ATO Interpretative Decision
ATO ID 2003/31 (Withdrawn)
Excise
Excise - Collections - Petroleum - Liability to pay excise duty on refinery residueFOI status: may be released
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This ATO Interpretative Decision is withdrawn from the database following the decision of the Federal Court of Australia in Caltex Australia Petroleum Pty Ltd v. Commissioner of Taxation [2008] FCA 1951. Additionally, the excise tariff to which this referred was amended on 1 July 2006.This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
Is refinery residue, being an output from the process of refining crude oil at an oil refinery, subject to excise duty at a rate set out in Item 11 of the Schedule to the Excise Tariff Act 1921 (the Schedule)?
Decision
Yes. Refinery residue is a product described in Item 11 of the Schedule and is therefore subject to excise duty under section 5 of the Excise Tariff Act.
Facts
A refinery uses crude oil as a feedstock and this is processed in a simple distillation column.
There are three basic products resulting from the refining process, being diesel, naphtha and residue.
Refinery residue is not liquid at ambient temperatures and is not suitable for use as a grease or lubricating oil. Residue is not used for blending with any other product.
Residue is not an excisable blended petroleum product, a petroleum based oil or grease, nor is the residue an unrefined stabilised crude petroleum oil or condensate. Therefore residue is not classified to Items 12, 15 or 17 of the Schedule.
Reasons for Decision
Subsection 4(1) of the Excise Act 1901 defines 'excisable goods' as goods in respect of which excise duty is imposed by Parliament, and includes goods the subject of an excise tariff or excise tariff alteration proposed in the Parliament.
Section 5 of the Excise Tariff Act imposes excise duty on goods specified in the Schedule. The Schedule describes those goods which are excisable, and sets down the rate of excise duty levied on these goods.
The Schedule has 3 columns, being an item number in column 1, a description of the goods or article in column 2 and a rate of duty in column 3.
For refinery residue to be classified as an excisable good under Item 11 of the Schedule, it must come within one of the descriptions of goods specified in paragraphs (a) to (e) of Item 11 and also must fall within one of the specific categories of the goods specified in subitems 11(A) to (K) of the Schedule.
Thus Item 11 of the Schedule contemplates a 2 stage classification of goods. If a good comes within one of the categories in paragraphs (a) to (e) of Item 11 it will not be an excisable good unless it also comes within one of the categories in subitems 11(A) to 11(K).
Paragraph (a) of Item 11 of the Schedule refers to refined or semi-refined liquid petroleum products and shale oil products other than those specifically excluded. The term liquid in this paragraph qualifies the input to the refining process and not the output.
The relevant issue for the purposes of paragraph (a) of Item 11 of the Schedule is whether the product is derived from refined or semi-refined liquid petroleum or shale oil.
Even if residue were not derived from refined or semi-refined liquid petroleum falling within paragraph (a) of Item 11 of the Schedule, it would be a product within the category 'other petroleum products other than products classified to Item 15 of the Schedule'. Thus, if the product does not come within paragraph (a) it would fall within paragraph (d) of Item 11 of the Schedule.
Refinery residue meets the description in subitem 11(I) of the Schedule where it is described as an 'other refined or partly refined petroleum' product (refinery residue does not meet a description in any of the other subitems in Item 11 of the Schedule).
As refinery residue meets the description in column 1 of subitem 11(I) of the Schedule, excise duty is payable on residue at the rate specified in column 3 of subitem 11(I) of the Schedule.
Date of decision: 14 January 2003
Legislative References:
Excise Act 1901
subsection 4(1)
subsection 5(1)
Schedule
Item 11
Item 12
Item 15
Item 17
Keywords
Excise
Excise Tariff
Excise Petroleum Industry Group
Petroleum
Petroleum industry
Crude oil
ISSN: 1445-2782
| Date: | Version: | |
| 14 January 2003 | Original statement | |
| You are here | 23 January 2009 | Archived |