ATO Interpretative Decision

ATO ID 2004/533 (Withdrawn)

Excise

• This ATO ID is withdrawn from the database because it contains a view in respect of the diesel fuel rebate provisions of the Excise Act 1901 and or the Customs Act 1901 that were repealed with effect from 1 July 2003.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.

Issue

Is an Australian agent entitled to lodge a diesel fuel rebate application under subsection 78A(1) of the Excise Act 1901 (Excise Act) or subsection 164(1) of the Customs Act 1901 (Customs Act) on behalf of an overseas entity in respect of diesel fuel the entity has purchased for use in an eligible activity?

Decision

Yes, an Australian agent is entitled to lodge a diesel fuel rebate application under subsection 78A(1) of the Excise Act or subsection 164(1) of the Customs Act on behalf of an overseas entity in respect of diesel fuel the entity has purchased for use in an eligible activity provided that:

(a)

the agent provides evidence that they have been duly authorised by the principal to make the diesel fuel rebate claim; and

(b)

the overseas entity satisfies all the usual prescribed conditions and restrictions that apply to any person entitled to, and making an application for, a diesel fuel rebate.

Facts

A shipping agent wishes to make a claim for diesel fuel rebate on behalf of an overseas entity. The overseas entity has purchased diesel fuel for use by it in an activity that is eligible for a diesel fuel rebate.

Reasons for Decision

Subsection 78A(1) of the Excise Act and subsection 164(1) of the Customs Act state:

A rebate is, subject to subsections (2) and (4a) and to such conditions and restrictions as are prescribed ...payable to a person who purchases diesel fuel for use by the person ...

In addition, subsection 78A(1A) of the Excise Act and 164(1A) of the Customs Act make it clear that an application for rebate must be made in the approved form by the person who has entitlement to the rebate, that is, the person who has purchased the diesel fuel for use in one of the defined activities that are eligible for a diesel fuel rebate.

In this instance, the overseas entity (the principal) has purchased the diesel fuel for use by it in an eligible activity, and therefore has an entitlement to a diesel fuel rebate.

The legal concept of agency refers to a relationship that gives a party (the 'agent') capacity to create binding relations between the party giving that capacity or authority (the principal) and third parties (see International Harvester Company of Australia Pty Ltd v. Carrigan's Hazeldene Pastoral Lease Co (1985) 100 CLR 644 at 652).

At general law, the act of an agent authorised by a principal to act on the principal's behalf binds the principal. Therefore, an authorised agent can make an application for a rebate on behalf of the principal who is entitled to the rebate.

However, such ability is limited to the extent that:

(a)

the agent is able to demonstrate that they have been duly authorised by the principal to act on their behalf, by providing a written authority from the principal appointing the agent to assess and claim rebate entitlement on behalf of the principal. This would include authority for the ATO to direct rebate payments to the agent's bank account, if this is what the principal wanted to do; and

(b)

the principal is able to satisfy all the usual prescribed conditions and restrictions that apply to any person entitled to, and making an application for, a diesel fuel rebate. This would include providing documents as contained in regulation 128D of the Customs Regulations 1926 and regulation 57A of the Excise Regulations 1925 evidencing their identity and address when making diesel fuel rebate claims. A further requirement would include the provision of any additional information requested in accordance with regulation 128DA of the Customs Regulations or regulation 57B of the Excise Regulations.

Legislative References:
Customs Act 1901
   subsection 164(1)
   subsection 164(1A)

Case References:
International Harvester Company of Australia Pty Ltd v. Carrigan's Hazeldene Pastoral Lease Co
   (1985) 100 CLR 644

Related ATO Interpretative Decisions
ATO ID 2004/454

Keywords
DFRS claims
Diesel fuel rebate scheme

Business Line:  Excise

Date of publication:  2 July 2004

ISSN: 1445-2782