§40A — Title 26 Internal Revenue Code | U.S. Code

§40A Biodiesel and renewable diesel used as fuel

Title 26 › Subtitle Subtitle A— - Income Taxes › Chapter CHAPTER 1— - NORMAL TAXES AND SURTAXES › Subchapter Subchapter A— - Determination of Tax Liability › Part PART IV— - CREDITS AGAINST TAX › Subpart Subpart D— - Business Related Credits › § 40A

Last updated Apr 6, 2026|Official source

Summary

Gives tax credits to people and businesses that make, sell, or use biodiesel or renewable diesel as fuel. The credit equals three parts added together: a $1.00 per gallon credit when biodiesel is used to make a biodiesel/diesel fuel blend that is sold or used as a fuel in a trade or business; a $1.00 per gallon credit when biodiesel that is not mixed with diesel is used as a fuel in a trade or business or sold at retail and put into a vehicle tank; and, for an eligible small agri-biodiesel producer, a $0.20 per gallon credit for qualifying agri-biodiesel they produce and sell or use as fuel. Small-producer credit for any producer is capped at 15,000,000 gallons. To get the credits, taxpayers must have a written certification from the biodiesel producer or importer showing the product and the percent of biodiesel and agri-biodiesel. Credits must be reduced if another tax benefit under sections 6426 or 6427(e) applies. No credit is allowed for sales or uses after December 31, 2024, except the small agri-biodiesel credit may apply through December 31, 2026. Fuel made outside the United States for use outside the United States is not eligible. Basic meanings and other rules: “Biodiesel” means certain plant- or animal‑based monoalkyl esters that meet EPA registration rules and ASTM D6751. “Agri-biodiesel” means biodiesel made only from virgin oils and animal fats. “Renewable diesel” is biomass-derived liquid fuel that meets EPA rules and ASTM D975 or D396 (or an equivalent standard) and is treated like biodiesel for these credits, but the small agri-biodiesel credit does not apply to renewable diesel. If biodiesel is separated from a mixture or used other than as fuel, or if a retail sale is mixed or used other than as fuel, the law treats that as if a tax under section 4081 applied and penalties can follow. The tax agency can make rules to apply limits and prevent abuse, and controlled-group and common-control rules apply to the 15,000,000- and 60,000,000-gallon limits.

Title 26, §40A

Internal Revenue Code — Source: USLM XML via OLRC

(a)For purposes of section 38, the biodiesel fuels credit determined under this section for the taxable year is an amount equal to the sum of—

(1)the biodiesel mixture credit, plus

(2)the biodiesel credit, plus

(3)in the case of an eligible small agri-biodiesel producer, the small agri-biodiesel producer credit.

(b)For purposes of this section—

(1)(A)The biodiesel mixture credit of any taxpayer for any taxable year is $1.00 for each gallon of biodiesel used by the taxpayer in the production of a qualified biodiesel mixture.

(B)The term “qualified biodiesel mixture” means a mixture of biodiesel and diesel fuel (as defined in section 4083(a)(3)), determined without regard to any use of kerosene, which—

(i)is sold by the taxpayer producing such mixture to any person for use as a fuel, or

(ii)is used as a fuel by the taxpayer producing such mixture.

(C)Biodiesel used in the production of a qualified biodiesel mixture shall be taken into account—

(i)only if the sale or use described in subparagraph (B) is in a trade or business of the taxpayer, and

(ii)for the taxable year in which such sale or use occurs.

(D)No credit shall be allowed under this section with respect to any casual off-farm production of a qualified biodiesel mixture.

(2)(A)The biodiesel credit of any taxpayer for any taxable year is $1.00 for each gallon of biodiesel which is not in a mixture with diesel fuel and which during the taxable year—

(i)is used by the taxpayer as a fuel in a trade or business, or

(ii)is sold by the taxpayer at retail to a person and placed in the fuel tank of such person’s vehicle.

(B)No credit shall be allowed under subparagraph (A)(i) with respect to any biodiesel which was sold in a retail sale described in subparagraph (A)(ii).

(3)No credit shall be allowed under paragraph (1) or (2) of subsection (a) unless the taxpayer obtains a certification (in such form and manner as prescribed by the Secretary) from the producer or importer of the biodiesel which identifies the product produced and the percentage of biodiesel and agri-biodiesel in the product.

(4)(A)The small agri-biodiesel producer credit of any eligible small agri-biodiesel producer for any taxable year is 20 cents for each gallon of qualified agri-biodiesel production of such producer.

(B)For purposes of this paragraph, the term “qualified agri-biodiesel production” means any agri-biodiesel which is produced by an eligible small agri-biodiesel producer in a manner which complies with the requirements under section 45Z(f)(1)(A)(iii), and which during the taxable year—

(i)is sold by such producer to another person—

(I)for use by such other person in the production of a qualified biodiesel mixture in such other person’s trade or business (other than casual off-farm production),

(II)for use by such other person as a fuel in a trade or business, or

(III)who sells such agri-biodiesel at retail to another person and places such agri-biodiesel in the fuel tank of such other person, or

(ii)is used or sold by such producer for any purpose described in clause (i).

(C)The qualified agri-biodiesel production of any producer for any taxable year shall not exceed 15,000,000 gallons.

(D)The credit determined under this paragraph with respect to any gallon of fuel shall be in addition to any credit determined under section 45Z with respect to such gallon of fuel.

(c)The amount of the credit determined under this section with respect to any biodiesel shall be properly reduced to take into account any benefit provided with respect to such biodiesel solely by reason of the application of section 6426 or 6427(e).

(d)For purposes of this section—

(1)The term “biodiesel” means the monoalkyl esters of long chain fatty acids derived from plant or animal matter which meet—

(A)the registration requirements for fuels and fuel additives established by the Environmental Protection Agency under section 211 of the Clean Air Act (42 U.S.C. 7545), and

(B)the requirements of the American Society of Testing and Materials D6751.

(2)The term “agri-biodiesel” means biodiesel derived solely from virgin oils, including esters derived from virgin vegetable oils from corn, soybeans, sunflower seeds, cottonseeds, canola, crambe, rapeseeds, safflowers, flaxseeds, rice bran, mustard seeds, and camelina, and from animal fats.

(3)(A)If—

(i)any credit was determined under this section with respect to biodiesel used in the production of any qualified biodiesel mixture, and

(ii)any person—

(I)separates the biodiesel from the mixture, or

(II)without separation, uses the mixture other than as a fuel,

(B)If—

(i)any credit was determined under this section with respect to the retail sale of any biodiesel, and

(ii)any person mixes such biodiesel or uses such biodiesel other than as a fuel,

(C)If—

(i)any credit was determined under subsection (a)(3), and

(ii)any person does not use such fuel for a purpose described in subsection (b)(4)(B),

(D)All provisions of law, including penalties, shall, insofar as applicable and not inconsistent with this section, apply in respect of any tax imposed under subparagraph (A) or (B) as if such tax were imposed by section 4081 and not by this chapter.

(4)Under regulations prescribed by the Secretary, rules similar to the rules of subsection (d) of section 52 shall apply.

(5)No credit shall be determined under this section with respect to any biodiesel which is produced outside the United States for use as a fuel outside the United States. For purposes of this paragraph, the term “United States” includes any possession of the United States.

(e)For purposes of this section—

(1)The term “eligible small agri-biodiesel producer” means a person who, at all times during the taxable year, has a productive capacity for agri-biodiesel not in excess of 60,000,000 gallons.

(2)For purposes of the 15,000,000 gallon limitation under subsection (b)(4)(C) and the 60,000,000 gallon limitation under paragraph (1), all members of the same controlled group of corporations (within the meaning of section 267(f)) and all persons under common control (within the meaning of section 52(b) but determined by treating an interest of more than 50 percent as a controlling interest) shall be treated as 1 person.

(3)In the case of a partnership, trust, S corporation, or other pass-thru entity, the limitations contained in subsection (b)(4)(C) and paragraph (1) shall be applied at the entity level and at the partner or similar level.

(4)For purposes of this subsection, in the case of a facility in which more than 1 person has an interest, productive capacity shall be allocated among such persons in such manner as the Secretary may prescribe.

(5)The Secretary may prescribe such regulations as may be necessary—

(A)to prevent the credit provided for in subsection (a)(3) from directly or indirectly benefiting any person with a direct or indirect productive capacity of more than 60,000,000 gallons of agri-biodiesel during the taxable year, or

(B)to prevent any person from directly or indirectly benefiting with respect to more than 15,000,000 gallons during the taxable year.

(6)(A)(i)In the case of a cooperative organization described in section 1381(a), any portion of the credit determined under subsection (a)(3) for the taxable year may, at the election of the organization, be apportioned pro rata among patrons of the organization on the basis of the quantity or value of business done with or for such patrons for the taxable year.

(ii)An election under clause (i) for any taxable year shall be made on a timely filed return for such year. Such election, once made, shall be irrevocable for such taxable year. Such election shall not take effect unless the organization designates the apportionment as such in a written notice mailed to its patrons during the payment period described in section 1382(d).

(B)(i)The amount of the credit not apportioned to patrons pursuant to subparagraph (A) shall be included in the amount determined under subsection (a)(3) for the taxable year of the organization.

(ii)The amount of the credit apportioned to patrons pursuant to subparagraph (A) shall be included in the amount determined under such subsection for the first taxable year of each patron ending on or after the last day of the payment period (as defined in section 1382(d)) for the taxable year of the organization or, if earlier, for the taxable year of each patron ending on or after the date on which the patron receives notice from the cooperative of the apportionment.

(iii)If the amount of the credit of the organization determined under such subsection for a taxable year is less than the amount of such credit shown on the return of the organization for such year, an amount equal to the excess of—

(I)such reduction, over

(II)the amount not apportioned to such patrons under subparagraph (A) for the taxable year,

(f)For purposes of this title—

(1)Except as provided in paragraph (2), renewable diesel shall be treated in the same manner as biodiesel.

(2)Subsection (b)(4) shall not apply with respect to renewable diesel.

(3)The term “renewable diesel” means liquid fuel derived from biomass which meets—

(A)the registration requirements for fuels and fuel additives established by the Environmental Protection Agency under section 211 of the Clean Air Act (42 U.S.C. 7545), and

(B)the requirements of the American Society of Testing and Materials D975 or D396, or other equivalent standard approved by the Secretary.

(g)This section shall not apply to any sale or use after December 31, 2024 (or, in the case of the small agri-biodiesel producer credit, any sale or use after December 31, 2026).

Notes & Related Subsidiaries

Editorial Notes

Codification Pub. L. 110–234 and Pub. L. 110–246 made identical

Amendments

to this section. The

Amendments

by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246.

Amendments

2025—Subsec. (b)(4)(A). Pub. L. 119–21, § 70521(j)(1)(A)(i), substituted “20 cents” for “10 cents”. Subsec. (b)(4)(B). Pub. L. 119–21, § 70521(j)(1)(A)(ii), inserted “in a manner which complies with the requirements under section 45Z(f)(1)(A)(iii)” after “produced by an eligible small agri-biodiesel producer”. Subsec. (b)(4)(D). Pub. L. 119–21, § 70521(j)(1)(A)(iii), added subpar. (D). Subsec. (g). Pub. L. 119–21, § 70521(j)(1)(B), inserted “(or, in the case of the small agri-biodiesel producer credit, any sale or use after

December 31, 2026)” after “

December 31, 2024”. 2022—Subsec. (d)(1). Pub. L. 117–169, § 13203(c)(1), inserted “or 40B” after “determined under section 40” in concluding provisions. Subsec. (f)(4). Pub. L. 117–169, § 13203(c)(2), struck out par. (4) which defined renewable diesel to include certain aviation fuel. Subsec. (g). Pub. L. 117–169, § 13201(a), substituted “

December 31, 2024” for “

December 31, 2022”. 2019—Subsec. (g). Pub. L. 116–94 substituted “

December 31, 2022” for “

December 31, 2017”. 2018—Subsec. (g). Pub. L. 115–123 substituted “

December 31, 2017” for “

December 31, 2016”. 2015—Subsec. (g). Pub. L. 114–113 substituted “

December 31, 2016” for “

December 31, 2014”. 2014—Subsec. (g). Pub. L. 113–295 substituted “

December 31, 2014” for “

December 31, 2013”. 2013—Subsec. (g). Pub. L. 112–240 substituted “

December 31, 2013” for “

December 31, 2011”. 2010—Subsec. (g). Pub. L. 111–312 substituted “

December 31, 2011” for “

December 31, 2009”. 2008—Subsec. (b)(1)(A), (2)(A). Pub. L. 110–343, § 202(b)(1), substituted “$1.00” for “50 cents”. Subsec. (b)(3) to (5). Pub. L. 110–343, § 202(b)(3)(A), redesignated pars. (4) and (5) as (3) and (4), respectively, and struck out heading and text of former par. (3). Text read as follows: “In the case of any biodiesel which is agri-biodiesel, paragraphs (1)(A) and (2)(A) shall be applied by substituting ‘$1.00’ for ‘50 cents’.” Subsec. (d)(1). Pub. L. 110–246, § 15321(f)(1), inserted concluding provisions. Subsec. (d)(2). Pub. L. 110–343, § 202(f), substituted “mustard seeds, and camelina” for “and mustard seeds”. Subsec. (d)(3)(C)(ii). Pub. L. 110–343, § 202(b)(3)(D), substituted “subsection (b)(4)(B)” for “subsection (b)(5)(B)”. Subsec. (d)(5). Pub. L. 110–343, § 203(b), added par. (5). Subsec. (e)(2), (3). Pub. L. 110–343, § 202(b)(3)(C), substituted “subsection (b)(4)(C)” for “subsection (b)(5)(C)”. Subsec. (f)(2). Pub. L. 110–343, § 202(b)(3)(B), amended heading and text of par. (2) generally. Prior to amendment, text read as follows: “(A) Rate of credit.—Subsections (b)(1)(A) and (b)(2)(A) shall be applied with respect to renewable diesel by substituting ‘$1.00’ for ‘50 cents’. “(B) Nonapplication of certain credits.—Subsections (b)(3) and (b)(5) shall not apply with respect to renewable diesel.” Subsec. (f)(3). Pub. L. 110–343, § 202(d), in introductory provisions, struck out “(as defined in section 45K(c)(3))” after “derived from biomass” and, in concluding provisions, inserted at end “Such term does not include any fuel derived from coprocessing biomass with a feedstock which is not biomass. For purposes of this paragraph, the term ‘biomass’ has the meaning given such term by section 45K(c)(3).” Pub. L. 110–343, § 202(c)(1), (2), in introductory provisions, substituted “liquid fuel” for “diesel fuel” and struck out “using a thermal depolymerization process” before “which meets—”. Pub. L. 110–246, § 15321(f)(2), inserted concluding provisions. Subsec. (f)(3)(B). Pub. L. 110–343, § 202(c)(3), inserted “, or other equivalent standard approved by the Secretary” before period at end. Subsec. (f)(4). Pub. L. 110–343, § 202(e), added par. (4). Subsec. (g). Pub. L. 110–343, § 202(a), substituted “

December 31, 2009” for “

December 31, 2008”. 2005—Pub. L. 109–58, § 1346(b)(1), inserted “and renewable diesel” after “Biodiesel” in section catchline. Subsec. (a). Pub. L. 109–58, § 1345(a), reenacted heading without change and amended text of subsec. (a) generally. Prior to amendment, text read as follows: “For purposes of section 38, the biodiesel fuels credit determined under this section for the taxable year is an amount equal to the sum of— “(1) the biodiesel mixture credit, plus “(2) the biodiesel credit.” Subsec. (b). Pub. L. 109–58, § 1345(d)(2), substituted “, biodiesel credit, and small agri-biodiesel producer credit” for “and biodiesel credit” in heading. Subsec. (b)(4). Pub. L. 109–58, § 1345(d)(1), substituted “paragraph (1) or (2) of subsection (a)” for “this section”. Subsec. (b)(5). Pub. L. 109–58, § 1345(b), added par. (5). Subsec. (b)(5)(B). Pub. L. 109–135 struck out “(determined without regard to the last sentence of subsection (d)(2))” after “any agri-biodiesel” in introductory provisions. Subsec. (d)(3)(C), (D). Pub. L. 109–58, § 1345(d)(3), added subpar. (C) and redesignated former subpar. (C) as (D). The words following “subsection (b)(5)(B),” in subpar. (C) are shown as a flush provision notwithstanding directory language showing them as part of cl. (ii), to reflect the probable intent of Congress. Subsec. (e). Pub. L. 109–58, § 1345(c), added subsec. (e). The words following “subparagraph (A) for the taxable year,” in subsec. (e)(6)(B)(iii) are shown as a flush provision notwithstanding directory language showing them as part of subcl. (II), to reflect the probable intent of Congress. Former subsec. (e) redesignated (f). Pub. L. 109–58, § 1344(a), substituted “2008” for “2006”. Subsec. (f). Pub. L. 109–58, § 1346(a), added subsec. (f). Former subsec. (f) redesignated (g). Pub. L. 109–58, § 1345(c), redesignated subsec. (e) as (f). Subsec. (g). Pub. L. 109–58, § 1346(a), redesignated subsec. (f) as (g).

made by this section [amending this section and section 6426 and 6427 of this title] shall apply to fuel produced, and sold or used, after

December 31, 2008. “(2) Coproduction of renewable diesel with petroleum feedstock.—The amendment made by subsection (d) [amending this section] shall apply to fuel produced, and sold or used, after the date of the enactment of this Act [Oct. 3, 2008].” Amendment by section 203(b) of Pub. L. 110–343 applicable to claims for credit or payment made on or after

May 15, 2008, see section 203(d) of Pub. L. 110–343, set out as a note under section 40 of this title. Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective

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