SECTION 1. PURPOSE

This notice sets forth interim guidance, pending the issuance of regulations, relating to the new fuel cell motor vehicle credit under § 30B(a)(1) and (b) of the Internal Revenue Code. Specifically, this notice

not fail to satisfy the requirements of § 411(d)(6) by reason of the amendment.

However, with respect to a particular plan provision, relief under § 1107 of PPA ’06 applies only to the first plan amendment that implements the post-PPA ’06 applicable interest rate and/or post-PPA ’06 applicable mortality table with respect to the provision, and any subsequent amendment with respect to the provision will not be treated as adopted “pursuant to” statutory provisions under PPA ’06, as required for relief under § 1107 of PPA ’06. For purposes of determining whether an amendment that implements the post-PPA ’06 applicable interest rate and/or post-PPA ’06 applicable mortality table with respect to a particular plan provision is the first such amendment, amendments adopted on or before June 30, 2008, are disregarded. Thus, if a plan amendment is adopted that provides that the amount payable under an optional form of benefit that is subject to the minimum present value requirements of § 417(e)(3) is calculated in the manner described in Q&A–16 of this notice, and the plan is subsequently amended (during the period established in § 1107 of PPA ’06) so that the amount payable is calculated without reference to the pre-PPA ’06 applicable mortality table and pre-PPA ’06 applicable interest rate, the relief under § 1107 of PPA ’06 will apply with respect to the subsequent amendment only if the initial amendment was adopted on or before June 30, 2008. Q–18. Does the relief under § 1107 of PPA ’06, as described in Rev. Rul. 2007–67 and this notice, apply to a plan amendment that replaces a plan reference to the pre-PPA ’06 applicable mortality table and/or pre-PPA ’06 applicable interest rate with a reference to the post-PPA ’06 applicable mortality table and/or post-PPA ’06 applicable interest rate, without regard to whether § 302 of PPA ’06 requires such amendment?

A–18. The relief under § 1107 of PPA ’06, as described in Rev. Rul. 2007–67 and this notice, applies to an amendment to a plan that is subject to § 401(a)(11) and that replaces a plan reference to the pre-PPA ’06 applicable mortality table and/or pre-PPA ’06 applicable interest rate with a reference to the post-PPA ’06 applicable mortality table and/or post-PPA ’06 applicable interest

rate, without regard to whether § 302 of PPA ’06 requires such amendment. For example, if a plan calculates the amount of an optional form of benefit that is not subject to the minimum present value requirements of § 417(e)(3) by reference to the pre-PPA ’06 applicable mortality table and/or pre-PPA ’06 applicable interest rate and the plan is amended, pursuant to an amendment adopted during the period established in § 1107(b)(2)(A) of PPA ’06, so that it calculates the amount of the optional form of benefit by reference to the post-PPA ’06 applicable mortality table and/or post-PPA ’06 applicable interest rate, the plan will not fail to satisfy the requirements of § 411(d)(6) by reason of the amendment.

V. GAP-PERIOD EARNINGS

The final regulations (T.D. 9324, 2007–22 I.R.B. 1302) under § 402(g), published in the Federal Register (72 FR 21103) on April 30, 2007, provide that the gap-period earnings must be included with the distribution of excess deferrals to the extent the employee is or would be credited with an allocable gain or loss on those excess deferrals for the gap period, if the total amount were to be distributed. This gap-period earnings rule applies to both pre-tax excess deferrals and excess deferrals that are designated Roth contributions. The effective date for the rule on gap-period earnings is taxable years beginning on or after January 1, 2007.

Section 5.04 of Rev. Proc. 2007–44, 2007–28 I.R.B. 54, generally requires an interim plan amendment to be adopted by the time described in section 5.05 of the revenue procedure when there is a statutory or regulatory change with respect to plan qualification requirements that will impact provisions of the written plan document.

Q–19. Is a plan restatement submitted to the Service in Cycle B (February 1, 2007, through January 31, 2008) or Cycle C (February 1, 2008, through January 31, 2009) required to provide for the inclusion of gap-period earnings in the distribution of excess deferrals?

A–19. Yes. As described in section 12.03 of Rev. Proc. 2007–44, a restated plan submitted to the Service in Cycle B or Cycle C is required to provide for the distribution of gap-period earnings. A plan

2008–12 I.R.B. 642 March 24, 2008

Accordingly, until either the Environmental Protection Agency issues regulations or future guidance issued by the Service provides otherwise (whichever occurs first), any vehicle having a gross vehicle weight of more than 8,500 pounds will not be treated as a passenger automobile or light truck for purposes of this notice.

(2) City Fuel Economy . The term “city fuel economy” has the meaning prescribed in 40 CFR § 600.002–85(11). If fuel is stored on board a fuel cell motor vehicle as hydrogen and not in a form that requires reformation prior to use, city fuel economy is determined by reference to the consumption of hydrogen. If fuel is stored on board a fuel cell motor vehicle in a form that requires reformation prior to use, city fuel economy is determined by reference to the consumption of such fuel.

(3) Gasoline Gallon Equivalent . In the case of a motor vehicle that does not use gasoline, the 2002 model year city fuel economy is determined on a gasoline-gallon-equivalent basis. If fuel is stored on board a fuel cell motor vehicle as hydrogen and not in a form that requires reformation prior to use, the gasoline gallon equivalent for the 2002 model year city fuel economy is determined by converting miles per gallon of gasoline into miles per kilogram of hydrogen at a conversion ratio of 0.98 mile per kilogram of hydrogen for each mile per gallon of gasoline. Thus, for example, the 2002 model year city fuel economy for a hydrogen-fueled passenger automobile in the 7,000 to 8,500 pounds vehicle inertia weight class is 11.1 miles per kilogram of hydrogen (0.98 x 11.3 (the 2002 model year city fuel economy in miles per gallon of gasoline)). If fuel (other than gasoline) is stored on board a fuel cell motor vehicle in a form that requires reformation prior to use, the gasoline gallon equivalent for the 2002 model year city fuel economy may be obtained from the Environmental Protection Agency, Office of Transportation and Air Quality at the following address:

provides procedures for a vehicle manufacturer (or, in the case of a foreign vehicle manufacturer, its domestic distributor) to certify to the Internal Revenue Service (Service) both:

(1) that a vehicle of a particular make, model, and model year meets certain requirements that must be satisfied to claim the new qualified fuel cell motor vehicle credit under § 30B(a)(1) and (b); and

(2) the amount of the credit allowable with respect to that vehicle.

This notice also provides guidance to taxpayers who purchase vehicles regarding the conditions under which they may rely on the vehicle manufacturer’s (or, in the case of a foreign vehicle manufacturer, its domestic distributor’s) certification in determining whether a credit is allowable with respect to the vehicle and the amount of the credit. The Service and the Treasury Department expect that the regulations will incorporate the rules set forth in this notice.