ATO Interpretative Decision

ATO ID 2003/241 (Withdrawn)

Excise

Diesel fuel rebate scheme: Eligible activity - vessels as residential premises
FOI status: may be released

This ATO ID is withdrawn from the database because it contains a view in respect of the diesel fuel rebate provisions of the Excise Act 1901 and or the Customs Act 1901 that were repealed with effect from 1 July 2003. Despite its withdrawal from the database, this ATO ID continues to be a precedential view in respect of decisions for fuel purchased before 1 July 2003.

This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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

For the purposes of the Diesel Fuel Rebate Scheme, are the living quarters provided for the crew on a vessel, 'residential premises' as that term is defined in subsection 164(7) of the Customs Act 1901)?

Decision

Yes. On a vessel, the living quarters of the crew can be 'residential premises' as defined in subsection 164(7) of the Customs Act if there is a sufficient continuity of association between the vessel and the members of the crew.

Facts

A vessel visits an Australian port.

Throughout the vessel's voyages the crew eats, sleeps, works and has recreation time on the vessel. When the vessel ties up at the port, the crew members spend short periods ashore. However some crew remain on board at all times.

Reasons for Decision

Paragraph 78A(1)(b) of the Excise Act 1901 and paragraph 164(1)(b) of the Customs Act provide that a rebate is payable to a person who purchases diesel fuel for use by them at a residential premises to generate electricity to meet the domestic requirements of the residents of the premises:

(b)

at residential premises to generate electricity for use in:

(i): providing food and drink for
(ii): providing lighting, heating, air-conditioning, hot water or similar amenities for; or
(iii): meeting other domestic requirements of

residents of the premises; ...

Subsection 164(7) of the Customs Act 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; ...

The definition of '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: Collector of Customs v. Perkins Shipping Pty Ltd (1989) 24 FCR 520; (1989) 85 ALR 279; (1989) 10 AAR 119). 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 situate, 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 crew members eat, sleep, work and have their recreation time on the vessel, except for short periods ashore and during the vessel's time in port, certain crew remain on board at all times. Therefore, a requisite continuity of association between the vessel and its crew exists and as such, the vessel is considered to be 'residential premises'.

Date of decision: 12 February 2003

Legislative References:
Customs Act 1901
subsection 164(7)
paragraph 164(1)(b)

Excise Act 1901
paragraph 78A(1)(b)

Case References:
Collector of Customs v. Perkins Shipping Pty Ltd
   (1989) 24 FCR 520
   (1989) 85 ALR 279
    (1989) 10 AAR 119

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 2002/953
ATO ID 2003/242
ATO ID 2003/243

Keywords
Excise
Excise payments
DFRS generation of electricity
DFRS residential premises
Diesel
Diesel fuel rebate scheme

Business Line: Excise

Date of publication: 11 April 2003

ISSN: 1445-2782

history

	Date:	Version:
	12 February 2003	Original statement
You are here	8 January 2010	Archived

Copyright notice

You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).