127 T.C. No. 7



                  UNITED STATES TAX COURT



MEDICAL TRANSPORTATION MANAGEMENT CORPORATION, Petitioner v.
        COMMISSIONER OF INTERNAL REVENUE, Respondent

          ZUNI TRANSPORTATION, INC., Petitioner v.
        COMMISSIONER OF INTERNAL REVENUE, Respondent



  Docket Nos. 10699-04, 10700-04.   Filed September 19, 2006.



       Ps operated paratransit services during the
  taxable years in question. Ps used sedans and vans to
  provide transportation to their clients. Ps’ service
  was exclusively provided to disabled persons. The
  routes Ps’ drivers traveled were determined with
  respect to daily manifests generated every evening that
  accommodated the transportation needs of their clients.
  Ps claimed a credit under sec. 34, I.R.C., for gasoline
  taxes paid under sec. 4081, I.R.C. R asserted
  deficiencies denying them the sec. 34, I.R.C. credit.
  R denied the credit because according to R’s notice of
  deficiency, Ps’ service did not meet the requirements
  under sec. 6421, I.R.C., which sec. 34, I.R.C. cross-
  references. In order to qualify for the credit, Ps
  must demonstrate under sec. 6421, I.R.C., that (1) Ps
  provided transportation in an “automobile bus”, (2) Ps’
  transportation was available to the general public, and
  (3) Ps’ transportation was scheduled along regular
  routes.
                                - 2 -

          Held: Ps fail to meet the requirements under
     section 6421, I.R.C. Ps’ sedans do not qualify as a
     “bus”. Even though Ps’ vans may potentially qualify, Ps
     were unable to produce any evidence that quantifies how
     many gallons of gasoline are attributable to each type
     of vehicle.

          Held, further, Ps’ service was not scheduled along
     regular routes.



     Jose A. Saavedra, for petitioners.

     Justin L. Campolieta, for respondent.



                               OPINION


     GOEKE, Judge:    Respondent determined the following

deficiencies in petitioners’ Federal income tax:

Medical Transportation Management Corp. - docket No. 10699-04

               Year                     Deficiency

               1998                     $58,673
               1999                      62,000

Zuni Transportation, Inc. - docket No. 10700-04

               Year                     Deficiency

               1998                     $32,758
               1999                      21,852
                               - 3 -

     The issue in this case is petitioners’ entitlement to an

income tax credit under section 34(a)(2) for gasoline excise tax

refundable with respect to certain uses under section 6421.1    We

hold that petitioners are not entitled to the credit.

                            Background

     Petitioners are for-profit Florida corporations with their

principal places of business and mailing addresses in Miami,

Florida, at the time their petitions were filed.   During the 1998

and 1999 taxable years, petitioners provided paratransit services

for the physically and mentally disabled within Miami-Dade

County, Florida, and portions of southern Broward County,

Florida.   The services petitioners provided were in fulfillment

of their duties under a contract with Cosmis Mobility Services,

Inc. (Cosmis).   Cosmis is the transportation services broker for

Miami-Dade County.   Cosmis was under contract with the Metro-Dade

Transit Authority (Transit Authority) to obtain transportation

for the physically and mentally disabled to meet the requirements

of the Americans With Disabilities Act of 1990 (ADA), Pub. L.

101-336, 104 Stat. 327.   Petitioners had no contractual

relationship with the Transit Authority.

     Petitioners provided paratransit services exclusively

through the use of vans and sedans with seating capacities of


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
                                - 4 -

fewer than 20 adults, including the driver.   Petitioners provided

no evidence which permits the allocation of their gasoline usage

between sedans and vans.

     Petitioners’ paratransit services were only available to

members of the general public who were certified as disabled

under the ADA.    The vast majority of petitioners’ passengers were

individuals requiring transportation within Miami-Dade County.

     Disabled passengers requiring paratransit services within

Miami-Dade County could either make a reservation or set up a

subscription.    A reservation entailed a one-time ride between two

points.   Passengers were required to place the reservation at

least 24 hours in advance, as well as designate the pickup and

dropoff locations, and request a date and time for travel.   A

subscription service was available if the same trip was taken at

the same day and time, at least once a week, week after week.

For example, an individual who worked at a particular site for

set days and times would obtain a subscription to be picked up

and dropped off at the worksite, and picked up and dropped off at

home, for the days of the week he or she selected, for the weeks

he or she selected.   Once a subscription was in place, it was no

longer necessary for passengers to phone ahead and reserve

transportation.   Subscription service riders were also initially

required to designate the initial pickup and dropoff locations

and times.   On any given day of travel, petitioners might have
                               - 5 -

been required to provide “on-demand service” to passengers who

were not listed in the original manifest but for medical reasons

required immediate transportation.

     Prior to each day’s operation, Cosmis would obtain the

necessary pickup information for each prospective passenger.

Petitioners’ contract with Cosmis required that petitioners

maintain a listing of every trip dispatched and delivered.

Cosmis would schedule these rides at least the night before the

ride and download the information to petitioners before the

travel day.   The information was set out in a daily travel

manifest containing the specified schedule to be followed and

used exclusively for that specific day.    A new daily manifest was

generated for each new travel day.     Typical daily manifests would

contain both reservation and subscription passengers.    For each

travel day, the daily manifest would contain the specific

locations and times of the pickups and dropoffs.    The information

on daily manifests was subject to change from day-to-day based on

daily passenger reservations and subscriptions.    A daily manifest

might or might not have included a stop that had been included on

a previous or subsequent daily manifest.    The specific routes

traveled and schedules followed by petitioners’ sedans and vans

were derived from passenger subscriptions and daily reservations.

The manifests did not contain the specific routes to be followed;

the manifests only listed the names of the passengers and the
                                - 6 -

times and locations of passengers’ pickups and dropoffs.     The

drivers of the paratransit vehicles were not required to follow

any particular route in servicing a run.

     For the 1998 and 1999 taxable years, petitioner Medical

Transportation Management Corp. (MTMC) claimed income tax credits

of $58,673 and $62,000, respectively, for excise taxes it paid on

gasoline.   For the same taxable years, petitioner Zuni

Transportation, Inc. (Zuni), claimed income tax credits of

$32,758 and $21,852, respectively.      On March 25, 2004, respondent

timely mailed separate notices of deficiency denying petitioners

the entire gasoline credit amount, and provided the following

identical explanation:

     It is determined that you do not meet the requirements
     for the fuel credit for gasoline under section 6421(a)
     of the Internal Revenue Code because you did not
     operate qualified buses on scheduled or fixed routes,
     and the buses were not available to the general public.

     Petitioners filed separate petitions with this Court seeking

a redetermination.   In their respective petitions, petitioners

asserted that they met all of the requirements set forth in

section 6421(b) and therefore were entitled to the income tax

credit under section 34(a).

                              Discussion

I.   Background on Section 34 Credit

     Section 34 provides a credit against tax for the amount of

excise taxes included in the price of gasoline to the ultimate
                                      - 7 -

purchaser of gasoline used on a farm for farming purposes, for

other off-highway business use, by local transit systems, and by

the operators of intercity, local, or school buses.                   See secs.

34, 6420, 6421.

     Section 34(a) provides in relevant part:

               SEC. 34(a) General Rule.--There shall be
          allowed as a credit against the tax imposed
          by this subtitle for the taxable year an
          amount equal to the sum of the amounts
          payable to the taxpayer–-

            *         *       *       *       *       *       *

                       (2) under section 6421 with
                  respect to gasoline used during the
                  taxable year (A) otherwise than as
                  a fuel in a highway vehicle or (B)
                  in vehicles while engaged in
                  furnishing certain public passenger
                  land transportation service * * *

Section 6421(b) provides in relevant part:

                  SEC. 6421(b) Intercity, Local, or School Buses.--

                       (1) Allowance.--Except as
                  provided in paragraph (2) and
                  subsection (i), if gasoline is used
                  in an automobile bus while engaged
                  in–-

                               (A) furnishing (for
                          compensation) passenger land
                          transportation available to
                          the general public * * *

                  *       *       *       *       *       *       *

                  the Secretary shall pay (without
                  interest) to the ultimate purchaser of
                  such gasoline an amount equal to the
                                - 8 -

                 product of the number of gallons of
                 gasoline so used multiplied by the rate
                 at which tax was imposed on such
                 gasoline by section 4081.

                      (2) Limitation in case of
                 nonscheduled intercity or local
                 buses.--Paragraph (1)(A) shall not apply
                 in respect of gasoline used in any
                 automobile bus while engaged in
                 furnishing transportation which is not
                 scheduled and not along regular routes
                 unless the seating capacity of such bus
                 is at least 20 adults (not including the
                 driver).

      Petitioners argue that they would be entitled to a payment

under section 6421(b)(1)(A) and therefore entitled to claim an

income tax credit under section 34(a)(2).   Respondent contends

that petitioners do not meet the requirements for claiming a

payment under section 6421(b)(1)(A).

      There are three essential elements to a claim for payment

under section 6421(b)(1)(A) in situations (like this one) where

the seating capacity of each vehicle is fewer than 20 adults.     A

taxpayer must establish that the excise tax was paid on gasoline

(1) used in an automobile bus, (2) while engaged in furnishing

(for compensation) passenger land transportation available to the

general public, and (3) which was scheduled along regular routes.

See sec. 6421.   We shall address these elements separately.

II.   “Automobile Bus” Requirement

      Petitioners argue that the vans and 4-door sedans used to

transport passengers qualify as “buses”.    Whether a sedan or van
                                - 9 -

may qualify as an automobile bus under section 6421 is an issue

of first impression.   The term “bus” for purposes of section 6421

is not defined in the Code, the applicable regulations, or the

legislative history.   The legislative history suggests that

Congress intended to limit the scope of section 6421 to buses.

Section 6421 was added to the Code by section 208(c) of the

Federal-Aid Highway Act of 1956, Pub. L. 84-627, 70 Stat. 394.

As enacted, section 6421(b)(1) originally provided for a payment

of excise tax “If gasoline is used * * * in vehicles while

engaged in furnishing scheduled common carrier public passenger

land transportation service along regular routes”.     The

applicable version of section 6421(b) was amended by section

233(a) of the Energy Tax of 1978, Pub. L. 95-618, 92 Stat. 3190

(1978 amendment).   The word “vehicles” was replaced with

“automobile buses”.    The Senate report explains that “Since bus

transportation is more energy-efficient than private automobile

transportation, the committee believes it desirable to encourage

greater use of bus transportation.”     S. Rept. 95-529, at 54

(1977), 1978-3 C.B. (Vol. 2) 199, 246.     Although Congress made

clear its intent to limit the application of the statute to

buses, it never defined the word “bus”.     We therefore assume that

Congress intended the word “bus” to carry its “‘ordinary,

contemporary, common meaning.’”    Pioneer Inv. Servs. Co. v.

Brunswick Associates Ltd. Pship., 

, 388
                              - 10 -

(1993)(quoting Perrin v. United States, 

, 42 (1979));

see also Crane v. Commissioner, 

, 6 (1947) (“Words of

statutes--including revenue acts--should be interpreted where

possible in their ordinary, everyday senses”).    Therefore, we

shall look to the ordinary meaning of the word “bus” to determine

whether petitioners’ sedans and vans qualify as buses.

     In determining the ordinary meaning of a statutory term, we

first look to the ordinary usage or settled meanings of the words

used in the statute by Congress.   Hamm v. James, 

,

1343 (11th Cir. 2005); Hefti v. Commissioner, 

, 193

(1991), affd. 

 (8th Cir. 1993).    The word “bus” is

short for the word “omnibus” and is commonly defined as “a large

motor-driven vehicle designed to carry passengers usu. according

to a schedule along a fixed route”.    Webster’s Third New

International Dictionary (1993); see also Webster’s Tenth New

Collegiate Dictionary (2002) for a similar definition.    We

address whether the vehicles petitioners use meet the definition

of “fixed” or “regular” routes in detail infra pp. 16-20 in

examining whether petitioners meet the third requirement for

obtaining the credit.   Notwithstanding the question of fixed

routes, we do not believe that the 4-passenger sedans petitioners

used qualify as large motor vehicles.    Petitioners submitted

closeup photographs of the sedans in question, and it is fairly

obvious that the vehicles are not large, even for a sedan.
                              - 11 -

     The definition of the word “omnibus” also does not favor

petitioners.   The word “omnibus” is defined as “a public vehicle

usu. automotive and 4-wheeled and designed to carry a

comparatively large number of passengers.”   Webster’s Third New

International Dictionary (1993).   Although the description of

“omnibus” as 4-wheeled plausibly includes a sedan, the sedans

petitioners used would not be able to carry a large number of

passengers.

     Petitioners argue that because Congress used the term

“automobile bus” and not just “bus” in the statute, they must

have meant something more expansive than a traditional “bus”.

Petitioners justify this construction with several different

arguments, all of which we reject.

     A.   The Prefix “Automobile” Does Not Modify the Meaning of
          “Bus”

     Petitioners argue that because the word “automobile”

precedes the word “bus” in the statute, Congress must have

intended a more expansive definition than the ordinary meaning of

the word “bus”.   Petitioners offer no definition of the phrase

“automobile bus”, but they simply conclude that “the term

‘automobile bus’ does not seem to have any significance such that

any vehicle, including sedans and vans, qualify * * * if the

vehicles were used for transportation which is regularly

scheduled.’”   This premise clearly violates “‘a cardinal

principle of statutory construction’ that ‘a statute ought, upon
                                - 12 -

the whole, to be so construed that, if it can be prevented, no

clause, sentence, or word shall be superfluous, void, or

insignificant.’”     TRW Inc. v. Andrews, 

, 31 (2001)

(quoting Duncan v. Walker, 

, 174 (2001)).    Further,

petitioners’ contention that the word “automobile bus” is

insignificant also renders the 1978 amendment substituting

automobile bus for vehicle superfluous.    One of the stated

purposes of the 1978 amendment was to “encourage greater use of

bus transportation.”    S. Rept. 95-529, supra at 54, 1978-3 C.B.

(Vol. 2) at 246.   We cannot ignore the overwhelming evidence of

deliberate intent to include the word “bus” in the statute.

Therefore, we reject petitioners’ argument.    After arguing that

the term “automobile bus” has no significance in the statute,

petitioners argue in the alternative that we should accept their

proffered plain meaning of “automobile bus”.    Petitioners surmise

that Congress meant to use the word “automobile” in its noun form

to describe the traits that the word “bus” is supposed to have.

The noun form of “automobile” is commonly defined as a “four-

wheeled automotive vehicle”.    Webster’s Third New International

Dictionary (1993).    Together with the word “bus”, petitioners

conclude that Congress meant to include all four-wheeled vehicles

which travel on regular routes in defining what vehicles qualify

for the exemption.    Respondent argues that Congress meant the
                               - 13 -

adjective form of “automobile” to describe bus, which is commonly

defined as “automotive”, meaning “containing within itself the

means of propulsion”.   Id.

     We agree with respondent’s interpretation.   There is no

evidence that Congress intended the plain meaning of “automobile”

to alter or expand the plain meaning of the word “bus”.    The

legislative history accompanying section 6421 clarifies that

Congress meant only buses should qualify for the credit:     “the

bill provides for the refund or credit of the taxes paid on

gasoline and other motor fuels but only to the extent these fuels

are used in a bus engaged in furnishing (for compensation)

passenger land transportation available to the general public”.

S. Rept. 95-529, supra at 56, 1978-3 C.B. (Vol. 2) at 248

(emphasis added).   Even if we were to accept petitioners’

interpretation of the word “automobile bus”, petitioners would

not meet their own definition because as discussed infra pp. 16-

19, the transportation petitioners provided was not on fixed or

regularly scheduled routes.2

     B.   The Legislative History to Section 6421 Does Not
          Support Petitioners’ Interpretation

          Petitioners argue that the following language from the


     2
      Respondent cites extensive legislative history that shows
how the word “automobile” has been used as a modifier in various
statutes predating the Code. While that argument may have some
merit, we find that it is not dispositive and therefore does not
control our analysis.
                               - 14 -

legislative history accompanying the 1978 amendment of section

6421 supports their expansive definition of “automobile bus”:

                    Explanation of provisions

     The bill removes the excise taxes on highway tires,
     inner tubes, and tread rubber, gasoline and other motor
     fuels, and lubricating oil for private intercity, local
     and school bus operations.

               *     *     *      *     *    *     *

     An “intercity or local bus” means any bus which is used
     predominantly in furnishing (for compensation)
     passenger land transportation available to the general
     public if either (1) the transportation is scheduled
     and along regular routes, or (2) the passenger seating
     capacity of the bus is at least 20 adults (not
     including the driver). Thus, under the first
     alternative portion of this definition, a bus which is
     used predominantly (that is, more than 50 percent) in
     providing (for compensation) scheduled transportation
     along regular routes (such as is provided by local
     transit systems or an intercity bus operation providing
     regularly scheduled service along regular routes) will
     qualify for the exemption from the taxes on tires,
     tubes, and tread rubber, regardless of the size of the
     bus involved. For nonscheduled (i.e., charter)
     operations (covered by the second alternative portion
     of the definition), the exemption is available only if
     the bus has a passenger seating capacity of at least 20
     adults (not including the driver) and the
     transportation is available to the general public. The
     purpose of the “at least 20 passenger” requirement is
     to insure that, in situations where regularly scheduled
                                - 15 -

     service is not being furnished, vans and similar
     vehicles used for vanpooling or taxi service are not
     eligible for the exemption from these taxes (and the
     fuels taxes).

S. Rept. 95-529, supra at 55, 1978-3 C.B. (Vol. 2) at 247.3

     Petitioners claim that the “predominant use” language in the

legislative history allows them to qualify under the first

alternative definition so long as the transportation they provide

is scheduled along regular routes.       We disagree.

     Prior to “construing the statute so as to override the plain

meaning of the words used therein” this Court requires

“unequivocal evidence of legislative purpose”.          Huntsberry v.

Commissioner, 

, 747-748 (1984).       The excerpt

petitioners cites, in our opinion, does not constitute

“unequivocal evidence” of legislative intent to override the

plain meaning of the words used in the statute.         In addition, the

language petitioners cite still requires that there is a “bus

which is used predominantly”.    S. Rept. 95-529, supra at 55,



     3
      Respondent argues that the predominant use sentence does
not apply to sec. 6421 because the language in that sentence does
not specifically mention gasoline or fuel taxes. We disagree.
Since the first and last paragraphs both mention gasoline and
fuel taxes, we conclude that the entire explanation pertains to
both secs. 6421 and 4221 and do not find that particular omission
significant. Petitioners also cite the language in sec. 48.4221-
8(b)(2), Excise Tax Regs., to support their interpretation of the
“bus” and “regular route” requirements. Since that language is
substantially the same as the language in the Senate report, we
subsume its analysis in the arguments based on the language in
the Senate report without reaching the question of whether those
regulations are applicable.
                                  - 16 -

1978-3 C.B. (Vol. 2) at 247 (emphasis added).        The legislative

history does not define “bus”, which leaves us with the ordinary

meaning of the word “bus” that we have already stated petitioners

do not qualify under.

       We conclude that the sedans do not qualify as “buses”.      Even

though the legislative history petitioners cite plausibly

includes vans, we do not need to evaluate whether any vans

petitioners used qualify as buses because our finding that sedans

are not buses precludes an application of the credit.

Petitioners failed to give an accounting of how many gallons of

gas to attribute to each type of vehicle for purposes of the

gasoline credit.       See sec. 6421(b)(1).   Therefore, even if we

were to hold that vans qualify as buses, petitioners fail to

qualify for the gasoline credit because we have no way of

discerning how many gallons of gasoline were used by either type

of vehicle.4

III.       “Regular Route” Requirement

       Since petitioners did not use gasoline in an “automobile

bus,” they are not entitled to an income tax credit under section

34(a)(2).       Nevertheless, for the sake of completeness, we shall

determine whether petitioners provided transportation that meets




       4
      Neither party has raised the question of burden of proof,
but petitioners have the initial burden of coming forward with
evidence. Rule 142(a).
                              - 17 -

the “regular route” requirement.5   Under section 6421(b),

transportation must be scheduled “along regular routes” unless

the seating capacity of the bus is at least 20 adults.

Petitioners concede that all of the vehicles at issue seated

under 20 adults.   Therefore, the issue is whether petitioners

provided transportation scheduled along regular routes.      The

Senate report issued in conjunction with the Energy Tax Act of

1978 states that in order for service to qualify as scheduled and

on regular routes under the statute, the service must provide

“scheduled transportation along regular routes (such as is

provided by local transit systems or an intercity bus operation

providing regularly scheduled service along regular routes)”.      S.

Rept. 95-529, supra at 55, 1978-3 C.B. (Vol. 2) at 247.

Petitioners fail to satisfy this requirement.

     Unlike typical local transit systems, there were no

published timetables available to the general public that the

sedans and vans were required to follow.    The schedules were

prepared the night before the travel day.    Although petitioners’

services were provided on a daily basis, they did not follow a

regular schedule, nor were the routes they traveled “regular”.      A

stop that was listed on a previous day’s manifest might or might

not have appeared on a subsequent manifest.    The existence of



     5
      Respondent no longer contests the “available to the general
public” requirement.
                              - 18 -

reservation passengers and the unpredictability of subscription

changes, additions, and cancellations guaranteed that the routes

would vary significantly from one day to the next.     Such variable

scheduling by its nature cannot be considered to constitute a

“regularly scheduled service along regular routes”.

     Petitioners again rely on the “predominant use” found in the

Senate report to argue that the transportation was serviced along

regular routes.   Petitioners argue that the implication of that

language, which was set forth supra p. 14 suggests that if a bus

is used over 50 percent in providing scheduled transportation

along regular routes, then it qualifies under section 6421.

Based upon the premise that over 50 percent of their services

were subscription riders, petitioners argue that they meet the

“predominant use” standard.

     Petitioners’ argument contains several flaws.     First,

petitioners failed to establish that their vans and sedans were

used more than 50 percent in furnishing subscription services.

Petitioners attempted to elicit such information from their

witnesses at trial; however, neither the president of Zuni nor

the general manager of MTMC could provide that information based

on personal knowledge or any other credible source.6    Second,


     6
      The most that these witnesses could account for is an
estimate that over 50 percent of the clients were subscription
passengers. The witnesses admitted that they did not know
exactly (beyond an “informed guess”) what percentage of the
                                                   (continued...)
                              - 19 -

even if we accepted that premise as fact, it does not impact our

finding that the routes traveled by petitioners were not regular.

Even with respect to manifests that contained only subscription

passengers, to the extent that they existed, it was possible that

passengers could change from one week to the next as a result of

cancellations or new subscriptions.    As evidenced at trial

through the testimony of the general manager of Cosmis, there was

no way of knowing, short of asking the driver, whether the

vehicle followed the same or similar routes as the corresponding

run on a subsequent day or week.   Petitioners conceded that the

information on the daily manifests was subject to change from

day-to-day based on daily passenger reservations and

subscriptions.   An examination of the daily manifests submitted

in the record reveals that no two manifests contained

substantially similar patterns of destinations traveled or

pickup/dropoff times.7   The manifests had to be modified on a

daily basis to accommodate all of the changes in the needs of the



     6
      (...continued)
riders were subscription and what percentage were reservation.
     7
      The most that can be said about the regularity of the
routes traveled as evidenced in the manifests submitted is that
in a given week several addresses appeared more than once and in
some instances at the same time of day. However, the record is
devoid of any instance where the same route was traveled from
start to finish more than once. In the sample manifests
provided, after a painstaking examination, there is an occasional
cluster of addresses that show up more than once a week, but
otherwise the routes are completely different.
                              - 20 -

passengers using petitioners’ services no matter whether they

were regular subscribers or one-time reservation passengers.       We

conclude that the transportation service petitioners provided, by

its very nature, requires irregularity in the routes and

schedules to function properly.8

IV.   The ADA Does Not Govern Our Determination

      Petitioners argue that it would frustrate the purpose of the

ADA to disallow petitioners’ claimed gasoline tax credit.

Petitioners further argue that the term “scheduled and along

regular routes” should be read in light of the paratransit

regulations enacted under the ADA.     We disagree.    The ADA is not

a taxing statute, and therefore it has no applicability to

whether petitioners qualify for a credit against their income

taxes under section 34.   The particular paratransit service

petitioners provide qualifies under neither the plain language of

section 6421 nor the stated legislative intent.       We may not

rewrite any of these provisions.



      8
      In their brief, petitioners offer creative constructions of
“scheduled” and “regular routes” based upon various dictionary
definitions. We decline to address these arguments here because
we find that the legislative history clarifies what type of
service Congress considered to be “scheduled” along “regular
routes”. Petitioners’ proffered plain meaning argument lacks
merit. Further, based on their argument, petitioners conclude
that “regularly” means traveling the same route two or three
times a week. Petitioners failed to establish that their
vehicles traveled the same route more than once a week, let alone
two or three times, and therefore petitioners fail to qualify
under their own definition of “regular routes”.
                              - 21 -

     In conjunction with their ADA argument, petitioners argue

that one of the underlying purposes of section 6421 is to provide

relief for local mass transportation systems, and therefore we

must construe the statute to include paratransit providers as

beneficiaries in order to be consistent with and further this

purpose.   See Greyhound Corp. v. United States, 

, 868

(9th Cir. 1974) (“Special relief is also provided, in the case of

gasoline, diesel fuel, and special motor-fuel taxes, for fuel

used in the operation of local or mass transportation systems.”

(quoting H. Rept. 2022, 84th Cong., 2d Sess. (1956), 1956-2 C.B.

1285, 1289)).   The legislative history of the statute as amended

in 1978, the statute which we are construing in this case, states

as the statute’s purpose “to encourage greater use of bus

transportation.”   S. Rept. 95-529, supra at 54, 1978-3 C.B. (Vol.

2) at 246 (emphasis added).   Petitioner cites authority on

statutory interpretation that notes that there is a presumption

against an implied repeal of legislative purpose.   However, we do

not consider our holding to conflict with the purpose of the

statute as originally enacted.   Nor do we find that the 1978

amendment intended to repeal the stated purpose of the 1956 act.

Rather, the 1978 amendment simply designated the scope of the

local mass transportation systems that Congress wanted to qualify

under section 6421.   We cannot accommodate petitioners’ request

to ignore words in the statute and gloss over stated
                              - 22 -

congressional intent to achieve an overly broad interpretation

that allows petitioners to qualify for the credit.

V.   Conclusion

     Petitioners do not qualify under the section 34 credit for

gasoline taxes because the transportation they provided did not

meet the requirements enumerated in section 6421.    Petitioners’

sedans did not qualify as buses, and petitioners did not provide

any evidence for us to bifurcate the credit allowed toward their

vans that may have possibly qualified.    Thus we decline to reach

that issue of whether the vans qualify in light of the failure of

proof.   Nor were petitioners’ transportation services scheduled

and along regular routes.   The routes petitioners traveled day-

to-day were subject to change based on a myriad of factors.    None

of the constructions of the statutes petitioners offered were

persuasive.

     To reflect the foregoing,



                                      Decisions will be entered for

                                 respondent.