[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11850

____________________

AFFORDABLE BIO FEEDSTOCK, INC., 

AFFORDABLE BIO FEEDSTOCK OF PORT CHARLOTTE, 

LLC, 

Plaintiffs-Appellants,

versus

UNITED STATES OF AMERICA, 

 Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:19-cv-01835-PGB-DCI

____________________

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2 Opinion of the Court 21-11850

Before WILSON, BRANCH, and TJOFLAT, Circuit Judges.

TJOFLAT, Circuit Judge:

Affordable Bio Feedstock, Inc., and Affordable Bio Feedstock of Port Charlotte, LLC, (collectively “ABF”)1 appeal the District Court’s summary judgment denying their claim for reimbursement of “protest payments” made to the Internal Revenue 

Service (“IRS”) after the IRS claw-backed an alternative fuel tax 

credit it had previously given ABF. In support of its position, ABF

argues that federal courts may order the Government to pay plaintiffs money from the Federal Treasury based solely on equitable 

principles. Unfortunately for ABF, the Supreme Court foreclosed 

its arguments 32 years ago in Office of Personnel Management v. 

Richmond, 496 U.S. 414, 416, 110 S. Ct. 2465, 2467 (1990), when it 

held that “payments of money from the Federal Treasury are limited to those authorized by statute.” Accordingly, we affirm the 

District Court’s grant of summary judgment. 

I. 

ABF was a waste-to-energy company that acquired oil and 

food waste, or “brown grease,” from restaurants and processed it 

for use as alternative fuel. A provision of the tax code, 26 U.S.C. § 

4041(a)(2), imposes an excise tax for certain alternative fuels. 

1 Although ABF is technically two companies, we refer to them as one for the 

remainder of the opinion. 

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21-11850 Opinion of the Court 3

Taxpayers must register for this excise tax in accordance with IRS

regulations. 26 U.S.C. § 4101(a)(1). IRS regulations require taxpayers registering for § 4041(a)(2)’s excise tax to submit a Form 637 

application. 26 C.F.R. § 48.4101-1(e). Form 637 consists of a series 

of “activity letters” whereby registrants describe the activities they 

believe falls under the excise tax. Once a Form 637 application is 

submitted, an agent from the IRS’s Excise Tax Group performs an 

Initial Compliance Review (“ICR”) to determine whether to recommend approving or denying the taxpayer’s registration for the 

excise tax. The Chief of the Excise Tax Group, known as the District Director, then reviews the agent’s recommendation and decides whether to approve the Form 637 application, apply the alternative fuel excise tax, and register the applicant’s activity letter. 

Registering an activity letter for § 4041(a)(2)’s alternative 

fuel excise tax is essential to claim the alternative fuel excise tax 

credit authorized by 26 U.S.C. § 6427(e)(2) and defined by 26 U.S.C. 

§ 6426(d). § 2647(e)(4) (requiring registration under § 4101 before 

awarding § 2657(e)(2)’s alternative fuel tax credit). Section 6426(d) 

defines alternative fuels qualifying for the alternative fuel tax credit 

as alternative fuels “sold by the taxpayer for use as a fuel in a motor 

vehicle or motorboat, sold by the taxpayer for use as a fuel in aviation, or so used by the taxpayer.” § 6426(d)(1). This credit may 

only be used against the taxpayer’s alternative fuel excise tax liability. § 6426(a)(2). Should a refund made pursuant to § 6427(e)(2) 

constitute an “excessive amount,” the IRS can assess and collect 

that refund as if the claiming entity was liable for the alternative 

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4 Opinion of the Court 21-11850

fuel excise tax. 26 U.S.C. § 6206. An “excessive amount” is defined 

as the amount by which the refund exceeded the amount allowable 

for a refund. 26 U.S.C. § 6675(b). 

Activity letter registrants usually claim the § 6427(e)(2)’s alternative fuel excise tax credit by filing a Form 720 Quarterly Federal Excise Tax Return. However, an activity letter is only valid if 

the District Director “has issued a registration letter” and “the registration has not been revoked or suspended.” 26 C.F.R. § 48.4101-

1(a)(2). The District Director “must revoke or suspend the registration” of an activity letter if the District Director determines “at 

any time” that (i) the registrant’s alternative fuel activities do not 

qualify for registration and the registrant “has not corrected the deficiency within a reasonable period of time after notification by the 

district director;” (ii) the registrant used the activity letter registration to evade, attempt to evade, or postpone the imposition of the 

excise tax, or “to make a fraudulent claim for a credit or payment;” 

(iii) the registrant aided or abetted another in evading or attempting to evade the imposition of an excise tax or “in making a fraudulent claim for a credit or payment;” or (iv) the registrant “sold, 

leased, or otherwise allowed another person to use its registration.” 

26 C.F.R. § 48.101-1(i)(1). 

Here, ABF submitted its Form 637 applications to the IRS on 

May 29, 2013, and June 13, 2013, requesting activity letter registrations. The IRS agent assigned to conduct ABF’s ICRs then recommended that ABF’s applications for activity letter registrations be 

approved. Accordingly, the District Director approved the agent’s 

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21-11850 Opinion of the Court 5

recommendation and sent ABF signed letters informing ABF that 

the IRS had approved its activity letter registrations. 

These activity letter registrations remained valid until 2016, 

when ABF filed separate Form 8849s claiming refunds under the § 

2647’s alternative fuel excise tax credit. ABF claimed $423,315 for 

2015 and $42,112 for January 2016. The IRS paid these claims on 

March 22, 2016, and April 19, 2016, respectively. In October 2016, 

the IRS began auditing ABF for these claims. 

On January 25, 2018, the Chief of Estate, Gift, and Excise Tax 

Examination sent ABF signed letters revoking its activity letter registrations. On September 17, 2018, the IRS sought reimbursement 

of the paid alternative tax credits along with interest and penalties. 

ABF, who sold their assets to a third party in October 2017, 

returned “under protest” a portion of the paid tax credits totaling 

$51,397. ABF then initiated this action on September 23, 2019, 

seeking refunds for the above paid sums. On March 29, 2021, the 

District Court granted summary judgment in favor of the IRS. Affordable Bio Feedstock, Inc. v. United States, 529 F.Supp.3d 1298 

(M.D. Fla. 2021). ABF timely appealed. 

II.

We review grants of summary judgment de novo. Brown v. 

Nexus Bus. Sols., LLC, 29 F.4th 1315, 1317 (11th Cir. 2022). Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Id. (quoting Fed. R. Civ. P. 56(a)). 

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On summary judgment review, we view all evidence in “the light 

most favorable to the nonmoving party” and draw “all justifiable 

inferences in that party’s favor.” Id. at 1317–18 (quotation and quotation marks omitted).

III.

The parties have stipulated that whether ABF qualifies for 

the alternative fuel tax credit under the tax code is not at issue in 

this case and is not a basis for recovery. Instead, ABF argues that 

the IRS is equitably estopped from recovering the alternative fuel 

tax credits paid to ABF under § 6427(e)(2) because an IRS agent and 

the District Director both approved ABF’s activity letter registrations. Appellant Br. at 18–22. 

We need not address ABF’s arguments point by point.2 The 

sole issue before this Court is whether any court may order that 

funds be appropriated from the Federal Treasury based on equitable estoppel without specific authorization from Congress. And 

the Supreme Court answered that question with a resounding “no” 

32 years ago:

The Appropriations Clause of the Constitution, Art. 

I, § 9, cl. 7, provides that: “No Money shall be drawn 

from the Treasury, but in Consequence of 

2 The District Court did address ABF’s arguments point by point. Affordable 

Bio Feedstock, Inc., 529 F.Supp.3d at 1302–08. Although addressing these arguments is unnecessary for deciding the case, we see no problems with the 

District Court’s analysis. 

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21-11850 Opinion of the Court 7

Appropriations made by Law.” For the particular 

type of claim at issue here, a claim for money from 

the Federal Treasury, the Clause provides an explicit 

rule of decision. Money may be paid out only 

through an appropriation made by law; in other 

words, the payment of money from the Treasury 

must be authorized by a statute.

Richmond, 496 U.S. at 424, 110 S. Ct. at 2471. Nor does just any 

statute suffice:

The general appropriation for payment of judgments, 

in any event, does not create an all-purpose fund for 

judicial disbursement. A law that identifies the source 

of funds is not to be confused with the conditions prescribed for their payment. Rather, funds may be paid 

out only on the basis of a judgment based on a substantive right to compensation based on the express 

terms of a specific statute.

Id. at 432, 110 S. Ct. at 2475. The Supreme Court then concluded:

Whether there are any extreme circumstances that 

might support estoppel in a case not involving payment from the Treasury is a matter we need not address. As for monetary claims, it is enough to say that 

this Court has never upheld an assertion of estoppel 

against the Government by a claimant seeking public 

funds. In this context there can be no estoppel, for 

courts cannot estop the Constitution.

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Id. at 434, 110 S. Ct. at 2476. This Court has also clearly stated that 

the “Supreme Court has held that equitable estoppel is unavailable 

in a claim against the government for funds from the public treasury.” Shuford v. Fid. Nat’l Prop. & Cas. Ins. Co., 508 F.3d 1337, 

1342–43 (11th Cir. 2007) (citing Richmond, 496 U.S. at 424–34, 110 

S. Ct. at 2471–76).

Here, ABF seeks only to recover the money it already paid 

to the IRS. That ABF paid this money “under protest” is irrelevant. 

The only relevant fact is that this money is currently within the 

Federal Treasury, and so the IRS would have to withdraw money 

from the Federal Treasury to pay any adverse equitable judgments. 

Under Richmond, the Appropriation Clause’s “explicit rule of decision” for withdrawing funds from the Federal Treasury requires 

that “the payment of money from the Treasury must be authorized 

by a statute.” 496 U.S. at 424, 110 S. Ct. at 2471. ABF has waived

any argument that its activities qualified it for the alternative fuel 

tax credit under § 6426 and points to no other statute(s) as a potential basis for recovery. United States v. Campbell, 26 F.4th 860, 872 

(11th Cir. 2022) (en banc) (describing waiver as a matter of the 

party’s intent and holding “if a party affirmatively and intentionally 

relinquishes an issue, then courts must respect that decision”). 

Therefore, ABF cannot recover monetary damages from the Federal Treasury. 

The judgment of the District Court is 

AFFIRMED.

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