ATO Interpretative Decision

ATO ID 2004/953 (Withdrawn)

Excise

Energy Grants (Credits) Scheme: registration when one partner is deceased and the ultimate residue of the partnership has been distributed
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This ATO ID is withdrawn from 1 July 2012, the date the Energy Grants (Credits) Scheme Act 2003 was repealed.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Status of this decision: Decision Withdrawn 1 July 2012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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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

Can the Commissioner register a partnership for an energy grant under section 9 of the Product Grants and Benefits Administration Act 2000 (PGBAA) if one of the two partners of the partnership has died and the ultimate residue of the partnership's estate has been distributed?

Decision

No. The Commissioner cannot register a partnership for an energy grant under section 9 of the PGBAA if one of the two partners of the partnership has died and the ultimate residue of the partnership's estate has been distributed.

Facts

A client was a partner in a two-person partnership in which the other partner is deceased.

The partnership has never registered for the Energy Grants (Credits) Scheme (EGCS).

The surviving partner wishes to register for EGCS and claim for fuel which was purchased and used by the partnership in activities eligible for an energy grant.

All of the remaining assets of the partnership have been sold off, any liabilities have been paid out, the surviving partner and the trustee of the deceased partner's estate have received their final payments, the partnership is not owed any money, and all bank accounts have been closed.

Reasons for Decision

Under section 9 of the PGBAA the Commissioner must register 'you' for an energy grant if you meet certain eligibility requirements.

In accordance with section 5 of the PGBAA 'you' applies to entities generally, unless its application is specifically limited.

Under subsection 51(1) of the PGBAA a partnership is treated, for the purposes of that Act and the entitlement Acts as if it were a person.

The Partnership Act of each state and territory provides:

Subject to any agreement between the partners, every partnership is dissolved as regards all of the partners by the death or bankruptcy of any partner upon the death of a partner.

and that:

After the dissolution of a partnership the authority of each partner to bind the firm, and the other rights and obligations of the partners, continue, notwithstanding the dissolution, so far as may be necessary to wind up the affairs of the partnership, and to complete transactions begun but unfinished at the time of dissolution, but not otherwise...

The restriction on the partners' authority is for the purposes of winding up the affairs of the partnership and to complete transactions begun but unfinished. The partner may not begin new transactions in the exercise of their rights after dissolution of the partnership.

The dissolution of the partnership is taken to have occurred once the partnership's affairs have been finalised and the ultimate residue of the partnership's estate has been distributed.

In this instance, all of the remaining assets of the partnership have been sold off, any liabilities have been paid out, the surviving partner and the trustee of the deceased partner's estate have received their final payments, the partnership is not owed any money, and all bank accounts have been closed. Consequently, the ultimate residue of the partnership's estate has been distributed.

Therefore, the partnership is dissolved and no longer exists as a person or entity for the purposes of the PGBAA.

Accordingly, the Commissioner cannot register a partnership for an energy grant under section 9 of the PGBAA as there is no legal entity to register.

Date of decision: 24 November 2004

Legislative References:
Product Grants and Benefits Administration Act 2000
   section 5
   section 15
   subsection 51(1)

Related ATO Interpretative Decisions
ATO ID 2004/954

Other References:
Partnership Act 1963 (ACT)
Partnership Act 1892 (NSW)
Partnership Act (NT)
Partnership Act 1891 (Qld)
Partnership Act 1891 (SA)
Partnership Act 1891 (Tas)
Partnership Act 1958 (Vic)
Partnership Act 1895 (WA)

Keywords
Energy grants (credits) scheme
EGCS general
EGCS registration

Business Line: Indirect Tax

Date of publication: 3 December 2004

ISSN: 1445-2782

history

	Date:	Version:
	24 November 2004	Original statement
You are here →	1 July 2012	Archived

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