ATO Interpretative Decision

ATO ID 2006/267 (Withdrawn)

Excise

Cleaner fuels and permissions under section 61C of the Excise Act
FOI status: may be released

This ATO ID is withdrawn from 1 July 2015, the date the Energy Grants (Cleaner Fuels) Scheme Act 2004 was repealed.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 18 September 2003 up to and including 30 June 2015. Further guidance on the Energy Grants (Cleaner Fuels) Scheme can be found at Cleaner fuels grants scheme.

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

Status of this decision: Decision Withdrawn 3 July 2015.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 a person who holds a permission to deliver excisable fuel without entry under section 61C of the Excise Act 1901 (61C permission) a 'licensed person for the fuel' for the purposes of subsection 4(1) of the Energy Grants (Cleaner Fuels) Scheme Act 2004 (EGCFSA) if they obtain duty paid 'cleaner fuel' of the same type specified in their permission from premises that are not listed on their permission?

Decision

No. A person who obtains duty paid 'cleaner fuel' from premises other than those listed on their section 61C permission is not a 'licensed person for the fuel'.

Facts

A person holds a 61C permission which authorises them to deliver certain excisable fuel without entry. The permission specifies certain premises from which the person is permitted to deliver the fuel.

The fuel is a cleaner fuel as defined by subsection 4(1) of the EGCFSA.

The person obtains duty paid 'cleaner fuel' of the same type specified in their permission from premises that are not listed on their section 61C permission.

The person does not hold a manufacturer's licence or a storage licence.

Reasons for Decision

The cleaner fuels grants scheme provides for the payment of grants to certain entities that have particular dealings with cleaner fuels.

A cleaner fuel is a fuel that is defined within subsection 4(1) of the EGCFSA.

Section 5 of the EGCFSA contains the legislative requirements for provisional entitlement to a cleaner fuel grant and section 7 of the EGCFSA contains the disqualifying circumstances.

These provisions refer to the term 'licensed person for the fuel'. Specifically, this term occurs in subparagraph 5(1)(b)(iv), subparagraph 5(1)(g)(i), paragraph 5(4)(b) and paragraph 7(1)(a) of the EGCFSA.

Subsection 4(1) of the EGCFSA contains the following definition:

licensed person , for a fuel, means:

(a)

a person who is:

(i): a licensed manufacturer (as defined in the Excise Act 1901); or
(ii): a holder of a storage licence (as defined in the Excise Act 1901); or
(iii): a person specified in a permission given under section 61C of the Excise Act 1901; or
(iv): a person to whom a permission has been granted under section 69 of the Customs Act 1901.

In the drafting of the entitlement/disqualifying provisions, by using the phrase 'licensed person for the fuel', rather than merely referring to 'licensed person', the drafter has consistently linked the concept of a 'licensed person' with 'the fuel'. The phrase 'the fuel' clearly refers to a particular quantity of fuel which attracts a provisional entitlement to a grant under section 5 of the EGCFSA or is disqualified from provisional entitlement under section 7 of the EGCFSA.

Consequently, the term 'licensed person for the fuel' must be considered in the context of the particular fuel which is the subject of a provisional entitlement to a cleaner fuels grant. In addition, in determining whether the holder of a 61C permission is a licensed person for the fuel, one must consider whether the person has permission to deliver goods without entry from the premises where the particular fuel is being held. It follows that if a person holds a 61C permission, but the permission does not relate to the premises from which the fuel is obtained, the person will not be a licensed person for the fuel.

Date of decision: 18 September 2006

Legislative References:
Energy Grants (Cleaner Fuels) Scheme Act 2004
   subsection 4(1)
   section 5
   section 7

Excise Act 1901
Part VI
section 61C

Keywords
Excise
Fuel

Business Line: Indirect Tax

Date of publication: 22 September 2006

ISSN: 1445-2782

history

	Date:	Version:
	18 September 2006	Original statement
You are here →	3 July 2015	Archived

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