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April 19, 1996

BODINE OIL INC., Plaintiff,

The opinion of the court was delivered by: ORLOFSKY

 ORLOFSKY, District Judge:

 Plaintiff, Bodine Oil, Inc. ("Bodine"), filed this action seeking a refund of certain excise taxes on diesel fuel allegedly paid to the supplier from which it purchased the fuel. This fuel was later resold by Bodine as home heating oil, which is a nontaxable use. *fn1" The United States has moved for summary judgment, contending that Bodine is not entitled to a refund of these taxes because, under the relevant statute, only the "ultimate purchaser" of the fuel, which it argues is the homeowner, may seek such a refund.

 I. Facts and Procedural History

 Bodine is in the business of supplying home heating oil to consumers. During the relevant time period, *fn2" Bodine contends that it never sold any of the diesel fuel which it bought and paid tax on, except as tax-exempt home heating oil. Complaint P 8. The government, at least for purposes of summary judgment, does not contest Bodine's claim. Nevertheless, the government argues that Bodine is not entitled to any refund of the excise taxes paid.

 Changes in the taxation of diesel fuel, which went into effect on April 1, 1988, made the producer, rather than the retailer, responsible for the collection of the diesel fuel excise tax. *fn3" Retailers such as Bodine could no longer purchase diesel fuel from the refinery free of tax. However, if the retailer and the producer of the diesel fuel met certain registration requirements to be specified by the Secretary of the Treasury, *fn4" and the fuel was ultimately to be used for a nontaxable purpose, such as home heating oil, then an exception was allowed, and the producer was not required to collect the tax. The regulations in effect during the relevant time period required the producer to collect the excise tax, unless the retailer had secured a "Form 637" certificate of exemption from the IRS.

 On May 25, 1988, Bodine applied for a "Form 637" certificate from the Internal Revenue Service ("IRS"), which was issued on September 26, 1988. Memorandum in Support of Motion for Summary Judgment ("USA's Memo") at 1.

 Sometime in mid-1990, the IRS sent follow-up questionnaires to certificate holders, including Bodine, which Bodine claims never to have received. Plaintiff's Brief in Opposition to Defendant's Motion for Summary Judgment ("Bodine's Brief") at 2. These questionnaires requested information relevant to the plaintiff's continued compliance with "Form 637" requirements. USA's Memo at I. When it did not receive the requested information, the IRS revoked Bodine's "Form 637" certificate on June 25, 1991. Bodine reapplied for a certificate on October 10, 1991, and its application was denied, allegedly because certain necessary information was still lacking. Id.

 At an unspecified time between the Fall of 1991 and November, 1992, the IRS conducted an audit of Bodine which revealed that Bodine had failed to file certain income and employment tax returns. Bodine's Brief at 2. As a result of this discovery, the plaintiff's "renewed" application for a "Form 637" certificate, made on November 6, 1992, was again denied by the IRS. USA's Memo at 1. According to the United States, it is the policy of the IRS to deny certificates to entities who are delinquent in filing any federal tax forms, or in paying any federal taxes. Id. On January 19, 1993, the IRS District Director upheld the denial of the certificate to Bodine Oil. Id. at 2.

 Bodine subsequently filed its delinquent tax returns and, reapplied for a "Form 637" certificate, which was once again granted, effective with the first calendar quarter of 1994. During the twenty-eight month period in which Bodine was without a valid "Form 637" certificate, it claims to have paid its suppliers an extra 20.5 cents per gallon of diesel fuel on all its purchases, representing excise taxes. Bodine's Brief at 2.

 Bodine filed several administrative claims for refunds, the first of which was denied on April 20, 1995. Subsequent claims for refunds remained unanswered more than six months after Bodine had filed those claims. Complaint at 3. On June 19, 1995, Bodine filed its complaint in this Court. Id. On March 25, 1996, the United States moved for summary judgment in its favor and against Bodine.

 II. Standard for Summary Judgment

 A party seeking summary judgment must "show that there is no genuine issue as to any material fact and that [he] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). See also Hersh v. Allen Products, Co., 789 F.2d 230, 232 (3d Cir. 1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir. 1983). The district court must grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1996 U.S. App. LEXIS 6565, *17, No. 95-1399 (3d Cir. April 1, 1996). In deciding whether there is a disputed issue of material fact the Court must draw all inferences from the underlying facts in favor of the non-moving party. See Hancock Indus. v. Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987) (citation omitted); Pollock v. American Telephone & Telegraph Long Lines, 794 F.2d 860, 864 (3d Cir. 1986).

 Once the moving party has properly supported its motion, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Nonetheless, the moving party on the motion bears the ultimate burden of demonstrating the absence of a genuine issue of ...

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