ATO Interpretative Decision

ATO ID 2006/278 (Withdrawn)

Excise

• This ATO ID is withdrawn as it is a restatement of the law and does not contain an interpretative decision.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.

Issue

Can a barge be the premises specified in a 'storage licence' as defined in section 4 of the Excise Act 1901 (Excise Act)?

Decision

Yes. A barge can be the premises specified in a 'storage licence' as defined in section 4 of the Excise Act.

Facts

An entity supplies fuel to ships for domestic and international voyages.

The entity supplies the fuel to ships from a barge.

The entity may store the diesel fuel on board the barge for lengthy periods, depending upon the orders it receives.

Reasons for Decision

Subsection 4(1) of the Excise Act defines the term 'storage licence' in the following way:

storage licence means a licence granted under Part IV, the holding of which authorises the licence holder

(a)

to keep and store goods that are:

(i)

excisable goods on which duty has not been paid; and

(ii)

of the kind specified in the licence

at the premises specified in the licence; and

(b)

carry out at the premises activities of a kind specified in the licence

in relation to those goods.

Related to this definition is the following, also found in subsection 4(1) of the Excise Act:

approved place means the premises specified in a storage licence.

For a storage licence to specify a barge as being the premises where storage activities may take place, the barge must be capable of being described as 'premises'.

'Premises' is not defined for the purposes of the Excise Act as a whole.

('Premises' is defined in section 107AA of the Excise Act to include a place, a conveyance or a container [as those terms are defined in the Act] but the definition has no application outside Division 1A of Part IX of the Excise Act which deals with search and seizure.)

The Australian Oxford Dictionary, 1999, Oxford University Press, Melbourne relevantly defines 'premises' as:

2. (in pl.) a a house or building with its grounds and appurtenances. b Law houses, lands, or tenements previously specified in a document etc. ... on the premises in the building etc. concerned.

The courts, however, have interpreted premises more broadly. In Turner & Ors v. York Motors Pty Ltd (1951) 85 CLR 55 Williams J stated (at 83):

The word 'premises' is used in a popular sense and in this sense has a wide meaning. It is wide enough to include bare land. Its true meaning in any particular statute must be ascertained from the context in which it appears and from an examination of the scope and purpose of the statute as a whole.

Given the types of activities that the Excise Act may authorise to be undertaken at specified premises (including storage of excisable goods and manufacture of excisable goods) it follows that the premises specified in a licence or licence application will necessarily meet, or seek to meet, suitability requirements for a place at which goods subject to Excise control are kept, for example, physical security.

The meaning of 'premises' at which unlawful activities are carried out is obviously not constrained by these considerations.

In Clyne v. Deputy Commissioner of Taxation (1981) 150 CLR 1; 12 ATR 173; 81 ATC 4429, per Gibbs and Mason J, while there is a presumption that the same word in a statute will carry the same meaning wherever it is used, this is not a strong presumption and yields readily to context.

In our view the term 'premises' in the expression 'premises specified in a licence' has a narrower meaning than the same term used in relation to unlawful activities. It means premises that the Commissioner considers suitable for the undertaking of particular activities authorised under the Excise Act.

In Collector of Customs v. Perkins Shipping Pty Ltd (1989) 24 FCR 520, the court found that 'premises' can extend to vessels. If a vessel were suitable for use as a storage facility for excisable goods, there is no reason why the term 'premises' would not extend to such a vessel for the purposes of a storage licence.

This conclusion is consistent with the way the term 'place' is used in the Excise Act.

While the term 'place' is used in various contexts with various shades of meaning in the Excise Act, one of those contexts is in relation to the movement of goods subject to the CEO's control, for example, in relation to movement permissions in subsections 39L(4), 60(1A), 61A(1) or 61A(2) and periodic settlement permissions under subsection 61C(1) of the Excise Act.

The definition of 'place' in subsection 4(1) of the Excise Act, as including ship or aircraft, applies equally to this context. This means that, prima facie, goods can be moved to a ship or aircraft within the terms of permission under these provisions.

'Ship' is also defined in subsection 4(1) of the Excise Act and includes a barge.

While it cannot be argued that the term 'premises' includes a barge because of the definition of 'place', the way in which the two terms 'premises' and 'place' are used in the Excise Act is consistent with, and supports, the conclusion that 'premises' includes a barge for the purposes of a storage licence.

Legislative References:
Excise Act 1901
   subsection 4(1)
   subsection 39L(4)
   subsection 60(1A)
   subsection 61A(1)
   subsection 61A(2)
   subsection 61C(1)

Case References:
Turner v York Motors Pty Ltd
   (1951) 85 CLR 55

Other References:
The Australian Oxford Dictionary, 1999, Oxford University Press, Melbourne

Keywords
Excise
Eligible premises
Excisable goods storage licence

Siebel/TDMS Reference Number:  5392203

Business Line:  Indirect Tax

Date of publication:  13 October 2006

ISSN: 1445-2782