ATO Interpretative Decision
ATO ID 2004/327 (Withdrawn)
Excise
Energy Grants Credits Scheme: agriculture - firebreak maintenance and wildfire controlFOI status: may be released
-
This ATO ID is a simple restatement of the law and does not contain an interpretative decision.This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
Status of this decision: Decision Withdrawn 7 May 2010
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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.
Issue
Do firebreak maintenance and wildfire control activities carried out on in National Parks on behalf of a government authority constitute 'agriculture' as defined in section 22 of the Energy Grants Credits Scheme Act 2003 (EGCSA)?
Decision
No. Firebreak maintenance, and wildfire control activities carried out in National Parks on behalf of a government authority do not constitute 'agriculture' as defined in section 22 of the EGCSA.
Facts
An entity is contracted by a government authority to undertake regular fire break maintenance and wildfire control activities.
The wildfire control activities involve constructing control lines in the direct path of wildfires and away from the fire edge, and the movement of firefighting machinery.
Neither the entity undertaking the firebreak maintenance and wildfire control nor the government authority are carrying out the activities of cultivating the soil, cultivating or gathering in crops, rearing livestock, viticulture, horticulture, pasturage or apiculture
The firebreak maintenance and wildfire control work is carried out off-road in National Parks.
Reasons for Decision
Subsection 53(1) of the EGCSA provides that an entity is entitled to an off-road credit if the entity purchases or imports into Australia off-road diesel fuel for use by it in certain activities. Subsection 53(2) of the EGCSA states that one use that qualifies is use in primary production (other than for the purpose of propelling a road vehicle on a public road).
Section 21 of the EGCSA defines primary production as meaning a number of activities including agriculture. Agriculture is in turn defined in section 22 of the EGCSA to mean a number of activities including agricultural construction activities and sundry agricultural activities.
The term 'agricultural construction activity' is defined in section 25 of the EGCSA as meaning a number of activities including, at paragraph 25(b);
- (b)
- the construction or maintenance of firebreaks undertaken:
- (i)
- by a person who carries on a core agricultural activity; or
- (ii)
- by a person contracted by that person to carry out the construction or maintenance;
- on the agricultural property where the core agricultural activity is carried on or at a place adjacent to that place; or...
The term 'sundry agricultural activity' is defined in section 27 of the EGCSA as meaning a number of activities including, at paragraph 27(d);
- (d)
- the carrying out of firefighting activities:
- (i)
- by a person who carries on a core agricultural activity; or
- (ii)
- by a person contracted by that person to carry out the first-mentioned activity;
- on the agricultural property where the core agricultural activity is carried on or at a place adjacent to that place; or ...
Paragraphs 25(b) and 27(d) of the EGCSA both require the activities to be:
- •
- undertaken by a person who carries on a core agricultural activity; or
- •
- by a person contracted by the person carrying on the core agricultural activity and
- •
- carried out on the agricultural property where the agricultural activity is carried on, or at a place adjacent to that place.
The term 'core agricultural activity' is defined in section 31 of the EGCSA and is essentially the activities of cultivating the soil, cultivating or gathering in crops, rearing livestock, viticulture, horticulture, pasturage or apiculture, when undertaken for the purposes of, or for purposes that will directly benefit, a business undertaken to obtain produce for sale.
The entity undertaking the construction and maintenance of firebreaks and the firefighting activities does not undertake a core agricultural activity. Nor does the government authority to which the entity is contracted. Therefore a key requirement of both paragraphs 25(b) and 27(d) of the EGCSA is not satisfied.
Given this, it is not necessary to determine whether the other requirements of paragraphs 25(b) and 27(d) of the EGCSA are satisfied (especially whether a National Park is a place where a core agricultural activity is carried on or a place adjacent to that place).
Accordingly, the construction of firebreaks and wildfire control in a National Park on behalf of a government authority is not 'agriculture' as defined in section 22 of the EGCSA.
Date of decision: 19 March 2004
Legislative References:
Energy Grants (Credits) Scheme Act 2003
section 21
section 22
paragraph 25(b)
paragraph 27(d)
section 31
subsection 53(1)
ATO ID 2004/332
Keywords
Energy grants (credits) scheme
EGCS firefighting activities
EGCS agriculture
EGCS agricultural maintenance
ISSN: 1445-2782
| Date: | Version: | |
| 19 March 2004 | Original statement | |
| You are here → | 7 May 2010 | Archived |