ATO Interpretative Decision
ATO ID 2004/954 (Withdrawn)
Excise
Energy Grants (Credits) Scheme: claiming an energy grant where one partner is deceased and the ultimate residue of the partnership has been distributedFOI 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This ATO ID is withdrawn from 1 July 2012, the date the Energy Grants (Credits) Scheme Act 2003 was repealed.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Status of this decision: Decision Withdrawn 1 July 2012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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
Can a person who was a member of a two person partnership make a claim for an energy grant under section 15 of the Product Grants and Benefits Administration Act 2000 (PGBAA) if the other partner has died and the ultimate residue of the partnership's estate has been distributed?
Decision
No. A person who was a member of a two person partnership cannot make a claim for an energy grant under section 15 of the Product Grants and Benefits Administration Act 2000 (PGBAA) if the other partner has died and the ultimate residue of the partnership's estate has been distributed.
Facts
A client was a partner in a two person partnership until the death of the other partner.
The partnership was registered for the purposes of the Energy Grants (Credits) Scheme.
The surviving partner wishes to make a claim for an energy grant for fuel which was purchased and used by the partnership in eligible activities.
All of the remaining assets of the partnership have been sold off, any liabilities have been paid out, the surviving partner and the trustee of the deceased partner's estate have received their final payments, the partnership is not owed any money, and all bank accounts have been closed.
Reasons for Decision
Under section 15 of the PGBAA 'you' may make a claim for an energy grant if you are registered for an energy grant. Such a claim must meet certain requirements, in particular 'you' must sign the claim.
In accordance with section 5 of the PGBAA 'you' applies to entities generally, unless its application is specifically limited.
Under subsection 51(1) of the PGBAA, a partnership is treated, for the purposes of that Act and the entitlement Acts as if it were a person.
The Partnership Act of each state and territory provides:
Subject to any agreement between the partners, every partnership is dissolved as regards all of the partners by the death or bankruptcy of any partner upon the death of a partner.
and that:
After the dissolution of a partnership the authority of each partner to bind the firm, and the other rights and obligations of the partners, continue, notwithstanding the dissolution, so far as may be necessary to wind up the affairs of the partnership, and to complete transactions begun but unfinished at the time of dissolution, but not otherwise...
The restriction on the partners' authority is for the purposes of winding up the affairs of the partnership and to complete transactions begun but unfinished. The partner may not begin new transactions in the exercise of their rights after dissolution of the partnership.
The dissolution of the partnership is taken to have occurred once the partnership's affairs have been finalised and the ultimate residue of the partnership's estate has been distributed.
In this instance, all of the remaining assets of the partnership have been sold off, any liabilities have been paid out, the surviving partner and the trustee of the deceased partner's estate have received their final payments, the partnership is not owed any money, and all bank accounts have been closed. Consequently, the ultimate residue of the partnership's estate has been distributed.
Therefore, the partnership is dissolved and no longer exists as a person or entity for the purposes of the PGBAA.
Accordingly, the surviving person cannot make a claim for fuel purchased and used by the partnership as there is no legal entity to make the claim or to sign the claim form.
Date of decision: 24 November 2004
Legislative References:
Product Grants and Benefits Administration Act 2000
section 5
section 15
subsection 51(1)
ATO ID 2004/953
Other References:
Partnership Act 1963 (ACT)
Partnership Act 1892 (NSW)
Partnership Act (NT)
Partnership Act 1891 (Qld)
Partnership Act 1891 (SA)
Partnership Act 1891 (Tas)
Partnership Act 1958 (Vic)
Partnership Act 1895 (WA)
Keywords
Energy grants (credits) scheme
EGCS general
EGCS payments
ISSN: 1445-2782
| Date: | Version: | |
| 24 November 2004 | Original statement | |
| You are here → | 1 July 2012 | Archived |