ATO Interpretative Decision
ATO ID 2004/869 (Withdrawn)
Excise
Energy Grants (Credits) Scheme: off-road - residential premises - houseboat used as holiday homeFOI status: may be released
-
This ATO ID is withdrawn from 1 July 2012, the date the Energy Grants (Credits) Scheme Act 2003 was repealed.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Status of this decision: Decision Withdrawn 1 July 2012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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 a houseboat that is used exclusively by its owners (at weekends and for periods of a week or more during school holidays), 'residential premises' as defined in section 4 of the Energy Grants (Credits) Scheme Act 2003 (EGCSA)?
Decision
Yes. A holiday home that is used exclusively by its owners (at weekends and for periods of a week of more during school holidays) is 'residential premises' as defined in section 4 of the EGCSA.
Facts
A person owns a houseboat which they use as a holiday home. The owner and their family regularly visit the holiday home at weekends, more so during the summer months, and for extended periods of time, up to several weeks, during school holidays.
The person purchases diesel fuel for use on the houseboat to generate electricity to meet their own domestic requirements. The person does not use diesel fuel to propel the houseboat.
The owner does not rent out the holiday home.
Reasons for Decision
Paragraph 53(4)(b) of the EGCSA provides that an entity is entitled, subject to certain prescribed conditions, to an off-road credit if they purchase diesel fuel for use at residential premises to generate electricity to meet the domestic requirements of the residents of those premises.
Section 4 of the EGCSA defines 'residential premises' as:
- (a)
- premises used as a house; or
- (b)
- other premises at which at least one person resides
- but does not include
- premises used in the business of a hotel, motel, boarding house or a similar business ...
As the holiday home is not being used in the course of a business, it is not necessary to consider the exclusions in paragraph (c) above.
Therefore the houseboat will be residential premises if it is premises used as a house or premises at which at least one person resides.
In Collector of Customs v. Perkins Shipping Pty Ltd (1989) 24 FCR 520, the Federal Court considered whether 'residential premises' could include the living quarters of vessels under the Diesel Fuel Rebate Scheme, the immediate precursor to the Energy Grants (Credits) Scheme.
The Court decided that 'residential premises' can include the living quarters of vessels provided the requisite continuity of association exists between the vessel and crew to constitute the vessel as the crew's place of residence. In that case the Full Federal Court cited with approval the following passage from the judgment of Williams J in Koitaki Para Rubber Estates Pty Limited v. Federal Commissioner of Taxation (1941) 64 CLR 241; (1941) 6 ATD 82; (1941) 2 AITR 136:
The place of residence of an individual is determined, not by the situation of some business or property which he is carrying on or owns, but by reference to where he eats and sleeps and has his settled or usual abode. If he maintains a home or homes he resides in the locality or localities where it or they are situated, but he may also reside where he habitually lives even if this is in hotels on a yacht or some other abode.
In this case the owner and their family eat, sleep and have their recreation time at the houseboat. There is a pattern of regular use of the holiday home over a sustained period of time, combined with regular use of the holiday home for periods of several weeks at a time. Therefore, a requisite continuity of association exists between the houseboat and the owner and their family. Therefore the houseboat is considered to be 'residential premises' for the purposes of section 4 of the EGCSA.
Date of decision: 28 October 2004
Legislative References:
Energy Grants (Credits) Scheme Act 2003
section 4
paragraph 53(4)(b)
Case References:
Collector of Customs v. Perkins Shipping Pty Ltd
(1989) 24 FCR 520
(1941) 64 CLR 241
(1941) 6 ATD 82 Related ATO Interpretative Decisions
ATO ID 2003/700
ATO ID 2003/1160
Keywords
EGCS electricity generation
EGCS off-road
EGCS residential electricity generation
EGCS use to generate electricity at residential premises
Energy grants (credits) scheme
ISSN: 1445-2782
| Date: | Version: | |
| 28 October 2004 | Original statement | |
| You are here → | 1 July 2012 | Archived |