ATO Interpretative Decision
ATO ID 2004/843 (Withdrawn)
Excise
Energy Grants (Credits) Scheme: off-road credit - marine transport - setting and servicing of nets and drumlines for a shark control programFOI status: may be released
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This ATO ID is withdrawn from 1 July 2012, the date the Energy Grants (Credits) Scheme Act 2003 was repealed.
Despite its withdrawal, this ATO ID continues to be a precedential ATO view in respect of the period the Act was in force, 1 July 2003 up to and including 30 June 2012.This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
Status of this decision: Decision Withdrawn 1 July 2012
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 an entity which sets and maintains drumlines and nets for the purpose of catching sharks undertaking 'marine transport' for the purposes of section 36 of the Energy Grants (Credits) Scheme Act 2003 (EGCSA)?
Decision
Yes. An entity which sets and maintains drumlines and nets for the purpose of catching sharks is undertaking 'marine transport' for the purposes of section 36 of the EGCSA.
Facts
An entity contracts to a government body to assist with a shark control program.
The entity is required to transport nets and drumlines when setting them, transport equipment for the repair and maintenance of nets and drumlines once set, and transport caught sharks out to sea for disposal or release.
Reasons for Decision
Subsection 53(1) of the EGCSA states that, subject to certain prescribed conditions, an entity is entitled to an off-road credit if they purchase or import into Australia off-road diesel fuel for a use by them that qualifies.
Subsection 53(3) of the EGCSA provides that use in marine transport, in the course of carrying on an enterprise, is a use that qualifies. The phrase 'use in marine transport' is defined in section 36 of the EGCSA to mean a number of activities, including (per subsection 36(2)) 'use in a vessel in marine transport'.
A key step in determining what constitutes 'use in a vessel in marine transport' is to determine the meaning of the term 'marine transport'.
In Re Port of Brisbane Corporation and Deputy Commissioner of Taxation [2004] AATA 222 (Port of Brisbane), the Administrative Appeals Tribunal (AAT) considered the meaning of 'marine transport' for the purposes of the Diesel Fuel Rebate Scheme, which was the precursor to the Energy Grants (Credits) Scheme and under which a diesel fuel rebate was payable for diesel fuel purchased for use 'in marine transport'.
In Port of Brisbane, the AAT reasoned at paragraph 31 that:
... the phrase "use in ... marine transport" should be accorded its ordinary and natural meaning. ...
And further at paragraph 32 that:
.... In the Tribunal's opinion, the key to the meaning of "marine transport" lies in the meaning of the word "transport". The Concise Macquarie Dictionary (3rd edition 1988) lists as the sixth meaning of transport:
6. a means of transporting, as a ship, truck or plane used for transporting soldiers or military stores or convicts.
The first meaning of transport in the Oxford English Dictionary is:
1. the action of carrying or conveying a thing or person from one place to another, conveyance.
The use of the word "transport" in the phrase "marine transport" suggests a conveyance - something which does the conveying - a vehicle or vessel or aircraft which moves through its particular medium (land, water, air) carrying a thing or person. The medium in this case is, of course, water. Thus, ... "marine transport" should in this instance be interpreted as meaning the act of conveying a thing...
In this case, the contract for the shark control program requires the entity to:
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- transport nets and drumlines when setting them
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- transport equipment for the repair and maintenance of nets and drumlines once set, and
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- transport caught sharks out to sea for disposal or release.
Each of the above journeys involves the conveyance of things by a vessel on water.
Accordingly, an entity which sets and maintains drumlines and nets for the purpose of catching sharks is undertaking 'marine transport' for the purposes of section 36 of the EGCSA.
Date of decision: 7 October 2004
Legislative References:
Energy Grants (Credits) Scheme Act 2003
section 36
subsection 36(2)
section 37
subsection 53(1)
subsection 53(2)
subsection 53(3)
Case References:
Re Port of Brisbane Corporation and Deputy Commissioner of Taxation
[2004] AATA 222
55 ATR 1029
Keywords
EGCS marine transport
ISSN: 1445-2782
| Date: | Version: | |
| 7 October 2004 | Original statement | |
| You are here → | 1 July 2012 | Archived |