ATO Interpretative Decision
ATO ID 2004/114
ExcisePayment of Excise Duty: lodgment of periodic settlement permissions returns - public holidays
FOI status: may be released
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Status of this decision: Decision Current
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Can a section 61C of the Excise Act 1901 periodic settlement permission return be lodged and excise duty paid on the day after they are otherwise due, if a public holiday occurs on the due date?
Yes. A section 61C of the Excise Act periodic settlement permission return may be lodged and excise duty paid on the day after they are otherwise due, if a public holiday occurs for all of a State (or the Northern Territory or Australian Capital Territory) on the due date.
An entity (the main entity) owns various business entities that operate excise establishments in different states.
Each of the business entities has section 61C of the Excise Act periodic settlement permission for delivery without entry of excisable goods.
Each of the permissions allows for an accounting week starting on Monday and finishing on Sunday.
The main entity centrally coordinates, from their head office, administrative aspects for all of the entities including lodgement of periodic settlement permission returns and payment of duty on Mondays.
When a public holiday occurs on a Monday in the state of the head office, the main entity lodges all of the returns and makes payment of the duty on Tuesdays.
Reasons for Decision
A permission granted under section 61C of the Excise Act allows an entity to deliver excisable goods without first lodging an entry and paying the duty.
The permission granted under section 61C of the Excise Act contains the following relevant (standard) requirement:
... You must lodge your completed return by 4pm on the first working day following the accounting week in which you made your delivery. You must also make your payment by 4pm on the same day.
Payment of duty
Subsection 8AAZMB(1) of the Taxation Administration Act 1953 (TAA) provides that where a tax debt is payable on a day that is not a business day, the payment is due on the next business day. Business day is defined in subsection 8AAZMB(2) of the TAA as follows:
... business day means a day other than:
A tax debt is defined in section 8AAZA of the TAA and generally means an amount due under a taxation law. Taxation law, for the purposes of section 8AAZA, is defined in subsection 2(1) of the TAA as:
law' has the meaning given by the Income Tax Assessment Act 1997.
Subsection 955-1(1) of the Income Tax Assessment Act 1997 defines '
law' to mean:
However, this meaning is modified by subsection 2(2) of the TAA which states:
Despite the definition of taxation law in subsection (1), an Excise Act (as defined in subsection 4(1) of the Excise Act 1901) is not a taxation law for the purposes of Part III of, and Subdivision 284-B in Schedule 1 to, this Act.
The general administration of the Excise Act rests with the CEO, which is defined in section 4 of that Act to be the Commissioner of Taxation. Therefore, the Excise Act falls within the meaning of a taxation law, except for the purposes of Part III (Prosecutions and Offences) and Subdivision 284-B (Penalties relating to false or misleading statements) in Schedule 1 to the TAA.
Payment of duty due under a periodic settlement permission is not made for the purposes of Part III or subdivision 284-B of Schedule 1 to the TAA. Therefore the payment of the duty is a tax debt for the purposes of section 8AAZMB of the TAA. Where a public holiday for all of a State (or the Northern Territory or Australian Capital Territory) falls on a Monday, the duty is due on the next business day.
Lodgement of returns
Section 388-52 in Schedule 1 of the TAA states:
Where an *approved form is required to be given to the Commissioner or to another entity by, or on, a day (the
) that is not a *business day, the approved form may be given on the first business day after the lodgment day.
Subsection 3AA (2) of the TAA deals with interpreting expressions in Schedule 1. It states: 'An expression has the same meaning in Schedule 1 as in the Income Tax Assessment Act 1997 (ITAA 1997).'
The expressions 'approved form' and 'business day' are defined in subsection 995-1(1) of the ITAA 1997 as follows:
has the meaning given by section 388-50 in Schedule 1 to the Taxation Administration Act 1953.
means a day other than:
Section 388-50 in Schedule 1 to the TAA defines 'approved form' as follows:
A return, notice, statement, application or other document under a *taxation law is in the
if, and only if:
Although a periodic settlement permission return is not an approved form under section 388-50 in Schedule 1 to the TAA, the Commissioner wants administrative practices to accord with the legislative framework. Section 7 of the Excise Act provides the CEO with the general administration of that Act. Allowing the periodic settlement permission return to be treated as an approved form is good administrative practice and aligns the day for lodgement of the return with the day for payment of the duty payable.
A periodic settlement permission return may be lodged and excise duty paid on the day after it is otherwise due, if a public holiday occurs for all of a State (or the Northern Territory or Australian Capital Territory) on the due date.Date of decision: 14 January 2004 Income Tax Assessment Act 1997
subsection 995-1(1) Taxation Administration Act 1953
Schedule 1 Part III
Schedule 1 Division 284-B
Schedule 1 section 388-50
Schedule 1 section 388-52 Related ATO Interpretative Decisions
ATO ID 2004/113
Excise collections other
Weekly settlement permission