ATO Interpretative Decision
ATO ID 2006/285 (Withdrawn)
Excise
Excise: permission for unlicensed person to possess tobacco seed, plant or leafFOI status: may be released
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This ATO ID is withdrawn. section 117C of the Excise Act 1901 was repealed 25 August 2018. Despite its withdrawal, this ATO ID continues to be a precedential view in respect of the period the section was in force, being 7 September 2000 up to and including 24 August 2018.This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
Status of this decision: Decision withdrawn 17 January 2019.
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 grant permission under the Excise Act 1901 to a person who does not hold a producer, dealer or manufacturer licence that allows the person to possess tobacco seed, plant or leaf?
Decision
Yes. The Commissioner can grant permission under the Excise Act to a person who does not hold a producer, dealer or manufacturer licence that allows the person to possess tobacco seed, plant or leaf.
Facts
A person held a producer licence, in accordance with Part IV of the Excise Act, to produce tobacco seed, tobacco plant and tobacco leaf.
The person did not apply to renew the licence and the licence has expired.
At the time the licence expired the person was in possession of tobacco seeds and plants.
The person has now applied for a new licence.
No decision has yet been made on the application for the new licence.
Reasons for Decision
The Excise Act provides for controls over the possession, movement and production of tobacco seed, plant and leaf.
Section 117C of the Excise Act makes it an offence for a person, who does not hold a producer licence, dealer licence or manufacturer licence, to possess, without permission, material that is tobacco seed, tobacco plant or tobacco leaf.
Neither section 117C of the Excise Act nor any other sections of the Act provide the Commissioner with an explicit power to grant permission to a person who does not hold a producer licence, dealer licence or manufacturer licence to possess tobacco seed, plant or leaf.
Even though the Act does not provide express power to grant permission to a person, who does not hold a licence, to possess tobacco plant, seed, or leaf, an offence under section 117C of the Excise Act is not committed if the possession is with permission. It is therefore reasonable to conclude that the Commissioner can grant this permission.
Accordingly the Commissioner can grant permission, to an unlicensed person, to possess tobacco seed, plant or leaf.
Date of decision: 12 October 2006
Legislative References:
Excise Act 1901
section 117C
ATO ID 2006/286
Keywords
Excise
Excise collections
Tobacco
ISSN: 1445-2782
| Date: | Version: | |
| 12 October 2006 | Original statement | |
| You are here → | 17 January 2019 | Archived |
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