Alternative Carbon and WRA that
was signed the same day. J.A. 1083; see also J.A. 794. The
agreement stated that WRA would charge a “disposal fee”
for accepting the feedstock/diesel mixture, but it did not
mention any money flowing from WRA to Alternative Car-
bon. J.A. 794. In his email, Huyser asked Sanderson
whether the transaction between Alternative Carbon and
WRA, in which Alternative Carbon paid WRA to accept the
feedstock/diesel mixture, counted as a sale of the mixture
for purposes of obtaining the tax credits. J.A. 1083
(“We are basing [the] ‘sale’ and its consideration on the ser-
vice provided by the WRA in disposing of the ‘non-combus-
tible’ materials.”). Sanderson replied that Alternative
Carbon would have “a better case if you charge the user of
the mixture for the fuel value, and they charge you a dis-
posal fee.” J.A. 1082. But Sanderson added that he “d[id]
not have a full understanding of the economics” of
8          ALTERNATIVE CARBON RESOURCES v. UNITED STATES




Alternative Carbon’s business. Id. For example, Sander-
son asked “[h]ow do you make money from this business if
you pay the digester company to take the liquid” and
“[d]oes this business cash flow without the 50 cent per gal-
lon credit?” Id. He also cautioned that while “[t]wo private
letter rulings [from the IRS] indicate that the IRS may con-
sider the transfer as a ‘sale’ even if you do not receive pay-
ment for the fuel . . . [these private letter rulings] may not
be technically cited as precedent by other taxpayers.” Id.
    In June 2011, Alternative Carbon received a question-
naire from the IRS asking for additional information about
its business. J.A. 1522–33; see also J.A. 399. Huyser
drafted an initial response and then sent it to Sanderson.
J.A. 1522. Sanderson replied with several comments and
questions. For example, Sanderson asked:
    Which credit are you trying to claim: the mixture
    credit for liquid biomass and diesel[] or compressed
    liquified biogas? I do not think you qualify for the
    compressed liquified biogas credit because you are
    not the producer (i.e. owner of the gas and all in-
    gredients). Does the digester company claim a
    credit? If so there may be a problem of double-dip-
    ping.
J.A. 1525 (capitalization altered).
    On July 12, 2011, the IRS issued an advisory letter
stating that alternative fuel mixtures used in anaerobic di-
gester tanks are not “used as a fuel” under § 6426.
See I.R.S. Chief Counsel Advisory, IRS CCA 201133010,
2011 WL 3636293 (July 12, 2011). After this advisory let-
ter issued, Sanderson asked the IRS whether Alternative
Carbon should stop claiming the tax credit for selling an
alternative fuel mixture to digester operators. J.A. 1286.
According to Sanderson, an IRS agent told him that Alter-
native Carbon should continue to claim the credits so long
as its registration was not revoked.         J.A. 1286–87.
ALTERNATIVE CARBON RESOURCES v. UNITED STATES              9



Sanderson therefore told Alternative Carbon that it should
continue to claim the credits. J.A. 401.
    Ultimately, Alternative Carbon claimed $19,773,393 in
alternative fuel mixture credits for 2011. Alternative Car-
bon, 137 Fed. Cl. at 19. On March 12, 2012, however, the
IRS began an initial audit of Alternative Carbon. Id. The
IRS eventually determined that Alternative Carbon was
not entitled to the alternative fuel mixture credits and so
it assessed the full value of the credits along with “exces-
sive claim penalties.” 4 Id. at 19–20.
             D. The Claims Court’s Decision
     Alternative Carbon sent partial payments to the IRS
followed by requests for refunds. Id. at 20. When the IRS
did not respond to these requests, Alternative Carbon filed
suit in the Claims Court. Id. The government counter-
claimed for the full amount of taxes and penalties owed.
Id. at 21.
    After discovery, the parties filed cross motions for sum-
mary judgment. Id. In its motion, the government argued
that Alternative Carbon was not entitled to the alternative
fuel mixture credit because (1) the feedstock/diesel mixture
was not an alternative fuel, (2) the mixture was not sold,
and (3) to the extent it was sold, it was not sold for use as
fuel. The government also argued that (4) Alternative Car-
bon had no reasonable cause for claiming the credits and
thus the assessed penalties were appropriate. The Claims
Court addressed each argument.




    4   The IRS assessed other penalties, but they are not
at issue in this appeal. See Alternative Carbon, 137 Fed.
Cl. at 37.
10         ALTERNATIVE CARBON RESOURCES v. UNITED STATES




               1. Whether the mixture is an
                  alternative fuel mixture
    As noted above, § 6426 defines an alternative fuel to
include liquid fuel derived from biomass. The government
argued below—but does not maintain on appeal—that the
feedstock/diesel mixture was not a “liquid fuel” because it
contained “solid fuel dissolved or suspended in water.”
J.A. 648; see also Alternative Carbon, 137 Fed. Cl. at 23–
24. The Claims Court rejected this argument, however, ex-
plaining that “a mixture comprised of water and dissolved
or suspended solids is clearly a ‘liquid’ in layman’s terms.”
Alternative Carbon, 137 Fed. Cl. at 24. It therefore rea-
soned that fuel dissolved or suspended in water was “liquid
fuel,” too. Id.
             2. Whether the mixture was sold
    Section 6426’s definition of alternative fuel mixture
also requires the mixture to be “sold by the taxpayer.”
26 U.S.C. § 6426(e)(2)(A). The government argued that Al-
ternative Carbon’s feedstock/diesel mixture did not clear
this threshold because Alternative Carbon did not sell the
feedstock/diesel mixture. Instead, the government argued
that Alternative Carbon bought disposal services from
WRA and Amana. The Claims Court agreed.
    With respect to the annual fee Alternative Carbon col-
lected from digester operators, the Claims Court concluded
that the fee “lacked economic substance because those
nominal amounts were collected solely for the purpose of
receiving tax credits.” Alternative Carbon, 137 Fed. Cl.
at 28. To support this view, the Claims Court pointed to
emails from WRA showing that the $950 fee it paid to Al-
ternative Carbon “was intentionally offset by a $950 ad-
ministrative fee that the WRA charged so that the sale
price and fee would be ‘a wash.’” Id. (“[T]he parties in-
tended for there to be no substantive sale price—they
simply engaged in ‘a contrived transaction performing no
economic or business function other than to generate tax
ALTERNATIVE CARBON RESOURCES v. UNITED STATES               11



benefits.’”). This showed that “the ‘sales’ price did not have
an independent business purpose and only served to qual-
ify the transactions as sales for purposes of the alternative
fuel mixture credit.” Id. The Claims Court also empha-
sized that Alternative Carbon determined how much mix-
ture would be transferred, charged a flat fee, and did not
collect or pay sales tax. Id.
    In addition to the annual fee, Alternative Carbon ar-
gued that valuable consideration was exchanged in these
transactions because it provided the feedstock/diesel mix-
ture and various fees in exchange for “being relieved of its
obligation to dispose of the by-products remaining at the
conclusion of the anaerobic digestion process.” Id. at 28–
29 (internal quotation marks omitted). The Claims Court
reasoned, however, that this was “a separate bargain from
plaintiff’s receipt of money in exchange for the alternative
fuel mixtures it delivered.” Id. at 30. Thus, even if this
exchange “was a bona fide transaction,” the purported sale
of the feedstock/diesel mixture was not. Id. The Claims
Court therefore concluded that Alternative Carbon was not
entitled to claim the credits because it did not sell the feed-
stock/diesel mixture. Id. at 31.
     3. Whether the mixture was sold for use as fuel
     In addition to arguing that Alternative Carbon did not
sell the feedstock/diesel mixture, the government also ar-
gued that the mixture was not sold “for use as fuel” because
it is not a “fuel.” Id. at 24–26. The government also argued
that even if some feedstock could be used as a fuel, Alter-
native Carbon had no evidence that its feedstock was used
to produce energy. Id. at 26.
    The Claims Court rejected the government’s first argu-
ment, but it agreed that Alternative Carbon could not
prove that its feedstock was used as a fuel. The Claims
Court thus required Alternative Carbon to show that its
feedstock—among all the other feedstocks input into the
digester tanks—produced methane that was actually used
12          ALTERNATIVE CARBON RESOURCES v. UNITED STATES




to produce energy. Id. Because Alternative Carbon could
not do so, the Claims Court concluded that it was not enti-
tled to the tax credits. Id.
              4. Whether Alternative Carbon
                  should pay penalties
    A taxpayer who wrongly claims the energy credits de-
fined in § 6426 may be assessed additional penalties.
26 U.S.C. § 6675(a). A taxpayer can avoid these penalties
by demonstrating that it had “reasonable cause” to claim
the credits. Id. While “reasonable cause” is not defined in
the statute, the Claims Court looked to other areas of tax
law to conclude that reasonable cause should turn on “‘the
extent of the taxpayer’s effort to assess the taxpayer’s
proper tax liability,’ judged in light of the taxpayer’s ‘expe-
rience, knowledge, and education.’” Alternative Carbon,
137 Fed. Cl. at 31 (quoting Stobie Creek Invs. LLC v. United
States, 608 F.3d 1366, 1381 (Fed. Cir. 2010)).
    Applying this standard, the Claims Court concluded
that Alternative Carbon had no reasonable cause for claim-
ing the credits. Id. at 34, 37. In particular, the Claims
Court emphasized that because Sanderson repeatedly
qualified his advice based on not understanding the eco-
nomics or science behind Alternative Carbon’s business it
was unreasonable for Alternative Carbon to rely on him.
Id. at 34. To the extent it would have been reasonable to
rely on Sanderson, the Claims Court added that Alterna-
tive Carbon also “ignored” Sanderson’s advice. Id.
     Alternative Carbon also argued that it reasonably re-
lied on guidance from IRS agents, IRS private letter rul-
ings, and the IRS’s decision to accept Alternative Carbon’s
initial registration for the credits.      Id. at 32, 35.
The Claims Court, however, concluded that nothing the
IRS did constituted advice that Alternative Carbon could
have reasonably relied on. Id. For example, while Sander-
son spoke with IRS agents about Alternative Carbon’s de-
cision to claim the credits, none of them provided any
ALTERNATIVE CARBON RESOURCES v. UNITED STATES              13



written guidance to Sanderson or Alternative Carbon.
See, e.g., id. at 32–33. As to the private letter rulings, the
Claims Court noted that these rulings “by their own terms”
say they “may not be used or cited as precedent” by other
taxpayers. Id. at 29 n.25.
   Accordingly, the Claims Court granted summary judg-
ment for the government. Appellant Alternative Carbon
timely appealed. We have jurisdiction under 28 U.S.C. §
1295(a)(3).
                       II. DISCUSSION
     Summary judgment should be denied unless, drawing
all justifiable inferences in the non-movant’s favor, “there
is no genuine dispute as to any material fact and the mo-
vant is entitled to judgment as a matter of law.”
Fed. Cl. R. 56(a); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). “We review the Claims Court’s
grant of summary judgment de novo.” Amergen Energy
Co., ex rel. Exelon Generation Co. v. United States, 779 F.3d
1368, 1372 (Fed. Cir. 2015). That means to prevail on ap-
peal, “the non-movant need only show that one or more of
the facts on which the [Claims Court] relied was ‘genuinely
in dispute,’ as that phrase is interpreted in Anderson, and
was material to the judgment.” Amini Innovation Corp. v.
Anthony California, Inc., 439 F.3d 1365, 1368 (Fed. Cir.
2006). Where the non-movant bears the ultimate burden
of proof, however, “[a] nonmoving party’s failure of proof
concerning the existence of an element essential to its case
on which [it] will bear the burden of proof at trial neces-
sarily renders all other facts immaterial and entitles the
moving party to summary judgment as a matter of law.”
Dairyland Power Coop. v. United States, 16 F.3d 1197,
1202 (Fed. Cir. 1994); see also Celotex Corp. v. Catrett, 477
U.S. 317, 325 (1986).
    Alternative Carbon argues on appeal that it properly
claimed the alternative fuel mixture credits and, in the
14          ALTERNATIVE CARBON RESOURCES v. UNITED STATES




alternative, that it at least had a reasonable basis to do so.
We address both arguments below.
               A. Claiming the Tax Credits
    Alternative Carbon bears the ultimate burden of prov-
ing it properly claimed the alternative fuel mixture credits.
WMI Holdings Corp. v. United States, 891 F.3d 1016,
1021–22 (Fed. Cir. 2018). The government can therefore
discharge its burden on summary judgment by establishing
that Alternative Carbon failed to show it is entitled to the
fuel credits as a matter of law. Dairyland, 16 F.3d at 1202.
     Alternative Carbon insists that it is entitled to the
credits because it transferred property, i.e., the disposal fee
and the feedstock/diesel mixture, to customers in exchange
for consideration, “an annual fee and relief from the obliga-
tion to dispose of the [alternative fuel mixture] and waste
created by the [alternative fuel mixture].” Appellant’s Br.
at 32. According to Alternative Carbon, this shows that it
“sold” its alternative fuel mixture “for use as fuel” un-
der § 6426. The government maintains, however, that in
each of these transactions Alternative Carbon was buying
disposal services and not selling alternative fuel mixtures
as required by § 6426. Appellee’s Br. at 30. We agree with
the government.
    As explained above, taxpayers may claim a credit un-
der § 6426(e) for “producing any alternative fuel mixture
for sale or use in a trade or business of the taxpayer.”
26 U.S.C. § 6426(e)(1). An “alternative fuel mixture” is de-
fined as “a mixture of alternative fuel and taxable fuel”
that is either “sold by the taxpayer . . . for use as fuel” or
“used as a fuel by the taxpayer producing such mixture.”
Id. at § 6426(e)(2). And while many of these terms, includ-
ing alternative fuel and taxable fuel, incorporate defini-
tions from within § 6426 or the Internal Revenue Code, the
statute offers no specific definition of what it means for an
alternative fuel mixture to be “sold by the taxpayer.”
ALTERNATIVE CARBON RESOURCES v. UNITED STATES              15



     The IRS generally defines a “sale” as “an agreement
whereby the seller transfers the property (that is, the title
or the substantial incidents of ownership) in goods to the
buyer for a consideration called the price, which may con-
sist of money, services, or other things.” 26 C.F.R. § 48.0-
2(a)(5). The parties agree that this definition applies here.
     Alternative Carbon insists that its transactions with
digester operators were sales because it transferred prop-
erty, i.e., the disposal fee and its feedstock/diesel mixture,
to customers in exchange for consideration, i.e., “an annual
fee and relief from the obligation to dispose of the [alterna-
tive fuel mixture] and waste created by the [alternative
fuel mixture].” Appellant’s Br. at 32. But the only aspect
of this transaction that arguably distinguishes it from a sit-
uation where Alternative Carbon was buying disposal ser-
vices is the annual fee digester operators paid to
Alternative Carbon. And yet, Alternative Carbon offered
no evidence that this fee reflected the price or value of the
feedstock/diesel mixture. Oral Arg. at 2:32–40 (“The value
of the goods transferred to the digester companies is not
quantified in the record . . . .”). Without more, there is no
evidence that the digester operators paid anything that
genuinely can be characterized as consideration in order to
obtain the feedstock/diesel mixture. 5



    5    Alternative Carbon argues that a sale can occur
even if no price is paid by either party to the transaction.
Appellant’s Br. at 42 (citing Basque Station, Inc. v. United
States, 53 F. App’x 829 (9th Cir. 2002)). Not only is Basque
a non-precedential opinion from a different circuit, it is in-
apposite. 53 F. App’x at 831 (noting that the transporter
“received compensation for the portion of fuel Transport re-
tained”). Basque simply says that a buyer/seller relation-
ship may emerge between two parties based on economic
realities even if they are not directly exchanging goods with
each other.       Id. at 830–31 (“Although Basque and
16          ALTERNATIVE CARBON RESOURCES v. UNITED STATES




    Even if this fee might be technically characterized as a
price, or as meaningful consideration, it lacked economic
substance and should be disregarded. Coltec Indus., Inc. v.
United States, 454 F.3d 1340, 1352 (Fed. Cir. 2006) (“[T]he
economic substance doctrine has required disregarding, for
tax purposes, transactions that comply with the literal
terms of the tax code but lack economic reality.”); see also
Feldman v. Comm’r, 779 F.3d 448, 457 (7th Cir. 2015) (dis-
regarding one part of a transaction because it lacked eco-
nomic substance).      This doctrine “ensure[s] that tax
benefits are available only if ‘there is a genuine multiple-
party transaction with economic substance which is com-
pelled or encouraged by business or regulatory realities, is
imbued with tax-independent considerations, and is not
shaped solely by tax-avoidance features that have mean-
ingless labels.’” Salem Fin., Inc. v. United States, 786 F.3d
932, 949 (Fed. Cir. 2015) (quoting Frank Lyon Co. v. United
States, 435 U.S. 561, 583–84 (1978)).
    The economic substance doctrine, once “a judicial tool
for effectuating . . . Congressional purpose,” Coltec, 454
F.3d at 1354, has been codified at 26 U.S.C. § 7701(o):
     (1) In the case of any transaction to which the eco-
     nomic substance doctrine is relevant, such transac-
     tion shall be treated as having economic substance
     only if—
        (A) the transaction changes in a meaningful
        way (apart from Federal income tax effects) the
        taxpayer’s economic position, and




Transport may not have intended to be in a buyer/seller
relationship, their intent does not change the legal sub-
stance of the transaction.”). It does not suggest that an ex-
change without any meaningful consideration is a sale.
ALTERNATIVE CARBON RESOURCES v. UNITED STATES             17



        (B) the taxpayer has a substantial purpose
        (apart from Federal income tax effects) for en-
        tering into such transaction.
26 U.S.C. § 7701(o)(1)(A)–(B).
    Against this backdrop, we agree with the Claims Court
that Alternative Carbon offered no evidence suggesting the
annual fee meaningfully changed its economic position or
had any non-tax purpose whatsoever. See Stobie Creek,
608 F.3d at 1375 (“[W]e review the trial court’s application
of the economic substance doctrine without deference.”).
Indeed, the record compels the opposite conclusion. For ex-
ample, the annual fees Alternative Carbon collected were
nominal—$8,950—compared to the millions it paid in fees.
Alternative Carbon, 137 Fed. Cl. at 28; see also Feldman,
779 F.3d at 457 (“Remove the Shapiro loan from this trans-
action and nothing of consequence changes.”).
     Alternative Carbon’s negotiations with WRA also show
that the annual fee was added for tax purposes. In fact,
Alternative Carbon’s original contract with WRA initially
referenced only a “disposal fee” paid by Alternative Carbon
to WRA. J.A. 794. In an email to Sanderson sent the day
this agreement was signed, Huyser explained that Alter-
native Carbon was relying on this disposal fee to establish
that a sale occurred between Alternative Carbon and WRA.
J.A. 1083. He added that he “did not feel comfortable with
the back and forth payments to the [WRA] and [Alternative
Carbon].” Id. But Sanderson told Huyser that Alternative
Carbon would have a “better case” for claiming the credits
if it “charge[d] the user of the mixture for the fuel value.”
J.A. 1082. After this email, WRA and Alternative Carbon
agreed to add an annual fee to the agreement. J.A. 795;
see also Coltec, 454 F.3d at 1355 (suggesting the economic
substance doctrine would “also apply if the taxpayer’s sole
subjective motivation is tax avoidance”). Even when the
fee was added, Larry Hare—who signed the agreement on
behalf of WRA—characterized it as “[a] once a year charge”
18         ALTERNATIVE CARBON RESOURCES v. UNITED STATES




that was “for [Alternative Carbon’s] tax stuff” and offset by
“admin fees” that WRA charged right back to Alternative
Carbon. J.A. 861 (“We turn around and charge them $950
for admin fees, so it is a wash.”). 6
     Alternative Carbon argues that applying the economic
substance doctrine here punishes it for not being profitable.
But Alternative Carbon offered no evidence it ever “reason-
ably expected” to generate any profit apart from the tax
credits. 26 U.S.C. § 7701(o)(2)(A). At most, Alternative
Carbon argues on appeal that it could have been profitable
without the credits “if the city of Des Moines had converted
its vehicles to compressed natural gas sooner.” Appellant’s
Br. 46. The only source for this attorney argument, how-
ever, is speculation by a partner at Alternative Carbon
about “[p]rojections . . . that the company would be profita-
ble without any tax credits if this alternative use was im-
plemented” because it might spur demand for methane.
J.A. 531. But Alternative Carbon did not identify these
projections—or any other support for this claim—in the
record. Pure speculation that Alternative Carbon might
someday generate a pre-tax profit is not enough to defeat
summary judgment here. See Litton Indus. Prods., Inc. v.
Solid State Sys. Corp., 755 F.2d 158, 164 (Fed. Cir. 1985)
(“[M]ere allegations by declaration or otherwise do not
raise issues of fact needed to defeat a motion for summary



     6   Alternative Carbon argues that this “single email
from a mid-level employee of one of ACR’s fourteen custom-
ers, who appears to possess no personal knowledge of the
entire transaction[]” is either hearsay or irrelevant. Appel-
lant’s Reply at 9. We disagree. The email was sent by the
WRA employee who signed the agreement with Alternative
Carbon and it discusses why the $950 fee was added with
another WRA employee. That discussion is consistent with
emails from Huyser and Sanderson. The email is also not
hearsay in this context.
ALTERNATIVE CARBON RESOURCES v. UNITED STATES             19



judgment.”); Blum v. Comm’r, 737 F.3d 1303, 1312 (10th
Cir. 2013) (“The probability of earning a profit must be rea-
sonable, not a mere possibility.” (citing Stobie Creek, 608
F.3d at 1376)).
     Alternative Carbon also argues that the economic sub-
stance doctrine does not apply in this case. Appellant’s Br.
32 (“Congress specifically intended that alternative energy
tax incentives be excluded from the economic substance
doctrine.”). To support this claim, Alternative Carbon re-
lies on a report by the Joint Committee on Taxation
“cit[ing] alternative energy tax credits, new markets cred-
its, low income housing credits, and rehabilitation credits
as types of tax incentives that may not be disallowed for
lack of pre-tax profits.” Id. at 44–45 (citing Staff of Joint
Comm. on Taxation, 111th Cong., Technical Explanation of
the Revenue Provisions of the “Reconciliation Act of 2010,”
as Amended, in Combination with the “Patient Protection
and Affordable Care Act” at 152 n.344 (Comm. Print 2010)).
This argument is meritless. First, a committee report can-
not overcome clear statutory text. Exxon Mobil Corp. v. Al-
lapattah Servs., Inc., 545 U.S. 546, 568 (2005) (“As we have
repeatedly held, the authoritative statement is the statu-
tory text, not the legislative history or any other extrinsic
material.”). The language on which Alternative Carbon re-
lies, from a footnote in a committee report, also does not
support its argument. The report says that taxpayers
should be allowed to claim credits if they engage in trans-
actions that, “in form and substance,” are “the type of ac-
tivity that the credit was intended to encourage.” Staff of
Joint Comm. on Taxation, 111th Cong., Technical Expla-
nation of the Revenue Provisions of the “Reconciliation Act
of 2010,” as Amended, in Combination with the “Patient
Protection and Affordable Care Act” at 152 n.344 (Comm.
Print 2010)). This falls far short of instructing courts to
ignore the economic substance doctrine just because the
taxpayer is trying to claim an energy tax credit. Cf. Salem,
786 F.3d at 941 (“The economic substance doctrine thus
20         ALTERNATIVE CARBON RESOURCES v. UNITED STATES




applies even to a transaction that is governed by a statute
or regulation that itself contains a ‘substance-over-form’
provision.”).
     Alternative Carbon’s other argument for ignoring the
economic substance doctrine fares no better. According to
Alternative Carbon, § 7701(o) applies only “[i]n the case of
any transaction to which the economic substance doctrine
is relevant.” 26 U.S.C. § 7701(o)(1). Alternative Carbon
insists that this is not such a case because it is claiming
energy credits. But if a taxpayer engages in a transaction
that is otherwise unprofitable in order to collect tax credits
“that situation demands careful review” under the eco-
nomic substance doctrine. Salem, 786 F.3d at 950.
The economic substance doctrine is therefore indisputably
relevant here and nothing in the text of § 7701(o)(1) sug-
gests otherwise. Indeed, the statute declares that “[t]he
determination of whether the economic substance doctrine
is relevant to a transaction shall be made in the same man-
ner as if this subsection had never been enacted.”
26 U.S.C. § 7701(o)(5)(C).
    Alternative Carbon also points to Sacks v. Commis-
sioner, 69 F.3d 982 (9th Cir. 1995). There, the Tax Court
treated a leaseback transaction involving solar water heat-
ers as a sham transaction because the taxpayer’s estimated
pre-tax income was negative. Sacks, 69 F.3d at 990. The
Ninth Circuit reversed, explaining that the “investment
did not become a sham just because its profitability was
based on after-tax instead of pre-tax projections.” Id. at
991. In particular, the Ninth Circuit concluded that the
“[a]bsence of pre-tax profitability does not show whether
the transaction ha[s] economic substance beyond the crea-
tion of tax benefits where Congress has purposely used tax
incentives to change investors’ conduct.” Id. (internal quo-
tation marks and citations omitted). But the taxpayer in
Sacks provided evidence about how he could eventually
make money through his water heater leaseback program.
Id. (“If energy prices rise faster than the price of solar
ALTERNATIVE CARBON RESOURCES v. UNITED STATES               21



water heaters fall, Mr. Sacks stands to make more money.
After 53 months, when the units are still well within
Amcor’s warranty period and their useful life by any meas-
ure, Mr. Sacks owns them free and clear and can negotiate
whatever deal the market will bear.”). Alternative Carbon,
by contrast, did not. Instead, it entered into unprofitable
transactions while charging digester operators a nominal
fee so it could generate tax credits.
    Alternative Carbon’s reliance on Salem provides no
help either. In that case, we acknowledged that “Congress
often provides tax benefits to encourage socially beneficial
activity that would not be pursued absent tax advantages.”
Salem, 786 F.3d at 950. And yet, we also emphasized that
even this activity “demands careful review” if it involves
transactions that are unprofitable absent a tax credit. Id.
This review “requires an inquiry into whether the transac-
tion meaningfully alters the taxpayer’s economic position
(other than with regard to the tax consequences) and
whether the transaction has a bona fide business purpose.”
Id. With respect to Alternative Carbon’s decision to charge
digester operators an annual fee, the answer is clearly no.
As explained above, the annual fee was nominal and there
is no evidence it had “a bona fide business purpose.” Id.
    Alternative Carbon maintains that, even without the
annual fee, it still sold the feedstock/diesel mixture. Ac-
cording to Alternative Carbon, this is so because the mix-
ture was transferred as part of a transaction where it gave
the mixture and a disposal fee to the digester operators in
exchange for getting relief from its obligation to dispose of
the feedstock/diesel mixture and associated waste. Appel-
lant’s Br. 51. We are not convinced. The digester operators
accepted the mixture because they were paid to do so.
It would defy the statute’s obvious meaning to conclude
that Alternative Carbon sold the mixture to these digester
operators by buying disposal services from them.
26 U.S.C. § 6426(e)(2) (“[T]he term ‘alternative fuel mix-
ture’ means a mixture . . . which . . . is sold by the taxpayer
22          ALTERNATIVE CARBON RESOURCES v. UNITED STATES




producing such mixture to any person for use as fuel . . . .”).
Such a transaction is clearly not the sort of transaction that
Congress contemplated in § 6426(e). Cf. Coltec, 454 F.3d
at 1355–56 (“‘[A] taxpayer carr[ies] an unusually heavy
burden when he attempts to demonstrate that Congress in-
tended to give favorable tax treatment to the kind of trans-
action that would never occur absent the motive of tax
avoidance.’” (quoting Rothschild v. United States, 407 F.2d
404, 411 (Ct. Cl. 1969))).
     Alternative Carbon’s contrary argument relies on two
private letter rulings from the IRS in the context of a sim-
ilar tax credit related to alcohol-based fuels. Appellant’s
Br. 49 (citing I.R.S. Priv. Ltr. Rul. 9631012 (Aug. 2, 1996);
I.R.S. Priv. Ltr. Rul. 9229038 (July 17, 1992)). In both of
these cases, the taxpayer transferred a mixture that in-
cluded alcohol to entities that “dispose[d] of the [mixture]
by using it as a fuel.” I.R.S. Priv. Ltr. Rul. 9229038 (July
17, 1992). The IRS concluded that this transfer was a
“sale” because the taxpayer—who transferred the mixture
for disposal—was “relieved from the duty associated with
having to dispose of the [mixture].” Id. But these private
letter rulings have no precedential weight. See, e.g., id.
(“This ruling is directed only to the taxpayer who requested
it. Section 6110([k])(3) of the Code provides that it may not
be used or cited as precedent.”). The rulings also arose in
a completely different context where the taxpayer had a le-
gitimate non-tax purpose for acquiring the waste and for
paying someone to take it. Id.
    Ultimately, Alternative Carbon did not offer evidence
raising a genuine dispute about whether it sold the feed-
stock/diesel mixture to the digester operators. Accordingly,
ALTERNATIVE CARBON RESOURCES v. UNITED STATES             23



we agree with the Claims Court that the government was
entitled to summary judgment. 7
                       B. Penalties
    A taxpayer who wrongly claims a credit under § 6426
may be liable for up to 200% of the “excessive amount”
claimed unless they show that “the claim for such excessive
amount is due to reasonable cause.” 26 U.S.C. § 6675(a).
Alternative Carbon bears the ultimate burden of showing
that it had reasonable cause for claiming the alternative
fuel mixture credits. Stobie Creek, 608 F.3d at 1381.
“[W]hether the elements that constitute reasonable cause
are present in a given situation is a question of fact, but
what elements must be present to constitute reasonable
cause is a question of law.” Russian Recovery Fund Ltd. v.
United States, 851 F.3d 1253, 1259 (Fed. Cir. 2017) (quot-
ing United States v. Boyle, 469 U.S. 241, 249 n.8 (1985)).
    Section 6675 does not define “reasonable cause,” but
Alternative Carbon argues that § 6664’s general definition
of reasonable cause in the context of underpayments pro-
vides a useful starting point. Cf. Estate of Liftin v. United
States, 754 F.3d 975, 980 (Fed. Cir. 2014) (“In applying the
‘reasonable cause’ provision of section 6651(a)(1) to the
claimed reliance on legal advice here, we think it appropri-
ate to borrow the relevant component of the IRS’s formal
regulatory implementation of ‘reasonable cause’ in the
closely analogous setting of section 6664(c)(1).”). We agree.
    We have emphasized that determining whether rea-
sonable cause exists depends on “all the pertinent facts and
circumstances.” Stobie Creek, 608 F.3d at 1381 (citing
Treas. Reg. § 1.6664–4(b)(1)).           But “[t]he most


    7    Because we agree that Alternative Carbon did not
sell the feedstock/diesel mixture, we do not reach questions
of whether, assuming a sale occurred, the sale was “for use
as fuel.” See Oral Arg. 1:22–31.
24          ALTERNATIVE CARBON RESOURCES v. UNITED STATES




important . . . factor[] is ‘the extent of the taxpayer’s effort
to assess the taxpayer’s proper tax liability,’ judged in light
of the taxpayer’s ‘experience, knowledge, and education.’”
Id. (quoting Treas. Reg. § 1.6664–4(b)(1)). When this effort
includes obtaining advice from a tax professional, we have
said that expert advice can only provide reasonable cause
if it meets several requirements. Id. First, the advice itself
must be “based on all pertinent facts and circumstances
and the law as it relates to those facts and circumstances.”
Id. (internal quotation marks omitted). “Second, the advice
relied upon must not be based on any ‘unreasonable factual
or legal assumptions,’” including unreasonable representa-
tions by third parties. Id. “Third, the taxpayer’s reliance
on the advice must itself be objectively reasonable.” Id.
(emphasis in original). In particular, it is not reasonable
for a taxpayer to rely on advice if the taxpayer “knew or
should have known that the transaction was ‘too good to be
true,’ based on all the circumstances, including the tax-
payer’s education, sophistication, business experience, and
purposes for entering into the transaction.” Id. at 1382.
    Alternative Carbon argues that “Sanderson [reasona-
bly] determined that . . . the sale to a digester customer is
a sale for use as a fuel, regardless of who pays whom.” Ap-
pellant’s Br. 55. And, according to Alternative Carbon, he
also reasonably advised “that the then-newly enacted eco-
nomic substance doctrine would not bar [Alternative Car-
bon] from claiming the credits based on the legislative
history of section 7701(o).” Id. (citing J.A. 398).
    Setting aside the question of whether Sanderson’s ad-
vice included any unreasonable assumptions, Alternative
Carbon cannot show that its reliance on his advice was rea-
sonable. As the Claims Court correctly recognized, Sand-
erson repeatedly hedged his advice and demonstrated an
incomplete understanding of Alternative Carbon’s busi-
ness.    See Alternative Carbon, 137 Fed. Cl. at 34
(“[P]laintiff’s primary adviser could not unambiguously en-
dorse plaintiff’s business model as late as July 2011—after
ALTERNATIVE CARBON RESOURCES v. UNITED STATES             25



plaintiff had already claimed millions in alternative fuel
mixture credits but had yet to claim millions more.”);
see also J.A. 1082 (Sanderson stating he “d[id] not have a
full understanding of the economics” of Alternative Car-
bon’s business); J.A. 1525 (asking which credit Alternative
Carbon was trying to claim months after it began operat-
ing); see also J.A. 1311 (admitting he “didn’t know who [Al-
ternative          Carbon’s]        customers         were”).
Sanderson’s advice also depended on private letter rulings
that he told Alternative Carbon could not be relied on as
precedent. J.A. 1082. In light of these undisputed facts,
and the record as a whole, we agree with the Claims Court
that Alternative Carbon cannot establish that it had rea-
sonable cause to claim the credits based on Sanderson’s ad-
vice or otherwise. 8 Alternative Carbon, 137 Fed. Cl. at 32–
34; see also Russian Recovery Fund, 851 F.3d at 1259
(“[W]hat elements must be present to constitute reasonable
cause is a question of law.”); Stobie Creek, 608 F.3d at 1381
(noting that the reasonable cause defense under § 6664 is
“a narrow defense”).




    8   Before the Claims Court, Alternative Carbon also
argued that it relied on advice from other tax professionals.
But the Claims Court concluded that their advice was cu-
mulative of Sanderson’s. See, e.g., Alternative Carbon, 137
Fed. Cl. at 33 (“Mr. Lewis, by his own admission, provided
no independent advice to plaintiff regarding sales, there
was no such advice on which plaintiff could reasonably
rely. The advice from Mr. Lewis was merely cumulative to
the advice from Mr. Sanderson.”). Alternative Carbon does
not appear to challenge this conclusion on appeal. To the
extent it intends to do so, moreover, we agree with the
Claims Court. Likewise, we agree with the Claims Court
that the IRS did not furnish any advice upon which Alter-
native Carbon could have reasonably relied. Id. at 32–33.
26          ALTERNATIVE CARBON RESOURCES v. UNITED STATES




     To the extent it might have been reasonable to rely on
Sanderson’s advice, moreover, Alternative Carbon cannot
show that it followed his advice. In particular, Sanderson
advised Alternative Carbon to charge “the user of the mix-
ture for the fuel value.” J.A. 1082. But Alternative Carbon
offered no evidence it did so. Alternative Carbon, 137 Fed.
Cl. at 33 (“[P]laintiff ignored Mr. Sanderson’s advice to
charge its customers for the fuel value when it instead
charged its customers a flat fee for an undefined amount of
its alternative fuel mixtures.”); Oral Arg. at 2:24–40.
    Finally, Alternative Carbon’s partners should have rec-
ognized that receiving millions of dollars in tax credits for
transferring feedstock from one entity to another—while
mixing in a meaningless amount of diesel along the way—
was “too good to be true.” Salem, 786 F.3d at 960 (“[C]laim-
ing nearly $500 million in foreign tax credits by subjecting
income to economically meaningless activities was ‘too
good to be true.’”). This is yet another reason why Alterna-
tive Carbon cannot establish reasonable cause for claiming
the credits. Stobie Creek, 608 F.3d at 1382.
     For these reasons, we agree with the Claims Court that
Alternative Carbon cannot show it had reasonable cause
for claiming the alternative fuel mixture credits.
                     III. CONCLUSION
    We have considered the parties’ remaining arguments
and find them unpersuasive. Alternative Carbon cannot
show that it was entitled to claim the alternative fuel mix-
ture credits under § 6426 nor can it show that it had rea-
sonable cause to do so. Accordingly, the Claims Court
properly entered summary judgment in favor of the govern-
ment. We therefore affirm.
                       AFFIRMED
                           COSTS
     No costs.
