ATO Interpretative Decision
ATO ID 2008/128 (Withdrawn)
Excise
Excise: Energy Grants (Cleaner Fuels) Scheme Act and fuel standardsFOI status: may be released
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This ATO ID is withdrawn from 1 July 2015, the date the Energy Grants (Cleaner Fuels) Scheme Act 2004 was repealed.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 18 September 2003 up to and including 30 June 2015. Further guidance on the Energy Grants (Cleaner Fuels) Scheme can be found at Cleaner fuels grants scheme.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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
Does a cleaner fuel 'comply with the applicable fuel standard for such fuel' for the purposes of the definition of 'cleaner fuel' in section 4 of the Energy Grants (Cleaner Fuels) Scheme Act 2004 (EGCFS Act), if an approval that varies a fuel standard in a specified way in respect of specified supplies of that fuel is granted to a person under the Fuel Quality Standards Act 2000 (FQSA) and the fuel supplied by that person (or another person specified in the approval) complies with that fuel standard as varied?
Decision
Yes. A cleaner fuel complies 'with the applicable fuel standard for such fuel' for the purposes of the definition of a cleaner fuel in section 4 of the EGCFS Act if an approval that varies a fuel standard in a specified way in respect of specified supplies of that fuel is granted under section 13 of the FQSA, and:
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- the fuel supplied is subject to the approval;
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- the fuel supplied complies with the fuel standard as varied by the approval; and
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- the conditions specified in the approval are met.
Facts
An entity manufactured a quantity of fuel that is a biodiesel.
The Minister administering the FQSA has granted to the entity an approval in writing varying the fuel standard for biodiesel as set out in the Fuel Standard (Biodiesel) Determination 2003. The approval was granted under section 13 of the FQSA.
The biodiesel complied with the standard for biodiesel as varied by the approval.
The approval was subject to the following conditions:
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- the fuel, subject to the approval, was to be supplied between specified months
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- the fuel was to be supplied by persons specified in the approval.
The conditions specified in the approval were met.
Reasons for Decision
The definition of each of the specified cleaner fuels in section 4 of the EGCFS Act includes the requirement that the fuel 'complies with the applicable fuel standard for such fuel'.
Section 4 of the EGCFS Act gives the definition of 'fuel standard' as a fuel standard made under the FQSA. The wording of the definition creates a nexus between the term 'fuel standard' for the purposes of the EGCFS Act and a fuel standard for the purposes of the FQSA. Therefore, the phrase 'the applicable fuel standard' is a reference to a fuel standard that is made under the FQSA.
Section 3 of the FQSA states that the objects of the Act are to regulate the quality of fuel supplied in Australia and to ensure that, where appropriate, information about fuel is provided when the fuel is supplied. To this end, the Minister administering the FQSA has made several determinations under section 21 of the FSQA that set out the fuel standards for particular fuels including the Fuel Standard (Biodiesel) Determination 2003 that sets out the fuel standard for biodiesel.
The Minister administering the FQSA may also, under section 13 of the FQSA, grant an approval to a person that varies a fuel standard in a specified way in respect of specified supplies of the fuel by the person or any other person specified in the approval. The Minister has granted a number of such approvals. A Notice of such approval is published in the Commonwealth of Australia Gazette.
The phrase 'the applicable fuel standard' for the purposes of the definition of each cleaner fuel in section 4 of the EGCFS Act is a reference to a fuel standard made under the FQSA for the fuel and therefore includes a fuel standard as varied under an approval granted under section 13 of the FQSA in relation to specified supplies of the fuel by the person or persons specified in the approval.
Therefore, a cleaner fuel will comply with 'the applicable fuel standard' for the purposes of the EGCFS Act where, the Minister administering the FQSA, grants under section 13 of the FQSA:
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- an approval in writing to a person varying a fuel standard in a specified way in respect of specified supplies of that fuel; and
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- the fuel supplied, that is subject to the approval, meets the fuel standard as varied by the approval; and
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- the conditions specified in the approval are met.
Legislative References:
Energy Grants (Cleaner Fuels) Scheme Act 2004
section 4
regulation 3 Fuel Quality Standards Act 2000
section 3
section 13
section 21
Other References:
Fuel Standard (Biodiesel) Determination 2003
Keywords
Fuel
ISSN: 1445-2782
| Date: | Version: | |
| 24 September 2008 | Original statement | |
| You are here | 3 July 2015 | Archived |