ATO Interpretative Decision
ATO ID 2008/74
ExcisePSO: complying with relevant Commonwealth, State and Territory legislation
FOI status: may be released
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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.
Is the Commonwealth, State or Territory legislation referred to in subregulation 4B(1) of the Product Grants and Benefits Administration Regulations (PGBA Regulations), legislation which stipulates the licences, permits and approvals that must be held when undertaking used oil recycling activities?
Yes. The Commonwealth, State or Territory legislation referred to in subregulation 4B(1) of the PGBA Regulations is legislation that stipulates the licences, permits and approvals that must be held when undertaking used oil recycling activities.
An entity conducts used oil recycling activities in several States and Territories of Australia.
The entity intends to register for product stewardship (oil) (PSO) benefits.
Reasons for Decision
Registration for PSO benefits is administered under the Product Grants Benefits and Administration Act 2000 (PGBAA). Subsection 9(3A) of the PGBAA sets out the specific requirements for registration for PSO benefits. Subparagraph 9(3A)(b)(i) of the PGBAA provides that, in relation to registration for PSO benefits, the Commissioner must be satisfied that the applicant complies with any regulations made in relation to compliance with relevant Commonwealth, State or Territory legislation that relates to recycling operations or enterprises.
Regulation 4B of the PGBA Regulations deals with the requirement for registration for PSO benefits under section 9 of the PGBAA. Subregulation 4B(1) of the PGBA Regulations states that the applicant 'must comply with relevant Commonwealth, State or Territory legislation relating to oil recycling operations or enterprises'.
In the Second Reading Speech to the Product Stewardship (Oil) (Consequential Amendments) Bill 2000 which inserted subsection 9(3A) into the PGBAA, the Parliamentary Secretary to the Minister for the Environment and Heritage said:
A claimant for product stewardship benefits will need to satisfy a number of requirements. The Commissioner of Taxation must be satisfied that a recycler holds both a licence as a manufacturer of excisable goods under section 34 of the Excise Act 1901 and an Australian business number. The claimant must also demonstrate that all necessary licences, permits and approvals to operate the business are held as required by relevant state and territory environmental protection agencies.
In addition, the Explanatory Statement to the Product Grants and Benefits Administration Amendment Regulations 2000 (No.1) states:
...Regulation 4A and 4B of the Product Grants and Benefits Administration Regulations 2000 (the Regulations) prescribe requirements for registration for a Product Stewardship (Oil) Scheme.
Registration for Product Stewardship (Oil) Benefit is subject to the applicant providing the ATO applicant must also comply with relevant state and territory legislation relating to recycling operations.
Therefore, it is evident from the discussions above that the legislation contemplated in regulation 4B of the PGBA Regulations is legislation that governs oil recycling operations. Generally this legislation is administered by Commonwealth, State or Territory environmental protection agencies.
The legislation may stipulate that certain licences, permits and approvals must be held by entities undertaking oil recycling activities and therefore, for the purposes of regulation 4B of the PGBA Regulations, an applicant for registration of PSO benefits must demonstrate that they comply with these specific requirements.Date of decision: 12 May 2008 Product Grants and Benefits Administration Regulations 2000
Second Reading Speech to the Product Stewardship (Oil) (Consequential Amendments) Bill 2000 (the Bill)
Explanatory Statement to the Product Grants and Benefits Administration Amendment Regulations 2000 (No. 1)
Product stewardship oil scheme