ATO Interpretative Decision
ATO ID 2006/286
Excise
Excise: permission for unlicensed person to possess tobacco seed, plant or leaf - subject to conditions or restrictionsFOI status: may be released
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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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 a permission to possess tobacco seed, plant, seed or leaf granted to a person who does not hold a producer, dealer or manufacturer licence be subject to conditions or restrictions?
Decision
Yes. A permission to possess tobacco seed, plant or leaf granted to a person who does not hold a producer, dealer or manufacturer licence can be subject to conditions or restrictions.
Facts
A person held a producer licence granted under Part IV of the Excise Act 1901 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 seed and plant.
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 see, 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, tobacco seed, tobacco plant or tobacco leaf.
Although the Act does not provide the Commissioner with an express power to grant permission to an unlicensed person to possess tobacco seed, plant or leaf, the fact that section 117C of the Excise Act provides that it is not an offence if permission has been obtained is sufficient to conclude that the Commissioner has the power to grant such permission.
As there is no explicit power to grant the permission, the Act does not address whether such permission can be granted subject to conditions or restrictions. By contrast, the Act provides the Commissioner with the express power to issue licences and movement permissions subject to conditions.
As the person no longer holds a relevant licence they will be committing an offence if they possess tobacco seed, plant or leaf without permission. It is reasonable to conclude that any permission granted by the Commissioner under section 117C of the Excise Act may be issued subject to various conditions. Otherwise, the Commissioner would have no option but to grant a carte blanche permission to possess tobacco seed, plant or leaf regardless of its origin, the manner in which the goods are secured, or any other pertinent factors. It follows that the Commissioner may condition the granting of a permission for the purposes of section 117C. Such conditions could include:
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- the time that the permission is valid for
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- the place where possession is allowed, or
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- the manner in which the goods are secured.
Accordingly we conclude that a permission to possess tobacco seed, plant or leaf granted to a person who does not hold a producer, dealer or manufacturer licence can be subject to conditions or restrictions.
Date of decision: 12 October 2006
Legislative References:
Excise Act 1901
section 117C
ATO ID 2006/285
Keywords
Excise
Excise collections
Tobacco
ISSN: 1445-2782
| Date: | Version: | |
| You are here → | 12 October 2006 | Original statement |
| 17 January 2019 | Archived |
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