ATO Interpretative Decision
ATO ID 2005/261 (Withdrawn)
Excise
Fuel Sales Grants Scheme: fuel retailerFOI status: may be released
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This ATO ID is withdrawn from the database because of amendments made to the Product Grants and Benefits Administration Act 2000 commencing on 1 July 2006. Despite its withdrawal from the database, this ATO ID continues to be a precedential view of the term fuel retailer up to and including 31 December 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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 an entity that sells fuel to its contractors a 'fuel retailer' as defined in regulation 4 of the Product Grants and Benefits Administration Regulations 2000 (PGBA Regs), for the purposes of the Fuel Sales Grant Scheme (FSGS)?
Decision
No. An entity that sells fuel to its contractors is not a 'fuel retailer' as defined in regulation 4 of the PGBA Regs, for the purposes of the FSGS.
Facts
An entity operates a business enterprise.
The entity purchases bulk fuel and sells it to contractors.
The entity sells the fuel to the contractors at cost plus a margin.
The fuel is sold to the contractors to enable them to perform services for the entity.
The entity does not make the fuel available to anyone other than the contractors.
Fuel is pumped directly from the bowser in the entity's fuel depot into the contractors' vehicles.
The entity does not sell the fuel in bulk or in drums.
Reasons for Decision
Subsection 6(1) of the Fuel Sales Grants Act 2000 (FSGA) provides that an entity is not entitled to a fuel sales grant unless it is registered for entitlement to fuel sales grants.
Registration requirements for the FSGS are set out in the Product Grants and Benefits Administration Act 2000 (PGBAA).
The specific requirements for registration for the FSGS are set out in subsection 9(3) of the PGBAA. The only specific requirement listed in subsection 9(3) of the PGBAA is that the entity must satisfy any prescribed conditions. The prescribed conditions are set out in regulation 5 of the PGBA Regs. Subregulation 5(a) of the PGBA specifies that an entity applying for registration must be a 'fuel retailer'.
The term 'fuel retailer' is defined in subregulation 4(1) of the PGBA Regs as follows:
A fuel retailer is an entity that:
The entity does not make retail sales of bulk or drummed fuel. Therefore, paragraph (d) of the definition of fuel retailer is not applicable.
Paragraphs (a), (b) and (c) of the definition of fuel retailer all require the entity to sell fuel to the public (either directly or via a consignment arrangement).
In this instance, the entity is selling fuel exclusively to contractors to enable the contractors to perform services for the entity. The fuel is not made available for sale to anyone other than the entity's contractors.
The term 'public' is not defined in the FSGA, the PGBAA or any related regulations and therefore the ordinary meaning is to be used. The Macquarie Dictionary, [Multimedia], version 5.0.0, 1/10/01 defines 'public' as 'open to all people'.
The entity is clearly not making fuel available to 'all people'.
This view of what constitutes sales to the public is reinforced by subregulation 4(2) of the PGBA Regs, which states:
(2) However, an end user of fuel is not a fuel retailer only because the end user:
The entity is not selling fuel to the public. They are merely providing fuel to other entities (contractors) that have a contractual relationship with the entity, in order to enable the contractors to perform services for the entity.
Therefore, the entity does not meet the definition of a 'fuel retailer' in regulation 4 of the PGBAA regs.
Date of decision: 13 September 2005
Legislative References:
Fuel Sales Grants Act 2000
subsection 6(1)
subsection 9(3) Product Grants and Benefits Administration Regulations 2000
subregulation 4(1)
paragraph 4(1)(b)
subregulation 4(2)
regulation 5
paragraph 5(a)
Other References:
The Macquarie Dictionary, [Multimedia], version 5.0.0, 1/10/01
Keywords
FSGS registration
Fuel sales grant scheme
ISSN: 1445-2782
| Date: | Version: | |
| 13 September 2005 | Original statement | |
| You are here | 19 February 2010 | Archived |