ATO Interpretative Decision

ATO ID 2003/1160 (Withdrawn)

Excise

Energy Grants (Credits) Scheme: off-road credit - residential premises
FOI 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This ATO ID is withdrawn from 1 July 2012, the date the Energy Grants (Credits) Scheme Act 2003 was repealed.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Status of this decision: Decision Withdrawn 1 July 2012

CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 the accommodation provided for the employees of a client engaged in fishing operations 'residential premises' for the purposes of section 4 of the Energy Grants (Credits) Scheme Act 2003 (EGCSA)?

Decision

Yes. The accommodation provided for the employees of a client engaged in fishing operations is 'residential premises' for the purposes of section 4 of the EGCSA.

Facts

The client is engaged in fishing operations and provides accommodation for employees. Due to the remote location, employees are required to work on a two weeks on and one week off roster basis. Diesel generators are used to provide power to the accommodation.

Reasons for Decision

Paragraph 53(4)(b) of the EGCSA provides that an off-road energy grant is payable to a person who purchases diesel fuel for use at residential premises to generate electricity to meet the domestic requirements of the residents of the 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:
(c): premises used in the business of a hotel, motel or boarding house or a similar business...

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 precursor to the Energy Grants (Credits) Scheme administered under the Excise Act 1901 and the Customs Act 1901 .

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 or on a yacht or some other abode.

In this case, the employees are rostered to work for two weeks and then they have a week off. For the two weeks the employees are rostered to work, they eat, sleep, work and have their recreation time at the accommodation provided.

The two weeks on, one week off pattern continues for a sustained period of time. Therefore, a requisite continuity of association between the accommodation and the employees exists and as such, the accommodation is considered to be 'residential premises' for the purposes of section 4 of the EGCSA.

Date of decision: 21 November 2003

Legislative References:
Energy Grants (Credits) Scheme Act 2003
paragraph 53(4)(b)
section 4

Case References:
Collector of Customs v. Perkins Shipping Pty Ltd
(1989) 24 FCR 520

Koitaki Para Rubber Estates Pty Limited v. Federal Commissioner of Taxation
   (1941) 64 CLR 241
   (1941) 6 ATD 82
   (1941) 2 AITR 136

Related ATO Interpretative Decisions
ATO ID 2003/700

Keywords
EGCS electricity generation
EGCS off-road
EGCS off-road diesel
EGCS residential electricity generation
EGCS use to generate electricity at residential premises
Energy grants (credits) scheme

Business Line: Indirect Tax

Date of publication: 24 December 2003

ISSN: 1445-2782

history

	Date:	Version:
	21 November 2003	Original statement
You are here →	1 July 2012	Archived

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