SCHLUMBERGER TECHNOLOGY CORPORATION AND SUBSIDIARIES, Plaintiff, v. The UNITED STATES, Defendant., United States Court of Federal Claims., 55 Fed.Cl. 203, No. 98-197T., January 31, 2003

SCHLUMBERGER TECHNOLOGY CORPORATION AND SUBSIDIARIES, Plaintiff, v. The UNITED STATES, Defendant.

United States Court of Federal Claims.

55 Fed.Cl. 203

No. 98-197T.

January 31, 2003.

Joseph M. Persinger, New York City, for plaintiff. Daniel L. Penner, Fort Worth, TX, of counsel.

Elizabeth D. Seward, with whom were Ei╜leen J. O'Connor, Assistant Attorney Gener╜al, and Mildred L. Seidman, Chief, Court of Federal Claims Section, Tax Division, United States Department of Justice, Washington, DC, for defendant. William K. Drew, of counsel.

OPINION

HEWITT, Judge.

Plaintiffs (collectively, Schlumberger or plaintiff) in this action seek recovery of taxes paid on diesel fuel by Schlumberger Technol╜ogy Company and Subsidiaries and its for╜mer subsidiary, Dowell Schlumberger, Inc. (Dowell) for tax years 1991-94, plus allowable interest. Complaint ╤ 1. Plaintiff filed its Complaint on March 24, 1998, seeking recov╜ery on taxes paid on diesel fuel consumed by a total of 1010 vehicles. Complaint passim ; Preliminary Joint Stipulation of Facts (Jt.Stip.) ╤ 11. Defendant has filed a coun╜terclaim seeking recovery of refunds issued in 1997 for tax years 1992 and 1993. Jt. Stip. ╤ 9.

Before the court are the parties' cross-motions for partial summary judgment for the taxes paid on diesel fuel consumed by 530 of the 1010 vehicles. ¹ Jt. Stip. ╤ 13; Motion of the United States for Partial Summary Judgment and Brief in Support Thereof (Def.'s Mot.) at 5; Reply in Support of Plain╜tiffs Cross Motion for Partial Summary Judgment (Pl.'s Reply) at 3-4. The motion has been fully briefed and argued.

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^1. Plaintiffs original cross-motion for partial sum╜mary judgment included 768 vehicles. Opposi╜tion of Schlumberger Technology Corporation to Motion of United States for Summary Judgment and Cross Motion for Summary Judgment and Brief in Support Thereof (Pl.'s Opp.) at 8. Defen╜dant moved to strike those issues beyond the parties' Joint Stipulation and, on August 30, 2002, the court granted that motion, limiting the summary judgment briefing to the 530 vehicles discussed in this opinion. See Order of August 30, 2002. In a prior opinion on defendant's motion for partial summary judgment the court held that the so-called "one claim" rule con╜tained in I.R.C. ╖ 6427(i)(1) did not bar plain╜tiff's claim for a credit under I.R.C. ╖ 34 for diesel fuel taxes paid. Schlumberger Tech. Corp. v. United States, 47 Fed.Cl. 298, 300 (2000).

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The diesel fuel excise tax is imposed on "diesel-powered highway vehicle[s]" by ╖ 4041(a)(1) of the Internal Revenue Code. 26 U.S.C. ╖ 4041(a)(1) (1994). Treasury reg╜ulations provide a definition of "highway ve╜hicle[s]," and several exceptions to the tax. Treas. Reg. ╖ 48.4041-8(b) (1986). The two exceptions at issue here are those for "spe╜cially designed mobile machinery for non╜transportation functions," Treas. Reg. ╖ 48.4041-8(b)(2)(i), and for "vehicles special╜ly designed for off-highway transportation." Treas. Reg. ╖ 48.4041-8(b)(2)(ii).

Plaintiff argues that its vehicles are not "highway vehicles" under the Code, and therefore it should not be subject to taxation for the diesel fuel consumed by those vehi╜cles. Opposition of Schlumberger Technolo╜gy Corporation to Motion of United States for Summary Judgment and Cross Motion for Summary Judgment and Brief in Support Thereof (Pl.'s Opp.) at 20-46. Specifically, plaintiff argues that its vehicles meet all three prongs of the mobile machinery excep╜tion to "highway vehicle." Id. at 25-44. Ad╜ditionally, plaintiff argues its sand dump trucks and conical cement transport trucks are exempt under the off-highway use excep╜tion. Pl.'s Reply at 24-26. Finally, plaintiff argues that defendant has treated substan╜tially similarly situated taxpayers who have similar mobile equipment differently, causing plaintiff to be put at a competitive disadvan╜tage. Pl.'s Opp. at 47-49.

Defendant argues that plaintiffs vehicles meet neither exception to the taxes on diesel fuel consumed by highway vehicles. Defen╜dant argues that plaintiffs' tractors, sand dump trucks, conical cement transport trucks, tank erector trucks, nitrogen pumper trucks, and various flatbed crane trucks are highway vehicles because they are designed to transport cargo over public roads to well sites. Def.'s Mot. at 12. Because the vehi╜cles are designed to transport cargo over the public highways, defendant contends that those vehicles do not satisfy the mobile ma╜chinery exception to "highway vehicle." Id. at 13-23. Defendant also argues that the sand dump trucks and conical cement trans╜port trucks do not satisfy the off-highway transportation exception to "highway vehicle" because they are not specially designed for the primary function of transportation of a load off-highway, and any special off-highway design does not substantially impair their use of the public roads. Id. at 23-30. Defendant also denies that its treatment of plaintiff in comparison to defendant's treatment of other taxpayers supports any claim for relief. Re╜ply of the United States in Support of its Motion for Partial Summary Judgment and in Opposition to Plaintiffs Cross-Motion for Summary Judgment (Def:'s Reply) at 23-29.

For the following reasons, defendant's Mo╜tion for Partial Summary Judgment is GRANTED, and plaintiffs Cross-Motion for Partial Summary Judgment is DENIED.

I. Background ²

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^2. Many of the facts underlying this dispute have already been addressed in the court's prior opinion, and are not repeated here. See Schlumber╜ger Tech. Corp., 47 Fed.Cl. at 298-300.

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Plaintiff and its former subsidiary provide specialty services at well sites in the oil and gas exploration industry, using a fleet of diesel-powered vehicles. Jt. Stip. ╤ 1; De╜fendant's Proposed Findings of Uncontroverted Fact (DPFUF) ╤ 1. ³ At issue here are 530 vehicles, grouped in the ten catego╜ries below:

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^3. Facts relied on in this opinion and cited to only one of the parties' Proposed Findings of Uncon╜troverted Fact or other filings do not appear to be in dispute.

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Jt. Stip. ╤ 13. No special permits were re╜quired for any of the vehicles to operate on public roads, and all conformed to the appli╜cable federal and state laws regarding height, weight, length, and width. Id. at ╤ 19. Generally, 80% of the mileage traveled by the vehicles was on public roads, with the remaining 20% on private roads, within a 200-mile radius of their home base. DPFUF ╤ 13; Plaintiff's Proposed Findings of Uncon╜troverted Fact (PPFUF) ╤ 15.

All vehicles have been specially modified for plaintiff. Work-performing equipment is bolted or welded to the chassis of the trucks and tractors, Jt. Stip. ╤ 14, and the chassis themselves have been modified as well. Ac╜cording to plaintiff, each truck or tractor chassis is ordered with most of the following specifications:

(1) Full length inverted "L", or double "C", channel frame reinforcement;

(2) Heavy duty spoke wheels;

(3) Front tow hooks;

(4) Low rear end gear ratio;

(5) Walking beam rear suspension on most units;

(6) Front frame extension for hydraulic pumps;

(7) Four wheel or all wheel drive on some units;

(8) Larger capacity straight I beam front axle than would be commonly found on th[e same] size chassis;

(9) Engine horse power 100 hp less than commonly found on th[e same] size chassis;

(10) Very specific CF (rear of cab to end frame) AF (center of rear axle or bogie to end of frame) dimensions which would not be suitable for dump truck or maximum payload application;

(11) Specific locations of battery boxes, air tanks, and fuel tanks;

(12) Special operating programs in engine computers for remote controls, and special programs in automatic transmission for re╜mote controls in newer units, or for older units, special modifications to mechanical remote controls;

(13) Many chassis ordered with special transfer cases, 0 degree engine mounting angle, requiring different mounting brack╜ets, fan shrouds, dip stick, exhaust system, air intake system, transmission rear mount, and drive line system;

(14) Heavy duty front spring brackets;

(15) Additional parking brake chambers;

(16) Many chassis ordered with larger air tanks [than commonly found on the same size chassis];

(17) Larger non-standard fuel tanks;

(18) Channel style rim spacers;

(19) Inner reinforcement at bogie area;

(20) Duplex front tires, and special on-off highway rear tires;

(21) Dual mode transmissions, and varia╜ble speed engine governors;

(22) Heavy duty U joints and drive lines;

(23) Special front axle location;

(24) One or two extra rear lift axles;

(25) Pintle hook on certain body load chas╜sis;

(26) Low mount stationary fifth wheel on certain tractor chassis;

(27) Longer than normal wheelbase; and

(29) Special automatic transmission.

Pl.'s Opp. at 13-15.

The equipment installer then further modi╜fies the chassis of the vehicle before install╜ing the operating equipment by installing the following:

(1) Reinforced sub frames consisting of a box-like structure with longitudinal cross members and certain portions of the hy╜draulic system used to operate the equip╜ment built inside .... The subframes serve as the bases on which the equipment is mounted;

(2) Outriggers in a number of cases are required for stabilizing the unit when equipment is in operation . . . .

(3) Winch, where required, attached to the chassis frame, to the rear of the cab, by bolting and/or welding;

(4) Heavy duty power take off or transfer case in most cases which operate the equipment;

(5) Heavy duty front and/or rear bumpers in most cases. Such bumpers operate as front or rear frame cross members;

(6) Rear cross member (not necessary where heavy duty rear bumper is install╜ed);

(7) Dust shields (on brakes to prevent en╜try of dust and debris);

(8) Remote engine throttle controls;

(9) Hydraulic system for operation of equipment;

(10) Compression plates (installed between subframe and frame);

(11) Barstock leveling of frame;

(12) Headache rack on many units .... and

(13) Various mounting brackets.

Id. at 15-16. These modifications result in an asymmetric configuration so that a flat surface could not be put on top of the chassis without additional modifications to level the chassis. Id. at 16.

Tractors with a winch, crane, wet kit, blow╜er, or compressor are all highway-rated trac╜tors manufactured by Peterbilt, primarily models 362 and 378. Def.'s Mot. at 6; Pl.'s Reply at 6. The tractors are capable of trans╜porting a load at a speed of 65 miles per hour. Def.'s Mot. at 6. Tractors with winch╜es have a heavy duty winch permanently mounted by subframe to the rear of the cab, and are primarily used to transport and posi╜tion sand or frac fluid bins at the well site. Pl.'s Reply at 6. Tractors with cranes are primarily used to maneuver heavy compo╜nents such as connecting pipe and fittings into place. Id. Tractors with wet kits have a heavy duty hydraulic pump and connections permanently mounted to the rear of the cab. Id. The wet kit on the tractors, driven by the tractor's road engine, is used to start a large diesel engine on the trailer. Id. Tractors with a blower or compressor have a perma╜nently mounted blower or compressor at╜tached to the tractor frame at the rear of the cab and are generally used with cement transport trailers to power the discharge of a load at the job site. Id. All t ractors are coupled to trailers through the use of a fifth wheel. Id. at 6-7.

Sand dump trucks consist of covered two╜or three-compartment sand bodies perma╜nently mounted on a Peterbilt Model 357 highway-rated truck chassis. Def.'s Mot. at 7; Pl.'s Reply at 5. The truck is capable of transporting a load at a speed of 55 miles per hour. DeUs Mot. at 7. The load is dis╜charged at the job site by raising the forward end and gravity feeding the rear discharge device, allowing different grades of sand to be mixed at the well site. Pl.'s Reply at 5.

Conical cement transport trucks consist of two cone cement tanks permanently mounted on a Peterbilt Model 357 highway-rated truck chassis. Def.'s Mot. at 7; Pl.'s Reply at 5. The truck is capable of traveling at a speed of 55 miles per hour. Def.'s Mot. at 7. The tanks are discharged at the job site by use of a compressor or blower permanently attached to and powered by the road engine of the chassis. Pl.'s Reply at 5-6.

Tank erector trucks consist of tank erector equipment mounted on a Peterbilt Model 357 highway rated truck chassis. Def.'s Mot. at 8; Pl.'s Reply at 8. Plaintiff specifies a speed limit of 65 miles per hour for these trucks. Def's Mot. at 8. The field storage bin on the trucks travels horizontally to the job site empty, then is picked up by the equipment on the vehicle and properly positioned to be filled with bulk cement. Pl.'s Reply at 8.

Nitrogen pumper trucks consist of a liquid nitrogen storage tank and pumping equip╜ment mounted on a Peterbilt Model 362 high╜way-rated truck chassis. Def.'s Mot. at 8; Pl.'s Reply at 4. Highway-rated tires are used on the truck. Def's Mot. at 8; DPFUF ╤ 21. Plaintiff specifies a speed limit of 65 miles per hour for the truck. Def.'s Mot. at 8. For many jobs, the amount of nitrogen car╜ried by the truck is insufficient and must be supplemented by a tanker trailer. Pl.'s Re╜ply at 4-5.

Crane or iron trucks with or without tank consist of a flatbed body and crane perma╜nently mounted on a Peterbilt Model 357 highway-rated truck chassis. DeVs Mot. at 9; Pl.'s Reply at 7. Plaintiff specifies a speed limit of 65 miles per hour for these trucks. Def.'s Mot. at 9. Some of these trucks have pipe racks to carry connecting pipe and fit╜tings to be used at the job site or tanks to carry well stimulation fluids to be used at the job site. Pl.'s Reply at 7.

Stimulation utility trucks consist of a flat╜bed body and crane permanently mounted on a Peterbilt Model 357 highway-rated truck chassis. Def.'s Mot. at 9; Pl.'s Reply at 7. Plaintiff specifies a speed limit of 65 miles per hour for these trucks. Def.'s Mot. at 9. None of the equipment, including the crane, can be used when the truck is in motion. Pl.'s Reply at 7. Some of these trucks have pipe racks to carry connecting pipes and fittings to be used at the job site or tanks to carry well stimulation fluids to be used at the site. Id.

II. Discussion

A. Summary Judgment

Summary judgment is warranted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rules of the United States Court of Federal Claims (RCFC) 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact that might significantly affect the outcome of the litigation is materi╜al. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Disputes over facts that are not out╜come determinative will not preclude the en╜try of summary judgment. Id . at 247-48, 106 S.Ct. 2505.

The party moving for summary judgment bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If the moving party demonstrates an absence of a genuine issue of material fact, the bur╜den then shifts to the non-moving party to show that a genuine issue exists. Sweats Fashions, Inc. v. Pannill Knitting Co., 833 F.2d 1560, 1563 (Fed.Cir.1987). The movant is also entitled to summary judgment if the non-movant fails to make a showing sufficient to establish an element of its case on which it will bear the burden of proof at trial. Celo╜tex, 477 U.S. at 322-23, 106 S.Ct. 2548. The court must resolve any doubts about factual issues in favor of the party opposing sum╜mary judgment. Litton Indus. Prods., Inc. v. Solid State Sys. Corp., 755 F.2d 158, 163 (Fed.Cir.1985), to whom the benefits of all favorable inferences and presumptions run. H.F. Allen Orchards v. United States, 749 F.2d 1571, 1574 (Fed.Cir.1984), cert. denied, 474 U.S. 818, 106 S.Ct. 64, 88 L.Ed.2d 52 (1985). When the case is before the court on cross-motions for summary judgment, each motion is evaluated under the same standard. Cubic Defense Sys., Inc. v. United States, 45 Fed.Cl. 450, 457 (1999).

B. Highway Vehicle Excise Tax

Section 4041 imposes a tax on diesel fuel "sold by any person to an owner, lessee, or other operator of a diesel-powered highway vehicle . . . for use as a fuel in such vehicle . . . [, or] used by any person as a fuel in a diesel-powered highway vehicle ...." 26 U.S.C. ╖ 4041(a)(1). Treasury regulations further define "highway vehicle" as:

[A]ny self-propelled vehicle, or any trailer or semi-trailer, designed to perform a function of transporting a load over high╜ways, whether or not also designed to per╜form other functions, but does not include a vehicle described in paragraph (b)(2) of this section. For purposes of this defini╜tion, a vehicle consists of a chassis, or a chassis and a body if the vehicle has a body, but does not include the vehicle's load. Therefore, in determining whether a vehicle is a "highway vehicle", it is immate╜rial that the vehicle is designed to perform a highway transportation function for only a particular kind of load, . . . except to the extent otherwise provided in paragraph (b)(2)(i) of this section, machinery or equip╜ment specially designed to perform some off-highway task unrelated to highway transportation . . . . For purposes of para╜graph (b) of this section, the term "trans╜port" includes the term "tow".

Treas. Reg. ╖ 48.4041-8(b). There are two exceptions to the definition of "highway vehi╜cle." The first is the "mobile machinery" exception, Treas. Reg. ╖ 48.4041-8(b)(2)(i), and second the "off-highway transportation" exception. Treas. Reg. ╖ 48.4041-8(b)(2)(ii).

The parties' dispute centers on whether plaintiffs vehicles fall within one of the ex╜ceptions to the definition of highway vehicle. See Def.'s Mot. at 9; Pl.'s Opp. at 20. There╜fore, the court turns to those two issues.

1. Mobile Machinery Exception

The mobile machinery exception is a three-part, conjunctive test. The regulation appli╜cable to the case was adopted in 1977 and significantly altered the prior test. See, e.g., W. Co. of N. Am. v. United States (Western Co. ), 699 F2d 264, 267-88 (5th Cir.1983) (Prior test was whether vehicles were "pri╜marily designed" or "predominantly adopted" for use as nonhighway vehicles). All three parts of the test must be satisfied for the exception to apply. ⁴

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^4. "A self-propelled vehicle, or trailer or semi-trailer, is not a highway vehicle if it (A) consists of a chassis to which there has been permanently mounted (by welding, bolting, riveting, or other means) machinery or equipment to perform a construction, manufacturing, processing, farm╜ing, mining, drilling, timbering, or other opera╜tion similar to any one of the foregoing enumer╜ated operations if the operation of the machinery or equipment is unrelated to transportation on or off the public highways, (B) the chassis has been specially designed to serve only as a mobile carriage and mount (and a power source, where applicable) for the particular machinery or equipment involved, whether or not such ma╜chinery or equipment is in operation, and (C) by reason of such special design, such chassis could not, without substantial structural modification, be used as a component of a vehicle designed to perform a function of transporting any load oth╜er than that particular machinery or equipment or similar machinery or equipment requiring such a specially designed chassis."

Treas. Reg. 48.4041-8(b)(2)(i).

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The parties agree that part (A) of the mobile machinery exception is met if the equipment at issue is permanently mounted on the chassis of the vehicle and if its opera╜tion is unrelated to transportation. Def.'s Mot. at 15; Pl.'s Opp. at 26. Part (A) of the regulation provides, "A self-propelled vehicle . . . is not a highway vehicle if it (A) consists of a chassis to which there has been perma╜nently mounted (by welding, bolting, riveting, or other means) machinery or equipment to perform a construction, manufacturing, pro╜cessing, farming, mining, drilling, timbering, or other operation similar to any one of the foregoing enumerated operations if the oper╜ation of the machinery or equipment is unre╜lated to transportation on or off the public highways ...." Treas. Reg. ╖ 48.4041-8(b)(2)(i) (emphasis added).

The parties also agree that loading or un╜loading cargo is not "unrelated to transporta╜tion." Transcript of November 19, 2002 Oral Argument (Tr.) at 13-14, 45. Loading and unloading cargo is specifically addressed in Treas. Reg. ╖ 48.4061(a)-1(a)(3)(i), which provides:

Examples of the type of machinery or equipment that contribute to the highway transportation function of a chassis or body are the following: loading and un╜loading equipment; towing winches; and all other machinery or equipment contrib╜uting either to the maintenance or safety of the vehicle, the preservation of cargo (other than refrigeration units), or the comfort or convenience of the driver or passengers.

Treas. Reg. ╖ 48.4061(a)-1(a)(3)(i) (cited in Def.'s Mot. at 16-17).

Notwithstanding their agreement that loading and unloading cargo is not unrelated to transportation and despite the explanation contained in Treas. Reg. ╖ 48.4061(a)-1(a)(3)(i), the parties dispute the meaning of the phrase "unrelated to transportation." Defendant contends that the equipment meets the part (A) test if it has no relation to functions related to transportation-such as loading or unloading cargo. See Def.'s Mot. at 16-17. Plaintiff argues that the test is met if the vehicles are "designed with the primary emphasis of efficient operation of the machinery at the well site, and getting the machinery to these sites in extremely difficult and rough conditions." Pl.'s Opp. at 26. Therefore, plaintiff argues that any load╜ing and unloading such equipment may do, if not the primary function, should not defeat plaintiffs satisfaction of part (A) of the test. See id.

The court's task is to interpret the plain language of the regulation. The canons of statutory interpretation require the court to consider first the plain language of the stat╜ute and any binding authority interpreting the language. See 2A Norman J. Singer, Sutherland Statutory Construction ╖ 46: 01, at 113-129 (6th ed.2000); Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980) ("[T]he starting point for interpreting a statute is the language of the statute it╜self.").

Plaintiff has not pointed to any binding authority that would require the court to depart from a plain language interpretation as to part (A) of the exception. See id. Therefore, the court considers the text of the regulation itself. The text says simply that the mobile machinery must be "unrelated to transportation." Treas. Reg. ╖ 48.4041╜8(b)(2)(i). "Related" is commonly defined as "[b]eing connected; associated." American Heritage Dictionary 1473 (4th ed.2000). The requirement that something be "unrelated" would therefore appear to mean "without a connection" or "not connected." Neither party has cited any binding authority inter╜preting the phrase "unrelated to transporta╜tion" in the part (A) exception that accords with the court's view of the plain meaning of the phrase.

A revenue ruling did find that certain cranes met the part (A) test notwithstanding that cranes can be used in loading and un╜loading cargo. See Rev. Rul. 81-71, 1981-1 C.B. 496, 1981 WL 166106 (1981). ⁵ The court finds this revenue ruling to be unpersuasive, however. The revenue ruling explicitly states that the cranes in issue "provides ac╜cess generally to construction areas that would otherwise require scaffolding and rig╜ging . . . [and] may also be used for utility work, firefighting, rescue operations, or any╜where an aerial platform is needed." Id. These cranes were highly specialized and designed with a purpose wholly unrelated to loading and unloading, and therefore satis╜fied the part (A) test. Revenue Ruling 81-71 does not bear on the court's analysis of the facts before it.

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^5. Revenue Rulings and General Counsel Memo╜randa are entitled to some deference because these are the Internal Revenue Service's inter╜pretation of its own regulations. Spang Indus., Inc. v. United States, 791 F.2d 906, 913 (Fed.Cir. 1986) (Revenue Rulings); Am. Express Co. v. United States, 262 F.3d 1376, 1384 (Fed.Cir. 2001) (General Counsel Memoranda). These in╜terpretations do not have the force of law, how╜ever, because they have not been subject to no╜tice and comment, and therefore are "beyond the Chevron pale." Vons Cos. v. United States, 51 Fed.Cl. 1, 8 n. 5 (2001) (quoting United States v. Mead Corp., 533 U.S. 218, 121 S.Ct. 2164, 2175, 150 L.Ed.2d 292 (2001)). Thus, these interpreta╜tions only have the "power to persuade." Id. (citing Christensen v. Harris County, 529 U.S. 576, 587, 120 S.Ct. 1655, 146 LEd.2d 621 (2000)). By comparison, private letter rulings and technical advice memorandum "may not be used or cited as precedent." 26 U.S.C. ╖ 6110(k)(3). This court has previously stated that "the plain language of [section 6110(k)(3) ] clearly precludes a court from giving [private letter rulings and technical advice memorandum] any precedential weight." Vons, 51 Fed. Cl. at 10 n. 7. Private letter rulings and technical ad╜vice memoranda may be used in certain limited circumstances to show that the Commissioner abused his discretion. See Int'l Bus. Machs. Corp. v. United States, 170 Ct.Cl. 357, 343 F.2d 914, 924 (1965); Vons, 51 Fed. Cl. at 10 (Those limited circumstances involve situations where "two or more taxpayers in direct economic com╜petition have each applied for a ruling and only one has received a favorable ruling; and . . . the taxpayer denied the favorable ruling is arguing that the Commissioner abused his discretion un╜der section 7805(b) by failing to apply a new legal position only prospectively.").

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The court is not aware of any basis on which the phrase "unrelated to transporta╜tion" could be read to mean "not primarily related to transportation," as plaintiff urges. Pl.'s Opp. at 26. The regulation requires that the equipment permanently mounted on the chassis be equipment "unrelated" to transportation. In particular, a vehicle with permanently mounted equipment used in loading and unloading cargo does not meet the part (A) test.

The parties also disagree on the scope of part (B) of the mobile machinery exception. Part (B) provides, "[A self-propelled vehicle ... is not a highway vehicle if] (B) the chassis has been specially designed to serve only as a mobile carriage and mount (and power source, where applicable) for the par╜ticular machinery or equipment involved, whether or not such machinery or equipment is in operation . . . ." Treas. Reg. ╖ 48.4041-8(b)(2)(i) (emphasis added). Defendant ar╜gues that "a vehicle's chassis must be de╜signed to serve only as a mobile carriage for the job-site equipment" in order to qualify under part (B). Def.'s Mot. at 15. For defendant, "only" means "only." Any other use of the vehicle, such as cargo-hauling, defeats part (B) of the test. See Reply of the United States in Support of its Motion for Partial Summary Judgment and in Opposi╜tion to Plaintiffs Cross-Motion for Summary Judgment (Def.'s Reply) at 15.

Plaintiff argues that "only" should be con╜strued to allow the application of the mobile machinery exception when the "special de╜sign" feature constitutes "substantial limita╜tions to the [vehicle's] utility for any other application" than as a mobile carriage for the job-site equipment. Pl.'s Opp. at 27. Plain╜tiff contends that the word "only" must be interpreted using a "reasonableness" stan╜dard. Id. at 39. Any other interpretation, according to plaintiff, would be " 'hypertech╜nical', and unworkable." Pl.'s Reply at 20 (quoting Utilicorp United, Inc. v. United States, 21 Cl.Ct. 453, 467 (1990)).

To support its contention, plaintiff points to several private letter rulings and technical advice memoranda issued by the Internal Revenue Service to other taxpayers. See Pl.'s Opp. at 33-37. But it is clear that the private letter rulings to other taxpayers and technical advice memoranda "may not be used or cited as precedent." 26 ╖ U.S.C. ╖ 6110(k)(3). Further, this court has made clear that such guidance only has prece╜dential value as to the specific taxpayers to which they are issued. Vons , 51 Fed.Cl. at 9. Accordingly, the court finds that the private letter rulings and technical advice memoran╜da cited by plaintiff provide no support for its interpretation of "only."

Plaintiff also relies on cases decided by this and other trial courts to bolster its posi╜tion. However, none of the cases it cites is binding on this court for the asserted propo╜sition. See Pl.'s Opp. at 33-37; Pl.'s Reply at 16-24. While those cases may provide guid╜ance to the court in analyzing certain of the vehicles at issue, they do not bind the court's interpretation of the regulation as a whole.

Defendant argues that plaintiff seeks, in effect, a return to the pre-1977 regulation, the "primary design" test, which is not appli╜cable to this case. Def.'s Reply at 7. Accord╜ing to defendant, the language of the regula╜tion applicable to this case leaves no room for flexibility; "only" must mean "only," and any cargo-hauling capacity results in the inappli╜cability of the exemption. Id. at 15-16. Based on the plain language of the applicable regulation, the court agrees with defendant.

The court does not believe, however, that it is necessary that designers eliminate any nooks and crannies where some cargo could conceivably be stashed. It is not nec╜essary, for example, that there be no place for tools, clothing, and safety equipment. The court believes that vehicles which carry the foregoing and similar items as incidental cargo may nevertheless be deemed to qualify under part (B) of the exception under a "reasonableness" standard. But plaintiffs effort to return to the "primary design" test based on a "reasonableness" argument is not supportable given the plain language of part (B) of the mobile machinery exception.

Finally, the parties disagree on the proper interpretation of part (C) of the mo╜bile machinery exception. Part (C) of the regulation provides, "[A self-propelled vehicle . . . is not a highway vehicle if] (C) by reason of such special design, such chassis could not, without substantial structural modification, be used as a component of a vehicle designed to perform a function of transporting any load other than that particular machinery or equipment or similar machinery or equip╜ment requiring such a specially designed chassis." Treas. Reg. ╖ 48.4041-8(b)(2)(i).

Defendant argues that "the chassis must not be capable of transporting any load other than the work-performing equipment without substantial structural modification," thereby focusing on the cargo-hauling capacity of the vehicles. Def.'s Mot. at 15-16. Plaintiff fo╜cuses instead on the "substantial structural modification" portion of the test, arguing that any focus on the cargo-hauling capacity of the vehicle would merely duplicate part (B) of the exception. Pl.'s Reply at 15.

Plaintiff argues that defendant's interpre╜tation of part (C) of the mobile machinery exception is "completely novel and inherently incorrect." Pl.'s Reply at 15. Specifically, plaintiff relies on the district court's interpre╜tation of the current regulation in Hallibur╜ton Co. v. United States, 611 F.Supp. 1118 (N.D.Tex.1985), where the court stated:

The new regulation must be read in realis╜tic and practical terms. A proper inquiry should be whether a chassis could reason╜ably be used as a component of a highway vehicle . . . . Of course, given the necessary time, expertise and money, one of plain╜tiffs' chassis could be converted to another use. However, no one would reasonably do so when a suitable chassis for another application could be acquired from the manufacturer at considerable cost savings.

611 F.Supp. at 1129 (quoted in Pl.'s Opp. at 36-37). Plaintiff argues that this test-wheth╜er, as a reasonable business matter, one would choose to rework the chassis to carry other cargo-represents the proper interpre╜tation of part (C), and should be used by the court here. See Pl.'s Reply at 15.

Defendant argues that "plaintiffs-and the district court's [in Halliburton ]-description of the [p]art [(C)] test does not track the regu╜lation and is overbroad . . . ." Def.'s Reply at 16. For defendant, the key question is whether substantial structural changes are needed to carry any other load, not whether a business person would choose to make whatever changes are necessary. See Tr. at 23.

The regulation states that "by reason of such special design [referred to in part (B) of the regulation], such chassis could not, with╜out substantial structural modification, be used as a component of a vehicle designed to perform a function of transporting any load other than that particular machinery . . . re╜quiring such a specially designed chassis." Treas. Reg. 48.4041-8(b)(2)(i)(C) (emphasis added).

The court notes that the language of part (C) of the mobile machinery exception effec╜tively incorporates a portion of the part (B) test. Both tests relate to the capability of the vehicle to carry a load other than mobile machinery. If the vehicle is capable, without modification, of carrying a load in addition to the job-site equipment, the vehicle already fails the test under part (B). The part (C) test provides an additional requirement: that substantial structural modification be re╜quired for the vehicle to serve as a carrier for other cargo (assuming it does not already have the capacity to carry cargo and thereby fails part (B) of the test). Plaintiffs argu╜ment that the part (C) test addresses only "substantial structural modification," Pl.'s Reply at 15, appears to the court to ignore one of the two prongs of the part (C) test. ⁶

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^6. Although the parties do not address the point, it appears to the court that a failure to meet the part (A) test could also result in a failure to meet the part (B) test. For example, the existence of chassis-mounted loading and unloading equip╜ment not permitted under part (A) would also defeat the requirement in part (B) that "only" mobile machinery be mounted on the chassis. In at least some cases, a violation of part (A) is a subset of the possible violations of part (B). It would be consistent with the structure of the regulation for a violation of part (B) to be a subset of the possible violations of part (C).

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Within the foregoing framework for ana╜lyzing the vehicles under the three-part test of the mobile machinery exception, the court now considers the several types of vehicles at issue.

a. Tractors

The tractors at issue in this case in╜clude tractors with winches, cranes, wet kits, hydraulic pumps, blowers or compressors. Jt. Stip. ╤ 13. Defendant has conceded that tractors with wet kits, hydraulic pumps, winches and wet kits, and wet kits and blow╜ers satisfy part (A) of the mobile machinery exception. ⁷ The court therefore reviews whether the tractors with cranes, winches, compressors, or blowers satisfy part (A) of the test.

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^7. On November 25, 2002, defendant filed a mo╜tion for leave to file corrected pages of its motion for partial summary judgment to eliminate the concessions as to the winches and wet kits and the wet kits and blowers. The court sees no reason to grant this motion. Defendant made the concession on March 22, 2002, in its motion for partial summary judgment. It did not at╜tempt to correct this until late November, over eight months later, and after the court had point╜ed out this concession at oral argument. Tr. at 14-15. Because of this long delay, defendant's Motion for Leave to File Corrected Page of its Opening Brief is DENIED.

************

Defendant argues that the stated purpose of the crane, winch, compressor, or blower is to load or unload cargo, and that such equip╜ment is not unrelated to highway transporta╜tion. Def.'s Mot. at 16. Defendant argues that the work-performing machinery is therefore not "unrelated to transportation on or off the highway," and accordingly part (A) of the mobile machinery exception is not met. Def.'s Mot. at 17.

Plaintiff argues that because the equip╜ment in question is permanently mounted on the chassis and the vehicles "are designed with the primary emphasis of efficient opera╜tion of the machinery at the well site," part (A) of the mobile machinery exception is met. Pl.'s Opp. at 26.

The court agrees with defendant that trac╜tors with winch, compressor, and blower do not meet part (A) of the mobile machinery exception. The documents contained in the parties' joint stipulation support this conclu╜sion unequivocally. The winch is used "to load skid mounted units." Jt. Stip. Ex. 9 at 20. The blower "provides air to load dry bulk material, primarily sand and cement." Id. at 28. The compressor "provides air to load and unload dry bulk material, primarily sand and cement." Id. at 32. Further, at oral argument, plaintiff was unable to point to a use of the winch, blower, or compressor that did not involve loading or unloading of cargo. Tr. at 50-51. Tractors with winch, compressor, and blower do not satisfy part (A) of the exception because loading and unloading cargo contributes to the transpor╜tation function of the tractors.

Plaintiff attempts to distinguish the trac╜tors with crane. At oral argument, plaintiff posited that the cranes in fact are used to position equipment at the job site, a use that would not be related to a transportation func╜tion. Tr. at 51-52. Plaintiffs contention in this regard is supported by the affidavit of Charles J. Whitacre, which states that the cranes are used "to maneuver various heavy components such as connecting pipe and fit╜tings into place." Appendix A to Plaintiffs Opposition to Defendant's Motion for Partial Summary Judgment and Cross Motion for Partial Summary Judgment (Pl.'s App.) at 4. However, the parties' joint stipulation states that the crane is used "to spot Tree savers and to load and unload large items." Jt. Stip. Ex. 9 at 18. Loading and unloading is a part of a transportation function. Treas. Reg. ╖ 48.4061(a)-1(a)(3)(i). Notwithstand╜ing plaintiffs effort to challenge its own joint stipulation, the court believes that plaintiffs stipulation has effectively conceded that the tractors with crane do not satisfy part (A) of the exception.

The court next addresses the tractors with respect to part (B) of the mobile machinery exception. Defendant's argument on this point is very simple; the tractors are de╜signed to tow a trailer on its fifth wheel. Def.'s Mot. at 17-18. Because part (B) is limited to those vehicles whose load "consists only of permanently installed machinery," plaintiffs tractors do not satisfy the test. Id. at 18.

Plaintiff has attempted to meet part (B) by arguing that the tractors are "married" to individual trailers, and therefore the tractor-trailer combination should be viewed as a whole. Pl.'s Reply at 6; Tr. at 41-42. Affi╜davits in the record refer to trailers that are "generally used" with certain tractors, and state that other trailers are "useless" without the specific tractor to power it. Pl.'s App. at 4-5, ╤ 4. Plaintiff contends that the tractors are modified to do a certain job with a cer╜tain trailer, and that the court should view the combination accordingly. Tr. at 44.

Plaintiff argues that the district court opin╜ion in the Halliburton case supports its posi╜tion that the tractor-trailer combination should be viewed as one unit for purposes of part (B) analysis. Pl.'s Reply at 14. In Halliburton, the district court initially men╜tions one of the types of vehicles at issue being "a tractor-trailer combination unit." 611 F.Supp. at 1119. However, the court immediately follows that statement with a listing of the various trucks and trailers in dispute, with no mention of any tractors. Id. at 1120.

Further, the case law and plain language of the regulations make clear that tractors and trailers are two distinct types of vehicles, and must be dealt with accordingly. Trea╜sury regulations define a highway vehicle as "any self-propelled vehicle, or any trailer or semi-trailer." Treas. Reg. ╖ 48.4041-8(b). The text of the mobile machinery exception also uses the disjunctive "or" to separate the category of self-propelled vehicles (which would include tractors) from the category of trailers. Treas. Reg. ╖ 48.4041-8(b)(2)(ii). Halliburton, the case relied upon by plaintiff to support its contention that the tractor and trailer should be coupled, states that, for purposes of a mobile machinery exception analysis, "the chassis consist of four general major component groups-the frame, the drive system, the suspension system, and the cab." Halliburton, 611 F.Supp. at 1120. Similarly, this court found that the analysis of the application of the mobile machinery exception to a vehicle should be made after the special modifications have been made to the chassis, but before the job-site equipment was mounted. Utilicorp, 21 C1.Ct. at 466. Given the clear language of the regulation and the consistent case law, the court sees no reason to couple the tractor and trailer for purposes of this analysis.

Viewing the tractors independently of the trailers, it is clear that none meets the part (B) test. The cargo that can be hauled by these tractors is not incidental-the tractors have a fifth wheel that is designed to haul a trailer. The parties' joint stipulation high╜lights this, as the first application of every tractor in question is to "[t]ransport[ ] float equipment." Jt. Stip. Ex. 9 at 18, 20, 22, 24, 26, 28, 30, 32. Because the tractors do not "serve only as a mobile carriage and mount," Treas. Reg. ╖ 48.4041-8(b)(2)(i)(B), they fail part (B) of the mobile machinery exception. Even if the tractors in issue could meet the part (A) and (B) tests, they would still fail the part (C) test. Defendant's argument is once again very simple; that plaintiff's trac╜tors are capable of transporting cargo with╜out any structural modification, and there╜fore they do not meet the part (C) test. Def.'s Mot. at 18.

Plaintiff argues that its tractors need sig╜nificant structural modifications before they can be "economically used as a component of a highway vehicle." Pl.'s Opp. at 40. Ac╜cording to plaintiff,

In order to reasonably use [plaintiff's trac╜tor] chassis as modified for any other transportation use, it would be necessary to remove all of the deck mounting mem╜bers and brackets, the subframes and their mountings, the outriggers and their assemblies, headache racks, winches where installed, the extra rear lift axles, hydrau╜lic systems, the larger non-standard fuel tanks, heavy duty front and rear bumpers, and add in-frame cross members where necessary. In addition, the front axle would have to be changed, battery boxes, air tanks and fuel tanks would have to be moved, the frame would probably have to be lengthened or shortened, and perhaps the wheelbase altered to accommodate the new application. If the wheelbase were altered, it would be necessary to remove and replace the driveline. Heavy-duty wheels, additional brake chambers, power take offs, and transfer cases would have to be removed. The rear axle gear ratio would probably have to be changed as well because the low gear ratio would make any highway transportation not fuel-effi╜cient .... Even with the foregoing altera╜tions and removals, the truck chassis would still be heavier and more expensive because of the items which cannot be re╜moved, e.g., transmission for remote con╜trols, more expensive engine and transmis╜sion than necessary, unnecessary frame reinforcement, unusual front axle place╜ment, zero (0) degree engine mount, heavy duty front spring brackets, dual mode transmissions, heavy duty U -joints, com╜pression plates, bar stock for leveling of frame, and the like.

Pl.'s App. at 10, ╤ 19. All these modifications are necessary, plaintiff argues, because with╜out them, the maximum fuel-efficient speed of the tractors is approximately 50 miles per hour in a part of the country where highway speeds of 70 to 80 miles per hour are the norm. Id. at ╤ 20.

But plaintiff does not point to text in the regulation which allows an exception for structural modifications required for the unit to serve economically as a highway vehicle. The regulation instead states that the vehicle "could not, without substantial structural modification, be used as a component of a vehicle designed to perform a function of transporting any load other than that partic╜ular machinery or equipment or similar ma╜chinery or equipment requiring such a spe╜cially designed chassis." Treas. Reg. ╖ 48.4041-8(b)(2)(i)(C). While all the modifi╜cations enumerated by plaintiff may well be required for the tractor to serve economically as a highway vehicle, none is needed for the tractors to "be used as a component of a vehicle designed to perform a function of transport[ation]." Id. Therefore, none of the tractors satisfies part (C) of the mobile ma╜chinery exception. ⁸

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^8. In analyzing whether a chassis would need substantial structural modification, one of the factors taken into consideration by the Internal Revenue Service has been whether the modifica╜tions resulted in an asymmetric configuration. See Rev. Rul. 79-423, 1979-2 C.B. 386, 1979 WL 50738. It has been contended by plaintiff that the modifications to its vehicles result in chassis with asymmetric configurations. Pl.'s Opp. at 16. Defendant has argued that there are few facts developed regarding the modification and that, in any case, the point is not dispositive of this dispute. See Tr. at 22-23. In Revenue Rul╜ing 79-423, 1979 WL 50738, the only issue was whether the vehicles met the part (C) test be╜cause the equipment in question was permanent╜ly mounted to the chassis and unrelated to trans╜portation, meeting part (A), and there was no contention that the vehicles had any cargo haul╜ing capacity, meeting part (B). Rev. Rul. 79-423, 1979-2 C.B. 386, 1979 WL 50738. The configuration was therefore dispositive of the dispute. Id. In this case, the court agrees with defendant that whether or not the vehicles in question have an asymmetric configuration is not dispositive because of their significant cargo ca╜pacities.

***********

Because none of plaintiff's tractors satis╜fies parts (B) or (C) of the mobile machinery exception and, in addition, because the trac╜tors with cranes, winches, compressors, or blowers also fail to satisfy part (A) of the mobile machinery exception, the mobile ma╜chinery exception is not available. Summary judgment is accordingly GRANTED to de╜fendant on this issue.

b. Sand Dump Trucks, Conical Cement Transport Trucks, and Tank Erector Trucks

Defendant argues that the sand dump trucks, conical cement transport trucks, and tank erector trucks do not meet part (A) of the mobile machinery exception because the conical cement tanks, sand compartments, and tank erector tilt beds and hydraulic arms present in the vehicles are related to trans╜portation. Def.'s Mot. at 19-20.

Plaintiff argues that its vehicles do meet part (A) of the mobile machinery exception, appearing to rely on a blanket assertion in regard to the sand dump trucks and cement transport trucks. Pl.'s Opp. at 25. With respect to the tank erector trucks, plaintiff specifically asserts that "[their] primary function . . . is not transportation; it is the positioning of various items of equipment necessary for the services involved at the well site." Id. at 26.

It is clear to the court that both the sand dump trucks and cement transport trucks do not meet the part (A) test of the mobile machinery exception. The purpose of these trucks is to transport their load, see Jt. Stip. Ex. 9 at 4, 7, and therefore the mobile ma╜chinery exception is not available to them.

The tank erector trucks, however, present a slightly different question. Unlike the sand and cement trucks, the tank erector trucks transport an empty bin. Jt. Stip. Ex. 9 at 14. The mobile machinery in question is the hydraulic arms that load and unload the empty bin. Id. If one were to view the bin as an item "incidental" to the function of the machinery, much as the safety equipment mentioned above in the discussion of what cargo would be viewed as "incidental" under part (B) of the test, then part (A) could be met. But the court sees no reason to view an empty bin any differently from a loaded one; the bin is still cargo, and the machinery in question is therefore used to load and unload cargo. Additionally, the parties agree that the trucks are "used to transport porta╜ble dry material storage units to and from locations." Jt. Stip. Ex. 9 at 16 (emphasis added). The court therefore finds that part (A) of the mobile machinery exception is not met as to the tank erector trucks.

Even if part (A) of the test were met, the court cannot find that part (B) of the test is met by the tank erector trucks. Defendant argues that part (B) is not met because the chassis is "not designed solely as [a] car╜riage[ ] for the work-performing bodies per╜manently mounted thereon." Def.'s Mot. at 20 (emphasis in original). According to de╜fendant, the truck can carry a substantial removable load, and therefore it cannot quali╜fy under part (B) of the test.

Plaintiff argues that any hauling capacity is merely incidental to the work of the tank erector trucks at the job site. Pl.'s Reply at 18. In making this argument, however, plaintiff focuses not on the tank erector trucks, but on the cargo capacity of the nitro╜gen pumper trucks, which are discussed sep╜arately below. Id. As defendant points out, the parties have stipulated that the tank erector truck has a payload capacity of 22,300 pounds of cargo. Def.'s Mot. at 20; Jt. Stip. ╤ 18. By comparison, a fully loaded conical cement truck carries 27,100 pounds and a sand dump truck carries 29,000 pounds of cargo. The tank erector trucks appear, based on stipulated facts, to be dual purpose vehicles. Part (B) does not appear to the court to contemplate an exception for such vehicles. Treas. Reg. ╖ 48.4041-2(b)(2)(B) ("the chassis has been specially designed to serve only as a mobile carriage and mount ... for the particular machinery or equip╜ment involved . . . . ") (emphasis added). Ac╜cordingly, the tank erector trucks do not meet part (B) of the mobile machinery excep╜tion.

The tank erector trucks cannot meet part (C) of the mobile machinery exception either, even if parts (A) and (B) were met. No modifications are necessary to use the truck as a highway vehicle, because cargo can be loaded on the flatbed behind the hydraulic arms. See Jt. Stip. Ex. 9 at 14, Ex. 10 at 11, 12 (pictures of tank erector trucks without the tank, showing a large flatbed on which substantial cargo could be loaded). While this may not be the most economical use of these vehicles, the court believes it is a use sufficient to take the tank erector trucks out of compliance with part (C) of the test.

Because plaintiff's sand dump trucks, coni╜cal cement trucks, and tank erector trucks do not satisfy parts (A), (B), or (C) of the test for the mobile machinery exception, the ex╜ception is not available. Summary judgment is accordingly GRANTED to defendant on this issue.

c. Nitrogen Pumper Trucks

Defendant concedes that the nitrogen pumper trucks meet part (A) of the mobile machinery exception. Def.'s Mot. at 21 n.24. Defendant argues that the nitrogen pumper trucks fail the part (B) test because they are not designed to serve only as a mobile car╜riage for the pump mounted on the chassis. Def.'s Mot. at 23. Defendant contends that Liquid Asphalt Sys., Inc. v. United States, 555 F.Supp. 1100 (W.D.Mo.1982), supports its position. Def.'s Mot. at 23. In that case, a truck which transported liquid asphalt to a job site was held not to fall within the mobile machinery exception even though there was dispensing equipment permanently mounted on the carriage. Def's Mot. at 23 (citing Liquid Asphalt, 555 F.Supp. at 1104).

Plaintiff argues that any hauling capacity the nitrogen pumper trucks have is incidental to its function at the well site. Pl.'s Opp. at 32. Plaintiff contends that "if [the nitrogen pumper trucks] were designed to haul liquid nitrogen economically, it would not have a heavy duty oil field chassis or a high pres╜sure pump, and would have a 5,000 or 8,000 gallon tank customarily seen on liquid trans╜ports." Id. Because the nitrogen pumper trucks have smaller tanks combined with the job site equipment permanently mounted on the chassis, plaintiff contends that they are "substantially identical" to the acid pumpers found to be exempt by the district court in Halliburton, 611 F.Supp. at 1128, and by this court in Halliburton Co. v. United States, 4 C1.Ct. 150, 154 (1983). Pl.'s Opp. at 32.

Defendant's case, Liquid Asphalt, involved tankers that were designed to provide roof╜ing contractors, among others, with a more convenient and economical way of bringing hot asphalt to the job site. Liquid Asphalt, 555 F.Supp. at 1103. The vehicles arrived at the job site with "large quantities of liquid asphalt" which would then be pumped up to the roof. Id. The court found that plaintiff "clearly established that an important aspect of the design of these job tankers is to function as construction equipment on the job site," but also found that the highway transportation function was not incidental. Id Accordingly, the court held that "plain╜tiff's job tankers are not 'specially designed to serve only as a mobile carriage and mount . . . for the particular machinery or equip╜ment involved.'" Id. at 1104. Because the vehicles were also designed to transport liq╜uid asphalt over the public highways, they did not meet the part (B) test of the mobile machinery exception. See id.

The Halliburton cases both involved acid pumper trucks to be used at well-sites. Hal╜liburton, 611 F.Supp. at 1128; Halliburton Co. , 4 C1.Ct. at 156. The acid pumper trucks were capable of traveling up to 55 miles per hour and did not require special permits to operate on public highways. Halliburton, 611 F.Supp. at 1120-21; Halliburton, 4 Cl. Ct. at 151. The vehicles carried 1500 gallons of acid, in addition to the job site pumping equipment. Halliburton, 611 F.Supp. at 1128. Both the district court and this court found the acid carried by the vehicles to be incidental to the vehicle's design to operate as a piece of mobile machinery. Id.; Halli╜burton, 4 CI.Ct. at 154. The district court held that the part (B) test was not met, in large part because there was evidence that the amount of acid carried by the vehicle was insufficient to perform the job. Halliburton, 611 F.Supp. at 1128.

The court does not believe that the nitro╜gen pumper trucks in question fit exactly within the framework articulated by either Liquid Asphalt or the Halliburton cases. In Liquid Asphalt, the court found that the vehicles carried "large quantities" of cargo. 555 F.Supp. at 1103. The district court in Halliburton found that 1500 gallons of acid was an "incidental" amount. 611 F.Supp. at 1128. Neither of these extremes is present in this case; the parties agree that the nitro╜gen pumper truck can haul some cargo, but do not agree as to the importance of that amount. Defendant argues that the nitrogen pumper truck has "substantial payload capac╜ity." Tr. at 25-26. Plaintiff argues that the truck would need a 5,000 or 8,000 gallon tank to haul liquid nitrogen economically. Pl.'s Opp. at 32.

The fact remains, however, that the truck is designed to carry 1,920 gallons of liquid nitrogen over public highways to the job site. Jt. Stip. Ex. 9 at 2. To the extent that the Liquid Asphalt and the Halliburton courts reflect different interpretations of the lan╜guage of part (A) of the test, the court agrees with the conclusion in Liquid Asphalt that the part (B) test is met when the chassis is designed to serve "only" as a carriage for mobile machinery. See Liquid Asphalt, 555 F.Supp. at 1104. Even if, as the court thinks, some incidental cargo capacity is per╜missible under part (B) of the test, the court cannot find the cargo-carrying capacity here to be "incidental" to the function of the nitro╜gen pumper trucks as a mobile carriage for the pumper mechanisms. This is not a case of a nook or niche for tools or safety equip╜ment. The regulation does not contemplate an exception when a portion of the vehicle is, as here, designed with the purpose of carry╜ing cargo. Therefore the nitrogen pumper trucks do not meet part (B) of the test.

Nor do the nitrogen pumper trucks meet part (C) of the test. No modification is necessary, because the trucks already are used to haul cargo over public highways. Because the trucks do not satisfy parts (B) or (C) of the mobile machinery exception, the exception is not available. Summary judg╜ment is accordingly GRANTED to defendant on this issue.

d. Crane Trucks With or Without Tank

Defendant asserts that the crane trucks "arguably" fail the part (A) test be╜cause the small crane can be used for loading and unloading cargo. Def.'s Mot. at 21 n.24. Plaintiff argues that the cranes meet the part (A) test because it can be presumed that they are not used for loading and unloading under Revenue Ruling 75-88, 1975-1 C.B. 341, 1975 WL 34840. Pl.'s Opp. at 32, 34. Plaintiff argues that all the cranes here extend be╜yond 25 feet in length, just as did the cranes in Revenue Ruling 75-38 that were found to be exempt. Id. at 34.

Revenue Ruling 75-88, however, involved cranes sold prior to the enactment of the current regulation in 1977 and addressed the question of whether the cranes were "de╜signed or primarily used for loading and unloading trucks upon which they are mount╜ed." Rev. Rul. 75-88 (emphasis added). Cranes under 25 feet were presumed to be used in loading and unloading, and cranes over 25 feet were presumed to be exempt. Id . The question for the court under the regulation applicable to this case is whether in fact the crane is used for a function relat╜ed to transportation, such as loading and unloading. Treas. Reg. ╖ 48.4041-8(b)(2)(i)(A). Therefore, the court finds Rev╜enue Ruling 75-88 unpersuasive in deciding whether the vehicles at issue meet the part (A) test under the post-1977 regulation.

The court cannot determine as a matter of law whether the cranes are used for loading and unloading here. The facts have not been fully developed on this issue, and even though it appears in the parties' joint stipulation that the cranes are being used to load or unload cargo, Jt. Stip. Ex. 10 at 8, this is a factual determination that cannot be made on summary judgment.

Even if the trucks were presumed to meet the part (A) test, they fail both the part (B) test and the part (C) test. Plaintiff argues that the presumption of exemption in Reve╜nue Ruling 75-88 supports the conclusion that any cargo capacity of vehicles with cranes that extend beyond 25 feet is merely incidental. See Pl.'s Opp. at 34. Plaintiff also argues that any cargo hauling capacity of its crane trucks should not only be presumed to be incidental, but is in fact merely incidental to its job site function. Pl.'s Opp. at 32-33. ⁹

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^9. Plaintiff additionally argues that its crane trucks function in a manner substantially identi╜cally to the crane truck found to be exempt in UEC Equip. Co. v. United States, 21 C1.Ct. 244 (1990). Pl.'s Opp. at 30, 32-33. Defendant con╜tends that the disposition in this case is not governed by UEC , primarily because the cargo-carrying capacity of the flatbeds of the crane trucks in UEC was not litigated. Def.'s Reply at 18-19. The court notes that in UEC the only disputed portion of the test that was resolved by the reported opinion concerned the applicability of part (C). See UEC, 21 Cl.Ct. at 246 ( finding that those vehicles with certain combinations of chassis modifications were not "highway vehi╜cles" under the regulations); Def.'s Reply at 10. Further, the plaintiff in UEC did not present its case on a unit-by-unit approach, but rather used an en-masse approach. 21 CI.Ct. at 246. There╜fore, the court does not see how UEC is applica╜ble to the part (B) test.

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Defendant argues that the crane trucks are designed to transport substantial cargo, which the cranes load and unload. Def.'s Mot. at 23. This contention is supported by the parties' joint stipulation which states that stimulation utility trucks (which have the same chassis design as the crane trucks with and without tanks) "transport[ ] and posi╜tion[ ] heavy pipe and fittings on large frac jobs." Jt. Stip. Ex. 9 at 10.

The parties have also stipulated that the crane trucks with tanks have a cargo capaci╜ty of 48,000 pounds, and the crane trucks without tanks have a cargo capacity of 30,000 pounds. Jt. Stip. ╤ 18. It is true that the trucks have a large crane permanently mounted to the chassis, but the joint stipula╜tion also clearly shows that large amounts of pipe are carried in racks attached to the flatbed. Jt. Stip. Ex. 10 at 8. These trucks are designed as dual purpose vehicles, both to carry a substantial load and to serve as a carriage for the crane. Therefore, the trucks are not designed "to serve only as a mobile carriage or mount . . . for the particular ma╜chinery or equipment involved," as the regulation requires. Treas. Reg. ╖ 48.4041-8(b)(2)(i)(B) (emphasis added). The court finds that these cargo capacities are more than merely "incidental." Accordingly, the crane trucks with and without tanks do not meet part (B) of the test.

For the same reason that the crane trucks do not meet part (B) of the test, the crane trucks do not meet part (C) of the test. The crane trucks with or without tank need no modification to carry cargo, and therefore cannot meet the part (C) test.

Because plaintiff's crane trucks with or without tank do not satisfy parts (B) or (C) of the mobile machinery exception, the excep╜tion is not available. Summary judgment is accordingly GRANTED to defendant on this issue.

e. Stimulation Utility Trucks

Defendant concedes that the stimu╜lation utility trucks meet part (A) of the test. Def.'s Mot. at 21 n.24. Defendant argues that part (B) of the test is not met because the truck is designed to transport substantial cargo, and that part (C) of the test is not met because that substantial cargo capacity means that no structural modifications are necessary. Id. at 22-23.

For the same reasons the court has consid╜ered with respect to the crane trucks, the court finds that the stimulation utility trucks do not meet parts (B) or (C) of the test. The cargo capacity of these trucks is 26,000 pounds. Jt. Stip. ╤ 18. The court has deter╜mined that "incidental" cargo capacity is ca╜pacity to carry such items as tools, clothing, and safety equipment. See supra II.B.1. The stimulation utility trucks, by contrast, have large racks mounted on the flatbed to carry heavy pipes and fittings. Jt. Stip. Ex. 10 at 6. Twenty-six thousand pounds cannot, in the court's view, be characterized as incidental. Because the trucks are designed both to serve as a mobile carriage for the crane and to carry a substantial load, they are not designed "to serve only as a mobile carriage or mount . . . for the particular machinery or equipment involved," as the regulation re╜quires. Treas. Reg. ╖ 48.4091-8(b)(2)(i)(B) (emphasis added).

Because plaintiff's stimulation utility trucks do not satisfy parts (B) or (C) of the mobile machinery exception, the exception is not available. Summary judgment is accord╜ingly GRANTED to defendant on this issue.

f. Conclusion

With regard to the mobile machinery ex╜ception, defendant's motion for partial sum╜mary judgment is GRANTED, and plaintiff's cross-motion for partial summary judgment is DENIED.

2. Off-highway Use Exception

The off-highway use exception is a two-part, conjunctive test. The vehicle must be of special design for a primary function of off-highway transport and that special design must result in substantial limitation or im╜pairment of the use of the vehicles for high╜way transport:

A self-propelled vehicle, or a trailer or semi-trailer, is not a highway vehicle if it is (A) specially designed for the primary function of transporting a particular type of load other than over the public highway in connection with construction, manufac╜turing, processing, farming, mining, drill╜ing, timbering, or other operation similar to any one of the foregoing enumerated operations, and (B) if by reason of such special design, the use of such vehicle to transport such load over the public high╜ways is substantially limited or substantial╜ly impaired.

Treas. Reg. ╖ 48.4041-8(b)(2)(ii). The regu╜lation also gives guidance as to how the court should evaluate claims that a vehicle falls within the off-highway use exception, stating:

For purposes of applying the rule of clause (b) of this paragraph b(2)(ii), account may be taken of whether the vehicle may travel at regular highway speeds, requires a spe╜cial permit for highway use, is overweight, overheight or overwidth for regular use, and any other relevant considerations. Solely for purposes of determinations un╜der this paragraph (b)(2)(ii), where there is affixed to the vehicle equipment used for loading, unloading, storing, vending, han╜dling, processing, preserving, or otherwise caring for a load transported by the vehicle over the public highways, the functions are related to the transportation of a load over the public highways even though the func╜tion may be performed off the public high╜ways.

Treas. Reg. ╖ 48.4041-$(b)(2)(ii).

The application of the off-highway use exception is claimed by plaintiff for the sand dump trucks and conical cement trans╜port trucks. ¹⁰ As an initial matter, defen╜dant argues that the off-highway use excep╜tion "generally applies to oversized vehicles." Def.'s Mot. at 25. In this case, defendant points out, plaintiff's vehicles have highway╜rated chassis and highway tires, do not need any special permits to travel over public highways, and can travel up to 55 miles per hour. Def.'s Reply at 20. For those rea╜sons, defendant argues, the vehicles do not meet the requirements of the exception. Id. Defendant argues further that the mere fact that increased operating costs are associated with the trucks does not "substantially im╜pair" their ability to transport a load over the public highway. Def.'s Mot. at 25-26. De╜fendant quotes the court in Western Co., 699 F.2d 264, which reviewed and upheld a jury verdict denying the off-highway use excep╜tion:

***********

^10. In its opposition and cross-motion, plaintiff did not specifically state which vehicles it felt qualified under the off-highway use exception. See Pl.'s Opp. a t 46 (loads included work per╜forming equipment). In its reply brief, however, plaintiff explicitly limited its argument to the sand dump trucks and conical cement transport trucks. Pl.'s Reply at 24. Accordingly, the court limits its analysis here to the sand dump trucks and conical cement transport trucks.

***********

Other features, such as special frame sup╜ports and cross-member reinforcements, tandem front axles; and heavy-duty sus╜pension systems, make the vehicles heavier and more expensive than similar commer╜cial vehicles, thereby limiting their payload and increasing their operating costs as compared with exclusively highway vehi╜cles. These features are, however, com╜monly found in heavy-duty highway trucks. Finally, the vehicles are in most cases engineered to incorporate the off-highway use features into designs acceptable for highway use without special permit. The delays and travel restrictions imposed on the movement of equipment with special permit are thereby avoided.

Def.'s Mot. at 26 (quoting Western Co., 699 F.2d at 267). Defendant argues that the same observations can be made about plaintiff's trucks as were made by the court in Western Co. The trucks have not been spe╜cially designed for off-highway use, and that any special design does not "substantially limit[ ]" or "impair[ ]" their ability to trans╜port loads over the public highway within the meaning of Treas. Reg. ╖ 48.4041-8(b)(2)(ii). Deё's Mot. at 27-28.

Western Co. is an appellate opinion on a trial that involved many of the same fact.-, that are present here on summary judgment. The nature of the work of the plaintiff in Western Co., like the work of plaintiff here, required that its equipment do some travel over difficult terrain. Western Co., 699 F.2d at 266. But over 80% of the mileage traveled by those vehicles was on public highways, traveling to job sites 100 miles or more from the district office. Id . Plaintiffs vehicles here generally travel within 200 miles of their home base, logging 80% of their miles on public highways. DPFUF ╤ 13. And just as is the case here, the vehicles in question in Western Co. did not need special permits to travel on the public highways. Western Co., 699 F.2d at 267; Jt. Stip. ╤ 19.

But Western Co. is not quite as helpful as defendant may suggest. The question of the taxability of the vehicles in Western Co. was initially decided by a jury. Western Co., 699 F.2d at 269. The appellate court's review was therefore limited to whether "the facts and inferences point so strongly and so over╜whelmingly in favor of one party that reason╜able men could not arrive at any verdict to the contrary." Id . at 276. Based on the record before it, the appellate court simply found that the jury's conclusion that the vehi╜cles were taxable was not unreasonable. Id . Western. Co., even if it were precedential, would not be outcome-determinative in this case.

Plaintiff argues that its vehicles are "spe╜cially designed to meet the extremes of ter╜rain and weather conditions off road," and therefore do meet the requirements of the exception. Pl.'s Opp. at 46. Plaintiff contends that its vehicles are more costly than similar highway vehicles, can only haul 60-80% of a full load without a permit, and have special discharge devices designed for a par╜ticular application at the well site. Pl.'s Re╜ply at 24. Plaintiff argues its trucks are substantially identical to the vehicles found exempt in Flow Boy, Inc. v. United States, 83-1 U.S.T.C. ╤ 16,395, 1982 WL 1735 (W.D.Ok.1982), and that the court should come to the same conclusion as to the vehi╜cles in front of it now. Id. Further, plaintiff argues that its vehicles are "substantially limited or impaired in the economic sense." Pl.'s Opp. at 46. Because "their utility for hauling [is] substantially limited by cost, op╜erating expense and payload capacity," plain╜tiff argues, its trucks meet both tests for the off-highway use exception. Pl.'s Reply at 25.

Flow Boy, like Western Co., was also de╜cided by a jury. Flow Boy, Inc. v. United States, 83-1 U.S.T.C. ╤ 16,395, 1982 WL 1735 (W.D.Ok.1982). In Flow Boy, plaintiff ar╜gued that its vehicles were specially designed to carry weight above the legal load limit, cost substantially more than highway vehi╜cles without off-highway capacities, and could not economically haul cargo over the public highways. Id . On the basis of this argument, the jury found that the vehicles were special╜ly designed for off-highway use, and that special design substantially impaired the ve╜hicle's ability to carry a load over the public highways. Id . This decision was affirmed without substantial discussion by the appel╜late court. 84-1 U.S.T.C. ╤ 16,418, 1984 WL 15513 (10th Cir.1984).

Because neither case relied upon by the parties is either binding or in a closely analo╜gous posture, the court looks to the text of the regulation for guidance in deciding whether plaintiffs vehicles meet part (B) of the test. The regulation directs the court to look at whether the vehicles in question can travel at regular highway speeds, are over╜weight, or need special permits to operate. Treas. Reg. ╖ 48.4041-8(b)(2)(h). Here, the parties have stipulated that the sand dump trucks and conical cement transport trucks do not need special permits to operate, Jt. Stip. ╤ 19, and that the trucks can reach speeds up to 55 miles per hour, Def.'s Mot. at 7. Plaintiff has attempted to overcome these facts by stating that while the speed limit may be between 55 and 75 miles per hour where its vehicles operate, in reality most vehicles travel from 70 to 80 miles per hour. Pl.'s App. at 10, ╤ 20. Plaintiff also asserts that the trucks can haul only 60-80% of their full load without a permit, despite their earn╜er stipulations to the contrary. Pl.'s Reply at 24.

In light of these facts, the court finds that plaintiff's trucks do not qualify under the off╜highway use exception. Plaintiff cannot prove that its vehicles were "specially de╜signed for the primary function of transport╜ing a particular type of load other than over the public highway ...." Treas. Reg. ╖ 48.4041-8(b)(2)(ii). Plaintiffs trucks here log 80% of their mileage over public high╜ways. DPFUF ╤ 13. Therefore, the trucks cannot be said to have been specially de╜signed for the extremes of offhighway use; instead, they were specially designed to car╜ry a load over several different types of terrain. Because the trucks were also de╜signed to carry their loads over public high╜ways, part (A) of the offhighway use excep╜tion is not met.

Even if plaintiffs trucks could meet the part (A) test, they do not meet the part (B) test. By clearly stating what factors to take into consideration under part (B) of the test, the drafters of the regulation have indicated a purpose to exclude that class of vehicles that can operate off the public highways, but can also be used on the public highways without special permits because they are not too slow, heavy, or wide to do so safely. Plaintiffs sand dump trucks and conical ce╜ment trucks fall within this excluded class.

For the foregoing reasons, defendant's mo╜tion for summary judgment as to the sand dump trucks and conical cement transport trucks with respect to the off-highway use exception is GRANTED.

C. Substantially Similar Treatment

Plaintiff argues that the court must find its vehicles exempt under the "equality doc╜trine" as set forth in Int'l Bias. Machs. Corp. v. United States, 170 Ct.Cl. 357, 343 F.2d 914 (Cl.Ct.1965). PL's Opp. at 47. Plaintiff argues that this court in UEC and Utilicorp, and this court and the district court in the Haliburton cases, have held that vehicles similar to those before the court now were exempt from the definition of highway vehi╜cle. Pl.'s Reply at 26. According to plaintiff, "If the government prevails in this proceed╜ing, it would give the competitors of plaintiff (who, with the IRS's blessing are not paying the identical excise tax) a significant competi╜tive advantage over plaintiff." Id .

Defendant argues that the reach of Int'l Bus. Machs. is very limited and does not apply here. Def.'s Reply at 24. According to defendant, Int'l Bus. Machs. only applies where: "(i) two or more taxpayers in direct economic competition have each applied for a ruling and only one has received a favorable ruling; and (ii) the taxpayer denied the fa╜vorable ruling is arguing that the Commis╜sioner abused his discretion under section 7805(b) by failing to apply a new legal posi╜tion only prospectively." Id. at 25. Because plaintiff never requested an IRS letter ruling that it was exempt from the excise taxes at issue here, Tr. at 66, defendant argues that it cannot rely on Int'l Bus. Machs. for recovery here. Def.'s Reply at 24.

In deciding a slightly different issue, this court recently stated that the scope of Int'l Bus. Machs. is as limited as defendant con╜tends. Vons, 51 Fed.Cl. at 10 (citing Knetsch v. United States, 172 Ct.Cl. 378, 348 F.2d 932, 940 n. 14 (1965)); Bornstein v. United States, 170 Ct.Cl. 576, 345 F.2d 558, 564 n. 2 (1965). Under those authorities, plaintiff would be required to show that it applied for a ruling, along with other similarly situated taxpayers, and that it was treated disparately in an abuse of discretion by the Commission╜er. Plaintiff here points to several letter rulings that it argues are contrary to the Service's position in respect to the excise taxes for plaintiff's vehicles, Pl.'s Opp. at 47-48, but admits that it did not apply for a letter ruling at the same time its competitors were applying for letter rulings. Tr. at 66. This fact is fatal to plaintiff's Int'l Bus. Machs. claim. Because plaintiff did not ap╜ply for a letter ruling with respect to its vehicles, it cannot now claim that the Service treated similarly situated competitors differently. For the foregoing reasons, the court DENIES plaintiff's motion for summary judgment as to the "equality doctrine."

III. Conclusion

For the foregoing reasons, defendant's Mo╜tion for Partial Summary Judgment is GRANTED as to the inapplicability of the mobile machinery exception and off-highway use exception to plaintiffs vehicles. Plain╜tiff's Cross-Motion for Partial Summary Judgment is DENIED. Defendant's Motion for Leave to File Amended Pages of Opening Brief is DENIED.

On or before February 14, 2003, the par╜ties shall file with the court a joint status report, or, if they cannot agree, separate status reports, proposing further proceedings in this matter.

IT IS SO ORDERED.

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