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ATO Interpretative Decision

ATO ID 2004/453 (Withdrawn)

Excise

Diesel Fuel Rebate Scheme: off-road - claim amendment
FOI status: may be released
  • This ATO ID is withdrawn from the database because it contains a view in respect of the diesel fuel rebate provisions of the Excise Act 1901 and or the Customs Act 1901 that were repealed with effect from 1 July 2003. Despite its withdrawal from the database, this ATO ID continues to be a precedential view in respect of decisions for fuel purchased before 1 July 2003.
    This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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

Can an assessment of the amount of diesel fuel rebate payable to a client be amended under section 78AE of the Excise Act 1901 if the client omitted to include certain fuel purchases in their application for diesel fuel rebate to which the assessment relates?

Decision

No. An assessment of the amount of diesel fuel rebate payable to a client cannot be amended under section 78AE of the Excise Act if the client omitted to include certain fuel purchases in their application for diesel fuel rebate to which the assessment relates.

Facts

A client purchased diesel fuel more than three years ago and did not make an application for diesel fuel rebate (a claim) in respect of the purchase.

However, the client had previously made a claim for diesel fuel rebate which included other purchases of fuel made in the same period as the fuel purchase that was not claimed. The client wishes to have their assessment amended to include the hitherto unclaimed fuel purchase.

Reasons for Decision

Under subsection 78A(1) of the Excise Act, a diesel fuel rebate is, subject to certain prescribed conditions, payable to a person who has purchased diesel fuel for use in certain activities.

Consequently, a person who has purchased diesel fuel for use in an eligible activity may make an application for diesel fuel rebate in relation to that fuel purchase. Once a claim has been made, under paragraph 78A(4B) of the Excise Act the Commissioner must inform the claimant in writing of the amount of rebate payable (if any) in relation to that claim.

Section 78AE of the Excise Act enables the Tax Office to amend a person's diesel fuel rebate assessment in a number of circumstances. The circumstance relevant to the client is set out in subsection 78AE(3), which states:

(3)
The CEO may amend the assessment of rebate payable on a diesel fuel rebate application if:

(a)
either:

(i)
the applicant notifies an officer doing duty in relation to diesel fuel rebate in writing of an error or errors in the application before the applicant is notified by the CEO under subsection 78AD(1) of an audit of that particular application; or
(ii)
the CEO otherwise becomes aware of an error or errors in the application; and

(b)
the CEO is satisfied that the assessment should be amended to take account of the error or errors.

Subsection 78AE(1) of the Excise Act specifies that the Commissioner may only amend the client's assessment within five years of the claim being made.

As, under subsection 78A of the Excise Act a claim for diesel fuel rebate is made in respect of a purchase of fuel, rather than for all fuel purchases within a particular claim period, the failure to include a fuel purchase in any particular claim does not constitute an error in the claim.

Example: A client who lodged a diesel fuel rebate application on 1 July 2000 for fuel purchased on 17 June 2000 and 28 June 2000 did not make an error in that claim simply because they failed to include fuel purchased on 20 June 2000. Indeed, the client remained entitled to make a claim for diesel fuel rebate in respect of this fuel purchase for three years.

In this instance, the claim the client wishes to amend was made in respect of certain fuel purchases, and an assessment was made in relation to the amount of diesel fuel rebate payable in respect of those fuel purchases. The failure of the client to include certain invoices in that initial claim does not constitute an error in that claim. Therefore, the Commissioner has no basis under subsection 78AE of the Excise Act on which to amend the assessment made in relation to that claim.

Note: the Diesel Fuel Rebate Scheme is administered under the Excise Act 1901 and the Customs Act 1901. There are identical provisions in both of these Acts, but for simplicity only the Excise Act is referred to here.

Date of decision:  23 April 2004

Legislative References:
Excise Act 1901
   section 78A
   subsection 78A(4A)
   section 78AE
   subsection 78AE(3)

Related ATO Interpretative Decisions
ATO ID 2004/194
ATO ID 2001/718
ATO ID 2003/881

Keywords
Diesel fuel rebate scheme
DFRS amendment

Business Line:  Excise

Date of publication:  4 June 2004

ISSN: 1445-2782

history
  Date: Version:
  23 April 2004 Original statement
You are here 8 January 2010 Archived

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