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Ruling

Subject: Fuel tax credits - eligibility and calculation methodology

Question 1:

Are you entitled to a fuel tax credit at the partial rate for taxable fuel used in heavy vehicles and registered plant and equipment with a gross vehicle mass (GVM) of greater than 4.5 tonnes travelling on public roads for the period 1 July 2007 to 31 December 2011?

Answer: Yes.

Question 2:

Are you entitled to a fuel tax credit at the partial rate for that portion of taxable fuel used in a street sweeper with a GVM of greater than 4.5 tonnes for the travel it undertakes on public roads for the period 1 July 2007 to 31 December 2011?

Answer: Yes.

Question 3:

Are you entitled to a fuel tax credit for that portion of taxable fuel used in a street sweeper with a GVM of greater than 4.5 tonnes when undertaking road maintenance by sweeping the streets for the period 1 July 2007 to 30 June 2008?

Answer: No.

Question 4:

Are you entitled to fuel tax credits for taxable fuel used in light vehicles with a GVM of less than 4.5 tonnes travelling on public roads between work sites and to and from their depots?

Answer: No.

Question 5:

Are you entitled to fuel tax credits for taxable fuel used in other plant and equipment that undertake various off-road activities for the period 1 July 2007 to 30 June 2008?

Answer: No.

Question 6:

Are you entitled to fuel tax credits at the half rate from 1 July 2008, for taxable fuel used in:

· a street sweeper with a GVM of greater than 4.5 tonnes for that portion of the taxable fuel used in undertaking road maintenance by sweeping the streets

· light vehicles with a GVM of less than 4.5 tonnes used off public roads, and

· other plant and equipment that undertake various off-road activities?

Answer: Yes.

Question 7:

Are you entitled to fuel tax credits at the half rate for taxable fuel used in vehicles, plant and equipment travelling to and from their depots in the course of carrying out off-road activities from
1 July 2008?

Answer: No.

Question 8:

Are you entitled to fuel tax credits at the half rate for taxable fuel used in vehicles, plant and equipment where short distances are travelled on public roads for the purpose of moving/relocation between worksites in the course of carrying out various off-road activities from 1 July 2008?

Answer: Yes.

Question 9:

Can you use any method considered to be fair and reasonable for the purpose of calculating your fuel tax credit entitlements?

Answer: Yes.

Question 10:

Are you required to apportion between those activities that are excluded from an entitlement to fuel tax credits, those activities that incur the partial rate of fuel tax credits and those activities that incur the half rate of fuel tax credits?

Answer: Yes.

This ruling applies for the following periods:

2007-08 income period

2008-09 income period

2009-10 income period

2010-11 income period

2011-12 income period

The scheme commences on:

1 July 2007

Relevant facts and circumstances

You acquire taxable fuel for use in your business activities, including vehicles with a gross vehicle mass (GVM) greater than 4.5 tonnes and plant and equipment primarily used for off-road activities.

You are registered for goods and services tax (GST) and fuel tax credits. As you have not claimed fuel tax credits in the past, you have submitted a methodology you intend to apply to determine your historical and future claims.

You procure fuel using fuel cards and hold separate fuel cards for each registered vehicle and registered plant and equipment. Each of these fuel cards is issued in respect of a specific registration number. You also hold a number of fuel cards to capture fuel usage for the unregistered plant and equipment.

Each registered fuel card can be used to acquire fuel solely for the registered vehicle for which the fuel card is issued, and nothing else. You state this policy equally applies to the use of plant and equipment fuel cards as no vehicles can be re-fuelled using these fuel cards. You regularly monitor your fuel usage and related business activities and review the fuel card reports.

Other than the street sweeper, none of your activities involve road maintenance or construction.

Vehicles with a GVM greater than 4.5 tonnes

You have a number of vehicles with a GVM greater than 4.5 tonnes in your asset registry which are used to transport goods from one place to another. These vehicles travel both on and off public roads. You also utilise a backhoe with a GVM of 4.5 tonnes which travel both on and off-road, and which you refer as 'registered plant and equipment'.

You state these vehicles were manufactured on or after 1 January 1996.

You have been identified and excluded vehicles with a GVM of less than 4.5 tonnes and you propose to use a constructive method to calculate fuel tax credits for each eligible vehicle that can be used.

Street Sweepers

You operate a diesel powered street sweeper with a GVM of 10.4 tonnes that is used for sweeping, cleaning, washing and maintaining areas with metropolitan areas. It uses fitted brushes to sweep the public roads and collect debris by vacuuming.

The street sweeper is fitted with two clocks, one which records the total time (in hours), once the street sweeper's engine is started, and the other which separately records the time spent undertaking the maintenance activity (referred to as the 'maintenance clock').

You state that the clocks started with a zero reading when the street sweeper was first purchased and have been recording time since, and have been never been reset.

You propose using a calculated percentage for claiming your fuel tax credits based on the time spent by the street sweeper in performing maintenance activities.

You state its usage has been consistent over a period of time as it follows a predetermined route and routine but that going forward, you will keep note of any significant changes in the use of the street sweeper and necessary changes will be made to the methodology used.

Other vehicles, plant and equipment

You use various registered plant and equipment which you state have been designed for and mainly used off-road for activities.

You also utilise a number of light vehicles/plant and equipment with a GVM less than 4.5 tonnes that travel both on and off public roads and other plant and equipment that have a GVM of less than 4.5 tonnes which are transported by towage to, from and between sites to perform works.

You contend the backhoe and light vehicles/plant and equipment that travel on public roads are not vehicles designed for on-road travel and do not ordinarily travel on public roads.

It is your view that the distances travelled on public roads by those vehicles that can self propel are only short distances. You consider the on-road use of this plant and equipment to be insignificant in comparison to the time spent and fuel incurred on the work site and thus your position is that this travel is incidental to the main off-road use and as such eligible to fuel tax credits at the half rate from 1 July 2008.

Relevant legislative provisions

Fuel Tax Act 2006 section 41-5

Fuel Tax Act 2006 subdivision 41-B

Fuel Tax Act 2006 section 41-20

Fuel Tax Act 2006 section 43-10

Fuel Tax Act 2006 subsection 43-10(3)

Fuel Tax Act 2006 subsection 43-10(4)

Fuel Tax (Consequential and Transitional Provisions) Act 2006 Division 1 of Part 3 of Schedule 3

Fuel Tax (Consequential and Transitional Provisions) Act 2006 subitem 10(1) of Schedule 3

Fuel Tax (Consequential and Transitional Provisions) Act 2006 subparagraph 10(1)(b)(i) of Schedule 3

Fuel Tax (Consequential and Transitional Provisions) Act 2006 subparagraph 10(1)(b)(ii) of Schedule 3

Fuel Tax (Consequential and Transitional Provisions) Act 2006 subitem 10(3) of Schedule 3

Fuel Tax (Consequential and Transitional Provisions) Act 2006 Division 2 of Part 3 of Schedule 3

Fuel Tax (Consequential and Transitional Provisions) Act 2006 subitem 11(1) of Schedule 3

Fuel Tax (Consequential and Transitional Provisions) Act 2006 subparagraph 11(1)(b)(i) of Schedule 3

Fuel Tax (Consequential and Transitional Provisions) Act 2006 subparagraph 11(1)(b)(ii) of Schedule 3

Fuel Tax (Consequential and Transitional Provisions) Act 2006 subitem 11(3) of Schedule 3

Fuel Tax (Consequential and Transitional Provisions) Act 2006 subitem 11(6) of Schedule 3

Energy Grants (Credits) Scheme Act 2003 section 8

Energy Grants (Credits) Scheme Act 2003 subsection 8(a)

Energy Grants (Credits) Scheme Act 2003 paragraph 8(a)(i)

Energy Grants (Credits) Scheme Act 2003 paragraph 8(a)(ii)

Energy Grants (Credits) Scheme Act 2003 paragraph 8(a)(iii)

Energy Grants (Credits) Scheme Act 2003 section 43

Energy Grants (Credits) Scheme Act 2003 subsection 43(1)

Energy Grants (Credits) Scheme Act 2003 subsection 43(2)

Energy Grants (Credits) Scheme Act 2003 subparagraph 43(2)(a)

Reasons for decision

Section 41-5 of the Fuel Tax Act 2006 (FTA) provides that you are entitled to a fuel tax credit for taxable fuel that you acquire for use in carrying on your enterprise if you are registered for GST. However this entitlement is affected by Divisions 1 and 2 of Part 3 of Schedule 3 to the Fuel Tax (Consequential and Transitional Provisions) Act 2006 (FTCTPA) which operate to restrict this entitlement to specific activities and continue the previous entitlement provisions of the Energy Grants (Credits) Scheme Act 2003 (EGCSA).

You have a number of vehicles and plant and equipment with a gross vehicle mass (GVM) greater than 4.5 tonnes in your asset registry. These vehicles are used to transport goods from one place to another and are used both on and off-road. You also utilise a backhoe with a GVM greater than 4.5 tonnes which similarly, is used both on and off-road.

You operate a diesel powered street sweeper with a GVM of greater than 4.5 tonne that is used for sweeping, cleaning, washing and maintaining areas within the metropolitan areas. You also operate a number of light vehicles/plant and equipment both on and off public roads and other plant and equipment in undertaking various off-road activities.

With the exception of the street sweeper, none of your activities involve road maintenance or construction.

Each of these activities will be considered in turn

Heavy vehicles (>4.5 tonnes)

Travel & incidental use of vehicles travelling on public roads

The relevant provisions for travel on a public road are contained in subitems 10(1) and 11(1) of Schedule 3 of the FTCTPA.

Subparagraph's 10(1)(b)(i) and 11(1)(b)(i) of Schedule 3 of Part 3 of the FTCTPA provide that an entitlement to a fuel tax credit arises under section 41-5 of the FTA if you acquire taxable fuel for use in a vehicle travelling on a public road.

Further, subparagraph's 10(1)(b)(ii) and 11(1)(b)(ii) of Schedule 3 of Part 3 of the FTCTPA provide that an entitlement to a fuel tax credit arises under section 41-5 of the FTA if you acquire taxable fuel for incidental use in relation to a vehicle covered by subparagraph's 10(1)(b)(i) and11(1)(b)(i).

The meaning of 'incidental use' is provided for at section 8 of the EGCSA which states that each of the following, whether or not it takes place on a road, is an incidental use in relation to a vehicle:

(a) powering the vehicle, or auxiliary equipment in or on the vehicle, while:

(i) goods to be transported in or on the vehicle are loaded or goods that have been so transported are unloaded; or

(ii) passengers who are to be transported in or on the vehicle board or passengers who have been so transported alight; or

(iii) the vehicle is moved to a place where anything in subparagraph (i) or (ii) is to happen or from a place where any such thing has happened;

…

The Commissioner considers that 'incidental use' that occurs while the vehicle is travelling on a public road is integral to and an ordinary incident of a journey undertaken by a vehicle travelling on a public road.

As such, where you utilise taxable fuel in your heavy vehicles that travel on public roads to reach destinations as part of carrying on your enterprise and/or for the purpose of transporting goods, including all ordinary incidents that arise in the course of a journey (i.e.: loading and unloading of such goods), you will satisfy subitem 10(1) and 11(1) of the FTCTPA and an entitlement to a fuel tax credit will arise under section 41-5 of the FTA.

For the purposes of the FTA, section 43-10 applies in the context of reducing the amount of your fuel tax credit where an entitlement has arisen. Subsection 43-10(3) provides that where fuel is acquired for use in a vehicle for travelling on a public road, the amount of your fuel tax credit is reduced by the amount of the road user charge.

Accordingly, you are entitled to a fuel tax credit at the partial rate for taxable fuel used in heavy vehicles and registered plant and equipment with a GVM of greater than 4.5 tonnes travelling on public roads for the period 1 July 2007 to 31 December 2011.

Street sweeper - travel and movement on public roads

Your street sweeper utilises fitted brushes to sweep the public roads and collect debris by vacuuming. You state this activity is only undertaken in metropolitan areas.

The Commissioner considers that the movement of a street sweeper whilst engaged in road maintenance (in this case, sweeping and vacuuming) is not 'travelling' on a public road.

Fuel Tax Ruling FTR 2008/1 Fuel Tax: vehicle's travel on a public road that is incidental to the vehicle's main use and the road user charge provides the context for the Commissioners view and states that travelling and travel mean to go from one place to another place or to move from one point to another point. FTR 2008/1 provides that travel includes all the ordinary incidents of a journey undertaken by a vehicle, including stopping in the course of a journey and the use of auxiliary equipment on the vehicle.

Further, FTR 2008/1 explains that the movement of a vehicle engaged in road construction, repair or maintenance to and from a road work site is 'travelling' for the purposes of the FTA. However, 'travelling' does not include the movement of a vehicle on a public road while the vehicle is engaged in construction, repair or maintenance of the road.

In operating your street sweeper it is travelling when it leaves the depot up to the point where it commences cleaning the road. Travel recommences when it ceases cleaning the road and returns to the depot. Travel includes the transportation of collected rubbish to the waste collection site. Like that of a grader it is not considered to be travelling on a public road where it is undertaking the specific purpose work (e.g. street sweeping and road construction).

Accordingly, you are entitled to a fuel tax credit at the partial rate for that portion of the diesel used in the street sweeper for the travel it undertakes on public roads, for the period 1 July 2007 to 31 December 2011.

Movement of street sweeper on public roads

However, as 'movement' is not considered 'travel' for the purposes of the fuel tax provisions we must consider that portion of the diesel used in the street sweeper for the travel it undertakes on public roads with its brushes down.

Subitem 10(3) of Schedule 3 of Part 3 of the FTCTPA provide that you will be entitled to a fuel tax credit under section 41-5 of the FTA if you were entitled to an on-road credit under the EGCSA.

Section 43 of the EGCSA provides for entitlement to vehicles with a GVM of 4.5 tonnes or more, but less than 20 tonnes where you satisfy the following requirements:

· you purchase diesel for use in a registered vehicle that is a vehicle for transporting passengers or goods, or incidental use in relation to such a vehicle

· you use the fuel in operating the vehicle on a road in Australia on a journey.

Subsection 43(2) of the EGCSA provides that a journey includes:

(i) travel starting at a point outside a metropolitan area to another point outside the metropolitan area; or

(ii) travel starting at a point outside a metropolitan area to a point inside a metropolitan area and vice versa; or

(iii) travel between different metropolitan areas.

A journey does not include travel within a metropolitan area and as such, no entitlement would exist in that instance.

As the street sweeper you use operates within a metropolitan area only, this is not considered a journey as defined in the EGCSA. As such, there would be no entitlement to an on-road credit under the EGCSA.

As such, subitem 10(3) of the FTCTPA is not satisfied.

Accordingly, you are not entitled to a fuel tax credit for taxable fuel used in your street sweeper with a GVM of greater than 4.5 tonnes for that portion of the diesel used in undertaking road maintenance by sweeping the streets for the period 1 July 2007 to 30 June 2008.

Light vehicles travelling on public roads

You utilise a number of light vehicles/plant and equipment which have a GVM less than 4.5 tonnes and travel both on and off public roads.

Whilst it is your view that this plant and equipment have been designed for, and are mainly used to undertake off-road activities, they are also vehicles that travel on public roads. That is, they are required to travel on public roads at their own propulsion for travel between sites and for travel to and from the depot.

Section 41-20 of the FTA provides that you are not entitled to a fuel tax credit for the use of fuel in a vehicle with a GVM of 4.5 tonnes or less travelling on a public road. As such, where taxable fuel has been used in light vehicles for travelling on a public road no entitlement will arise under the FTA.

Accordingly, you are not entitled to fuel tax credits for taxable fuel used in light vehicles with a GVM of less than 4.5 tonnes that travel on public roads between work sites and to and from their depots.

Other activities, including off-road use of backhoes with GVM greater than 4.5 tonnes

You also undertake a range of off-road activities, that is they are undertaken off public roads. You use a variety of vehicles and plant and equipment in undertaking these works, including the backhoes, light vehicles and other plant and equipment.

The use of taxable fuel within these vehicles, plant and equipment when operating off public roads are not activities that would otherwise fall within the fuel tax provisions prior to 1 July 2008, nor are they activities that fall for consideration under the EGCSA.

Accordingly, you are not entitled to fuel tax credits for taxable fuel used in other plant and equipment that undertake off-road activities for the period 1 July 2007 to 30 June 2008.

Expanded fuel tax credits from 1 July 2008

From 1 July 2008, subitem 11(6) of Schedule 3 of the FTCTPA also provides that if you would not have been entitled to an on-road or an off-road credit under the EGCSA for a quantity of fuel you acquire and use in your business, an entitlement to a fuel tax credit arises under section 41-5 the FTA. The amount of the credit is half of the amount of the full rate, that is 50%.

For the period prior to 1 July 2008, you were not entitled to fuel tax credits for:

· that portion of taxable fuel used in your street sweeper with a GVM of greater than 4.5 tonnes used in undertaking road maintenance by sweeping the streets

· taxable fuel used in light vehicles with a GVM of less than 4.5 tonnes, and

· taxable fuel used in other plant and equipment that undertook off-road activities/off public roads.

Subdivision 41-B of the FTA provides for a number of disentitlement rules for fuel tax credits. That is, there is no entitlement to a fuel tax credit in the following circumstances:

· if another entity was previously entitled

· for fuel used in a light vehicles on a public road

· for fuel used in motor vehicles that do not meet the environmental criteria, or

· for fuel used in aircraft.

Accordingly, for the period 1 July 2008 to 30 June 2012, you are entitled to a fuel tax credit at the half rate for:

· that portion of diesel fuel used in your street sweeper with a GVM of greater than 4.5 tonnes used in undertaking road maintenance by sweeping the streets

· taxable fuel used in light vehicles with a GVM of less than 4.5 tonnes when used off public roads, and

· taxable fuel used in other plant and equipment undertaking the specific off-road activities/off public roads.

'Main use' in relation to a vehicle

It is your view that the distances travelled on public roads by those vehicles that can self propel (that is, backhoes, and the light vehicles/plant and equipment). You consider the on-road use of this plant and equipment to be insignificant in comparison to the time spent and fuel incurred on the work site and thus your position is that this travel is incidental to the main off-road use and as such eligible to fuel tax credits at the half rate from 1 July 2008.

Your contentions are considered below.

Light vehicles

As highlighted above, section 43-10 of the FTA applies in the context of reducing the amount of your fuel tax credit where an entitlement has arisen. In the case of light vehicles travelling on public road, section 41-20 of the FTA specifically provides no entitlement will arise under section 41-5 of the FTA for taxable fuel used in a vehicle with a GVM less than 4.5 tonnes.

As such, section 43-10 does not apply in this context.

Heavy vehicles (backhoe)

In the context of those activities where an entitlement does arise for heavy vehicles travelling on public roads, subsection 43-10(4) requires an entity to identify a vehicle's main use for the purpose of determining if the travel on a public road is incidental to that main use.

The concept of main use applies to 'the vehicle' which suggests it applies to a particular vehicle, not the class of vehicle to which the vehicle belongs, and looks at this particular vehicle's typical pattern of use. The singular expression 'main use' also implies that a vehicle has a particular use that can be identified as its main use.

A vehicle's 'main use' is a question of fact, to be decided on the facts and circumstances of each case by a process of evaluation and after weighing a range of factors including:

· the purpose for which the vehicle is designed;

· any specific alterations or modifications which make the vehicle's use different from the use for which it was originally designed;

· the ordinary pattern of use of the vehicle;

· time spent or distance travelled (as appropriate) by the vehicle in carrying out a particular operation, compared to the time or distance spent in carrying out other operations; and

· the nature of the entity's enterprise.

The main use of a vehicle will usually be self-evident and indicated by the vehicle's design. However, it is also necessary to consider the way in which the vehicle is actually used.

Where a vehicle is purpose-built or permanently modified to carry out a specialised function and is used to carry out that function, the main use of that vehicle may be that specialised function even though the vehicle does not spend the majority of its operating time carrying out that function. This is because other activities that the vehicle carries out, such as travelling to and from work sites, serve that specialised function rather than dictate the vehicle's main use.

In determining whether a vehicle's travel is incidental to its main use, a practical commonsense approach needs to be taken in weighing and evaluating a range of factors having regard to the facts and circumstances of each case.

Where a special purpose vehicle, such as a mobile crane, concrete pump, mobile elevated working platform or drilling rig uses a public road to travel, for example, to or from a work site, it is considered such vehicles are designed to travel on a public road. Further, they are often (but not always) over mass vehicles having a substantial impact on roads. Travel by such vehicles in the course of its relocation from one site (for example, depot) to another (for example, work site) is similar in nature to road transportation.

As such, it is reasonable to consider that travel on a public road is never incidental because it is so integral to the use of the vehicle so as to become part of or inseparable from its main use. However, travel on a public road by a vehicle that is designed primarily for off-road use and which is used mainly in off-road activities will be considered incidental where it occurs in the course of the vehicle's off-road use and:

· is insubstantial in extent; or

· is so interspersed with the vehicle's off-road use (its main use) so as to be part of that off-road use.

Incidental travel by these vehicles is minor in extent. However, travel on a public road by a vehicle of this kind is not incidental where the vehicle uses the road to travel to or from an off-road work site or to and from the depot to where they are stored.

It is considered that you are not entitled to fuel tax credits at the half rate for taxable fuel used in plant and equipment travelling on public roads between work sites (relocation) or travel to and from their depots in the course of carrying out eligible off-road activities from 1 July 2008 as any travel has either been considered as eligible (heavy vehicles) or ineligible (light vehicles) where the disentitlement provisions still apply.

In this case, apportionment between the various activities and fuel tax credit rates is necessary.

Finally, it is considered that you are entitled to fuel tax credits at the half rate for taxable fuel used in plant and equipment (backhoes) where short distances are travelled on public roads (for example where they cross a public road to get from one part of a construction site to another), in the course of carrying out eligible off-road activities from 1 July 2008.

Calculation Methodology

You propose a number of fuel tax credit calculation methodologies for the different activities undertaken.

You can use any apportionment method that is fair and reasonable in your circumstances to determine the fuel tax credit that is available for the taxable fuel that you acquire.

The Commissioner's view on which methods can be used to calculate the quantity of taxable fuel that you acquire for use in your enterprise is expressed in Practice Statement Law Administration PS LA 2010/3 Apportionment for the purposes of the Fuel Tax Act 2006.

This practice statement provides guidance in determining whether a method of apportionment to calculate an entity's fuel tax credit entitlement is fair and reasonable in the entity's circumstances.

While the following commonly used methods are considered to be a fair and reasonable basis for apportionment, there may be other methods or variations to these methods which could prove to be a fair and reasonable basis for apportionment, depending on the entity's circumstances.

The methods are:

· The constructive methods (actual use or planned use)

· The deductive methods (actual use or planned use)

· The percentage use method, and

· The estimate use method

Fuel Tax Determination FTD 2010/1 Fuel tax: is apportionment used when determining total fuel tax credits in calculating the net fuel amount under section 60-5 of the Fuel Tax Act 2006 provides that you are generally required to perform separate calculations so that you are applying a fair and reasonable basis of apportionment when you acquire:

· one type of taxable fuel for use in multiple activities that either attract no fuel tax credit, a full fuel tax credit, a half fuel tax credit, or the amount of your fuel tax credit entitlement is reduced by the road user charge;

· more than one type of taxable fuel in the same activity; or

· more than one type of taxable fuel is used for multiple activities where different fuel tax credit rates apply.

Based on the activities as you have described and the above notice of private ruling, you are entitled to either a partial or half fuel tax credit for the diesel and petrol acquired for use in your vehicles and equipment. There are also activities for which no fuel tax credit will arise.

As such, you will need to apportion between those activities that are excluded from an entitlement to fuel tax credits (light vehicles travelling on public roads), those activities that incur the partial rate (the backhoe with a GVM greater than 4.5 tonnes travelling on public roads) and the half rate of fuel tax credits (off-road use).

Review of methods used

Note that where your circumstances change, the method of apportionment needs to be reviewed if it is still a fair and reasonable basis on which to calculate your fuel tax credit entitlement.

For example, a method should be reviewed if there has been a significant impact on factors that are important to the conduct of an enterprise, or a change in the assumptions which form the basis for the selection and application of the method. This includes the loss of contracts that affect an entity's business operations or a change in the activities undertaken as part of business operations.

You must review your sample percentage if your business operations change in a way that substantially affects how much eligible fuel you use in a financial year.

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