Edited version of your private ruling

Authorisation Number: 1012450976124

Ruling

Subject: Fuel tax credits - Four year rule

Question 1

Can you claim an energy grant for on-road diesel fuel you purchased during the period 1 July 2002 to 30 June 2003 under the Energy Grants (Credits) Scheme Act 2003 (EGCSA)?

Answer

No

Question 2

Are you entitled to a decreasing fuel tax adjustment under item 9 of Schedule 3 to the Fuel Tax (Consequential and Transitional Provisions) Act 2006 (FTCTPA) for diesel fuel purchased between 1 July 2003 and 30 June 2006 for which you had an entitlement under the EGCSA?

Answer

Yes

Question 3

Can you claim fuel tax credits for diesel fuel you acquired for use in your heavy vehicles travelling on public roads for the period 1 July 2006 to 28 February 2009 under the Fuel Tax Act 2006 (FTA)?

Answer

No

This ruling applies for the following periods:

1 July 2002 to 28 February 2009

Relevant facts and circumstances

You have enquired about the time limits on entitlements to fuel tax credits.

You use diesel fuel in trucks over 4.5 tonnes gross vehicle mass (GVM) in road transport operations and have documentation, including the litres of diesel fuel necessary to claim for fuel tax credits dating back to June 2002.

You claim that due to a lack of awareness, claims for fuel tax credits have not been made in the past and you are seeking clarification on claiming fuel tax credits for the period June 200X to February 200Y.

You are registered for goods and services tax.

You are registered for fuel tax credits.

You have already backdated fuel tax credit claims going back a number of years of your fuel tax credit registration.

Relevant legislative provisions

Fuel Tax (Consequential and Transitional Provisions) Act 2006 Division 2 of Part 2 of Schedule, item 9

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

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

Fuel Tax Act section 41-5

Fuel Tax Act Division 47-1

Fuel Tax Act section 47-5

Fuel Tax Act section 47-10

Taxation Administration Act 1953 Schedule 1, section 105-55

Taxation Administration Act 1953 Schedule 1, paragraph 105-55(1)

Taxation Administration Act 1953 Schedule 1, subparagraph 105-55(1)(a)

Reasons for decision

Tax period 1 July 2002 to 30 June 2003

You refer to diesel fuel purchased for use in your heavy vehicles on road for a period prior to 30 June 2003.

On-road grants were administered at this time under a scheme titled the Diesel and Alternative Fuels Grants Scheme Act 1999 (DAFGSA) (now repealed)

This scheme was replaced by the energy grants credits scheme administered under the Energy Grants (Credits) Scheme Act 2003 (EGCSA) on 1 July 2003 and applied to fuel purchased from that date for use in defined activities, including certain road transport activities and replicated many of the provisions of the DAFGSA.

Schedule 7 of the Energy Grants (Credits) Scheme (Consequential Amendments) Act 2003 extended the EGCSA so that, in certain circumstances, an entity could claim an energy grant for on-road diesel fuel purchased or imported into Australia before 1 July 2003.

Sub-item 7(2) provided that the EGCSA and regulations under that Act applied to fuel applied in the same way as they applied to on-road diesel fuel purchased or imported into Australia on 1 July 2003.

The effect of this sub-item created an entitlement to energy grants that could be claimed under section 15 of the Product Grants and Benefits Administration Act 2000 (PGBAA), subject to certain conditions.

Section 15 of the PGBAA provided that, a claim will not be able to be made more than 3 years after the actual time of purchase or importation of the fuel concerned.

Accordingly, you cannot claim an energy grant for on-road diesel fuel you purchased during the period 1 June 2002 to 30 June 2003 under the EGCSA as more than 3 years after the actual time of purchase of the fuel has passed.

Energy Grants Credits - 1 July 2003 to 30 June 2006 and decreasing fuel tax adjustment

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 in Australia to the extent that you do so for use in carrying on your enterprise if you are registered for GST.

Entitlement to fuel tax credits 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 operates to restrict entitlement to specific activities for fuel purchased between 1 July 2006 and 30 June 2012.

The FTCTPA also acts to provide for entitlements that may have arisen under the EGCSA. The energy grants credits scheme was the scheme that provided for fuel tax concessions prior to the introduction of fuel tax credits on 1 July 2006. This scheme provided a grant for the use of diesel fuel in specified activities eligible for an on or off-credit.

You have advised that you have been using diesel fuel in your trucks with a gross vehicle mass of more than 4.5 tonnes as part of your business.

You have already backdated fuel tax credit claims going back a number of years of your fuel tax credit registration and have enquired as to whether there are any exceptions to the four year rule in your circumstances.

There is generally a four year time limit on claiming credits or refunds on fuel tax credits, however item 9 of the FTCTPA provides that you have a decreasing fuel tax adjustment (i.e. an increased entitlement) if you purchased on-road diesel fuel between 1 July 2003 and 30 June 2006, and you were entitled to an on-road or an off-road credit in respect of the fuel, and you have not made a claim for payment of an energy grant in respect of the credit.

You state you have all the supporting documentation (confirming the amounts) necessary to claim for fuel tax credits for the tax periods spanning 1 July 2003 to 30 June 2006, which are relevant for the purposes of item 9 of the FTCTPA.

Therefore, provided you:

· purchased on or off-road diesel fuel between 1 July 2003 and 30 June 2006,

· have an entitlement, and

· have not already made a claim for payment of an energy grant in respect of the credit,

you can choose to attribute the amount of the fuel tax credit for these tax periods as a decreasing fuel tax adjustment to the tax period ending 30 June 200Y.

To ensure you meet the requirements of the four year time limit for claiming fuel tax credits, you must make the adjustment before 1 July 2013.

Fuel Tax Credits - 1 July 2006 to 28 February 2009

As stated above, section 41-5 of the FTA provides that you are entitled to a fuel tax credit for taxable fuel that you acquire in Australia to the extent that you do so for use in carrying on your enterprise if you are registered for GST.

Division 47-1 of the FTA provides that your entitlements to fuel tax credits will cease unless you include them in your net fuel amounts within four years.

More specifically, section 47-5 of the FTA imposes a time limit on entitlement to fuel tax credits and provides that:

You cease to be entitled to a fuel tax credit to the extent that you have not taken it into account in working out your *net fuel amount for:

(a) the *tax period or *fuel tax return period to which the fuel tax credit would be attributable under subsection 65-5(1), (2) or (3); or

(b) any other tax period, or fuel tax return period, for which you give to the Commissioner a return under section 61-15 during the period of 4 years after the day on which you were required to give to the Commissioner such a return for the tax period or fuel tax return period referred to in paragraph (a).

Furthermore, section 47-10 of the FTA provides for exceptions to the time limit on entitlements to fuel tax credits and states that you do not cease to be entitled under section 47-5 of the FTA where paragraph 105-55(1) in Schedule 1 to the Taxation Administration Act 1953 (TAA) applies.

Subparagraph 105-55(1)(a) of the TAA provides that you are not entitled to a refund or credit in respect of tax period unless within four years after the end of the tax period you notify the Commissioner that you are entitled to the refund or credit.

Miscellaneous Taxation Ruling MT 2009/1 -Miscellaneous taxes: notification requirements for an entity under section 105-55 of Schedule 1 to the Taxation Administration Act 1953 (TAA) provides that while there is no specific form that is required for a notification for the purposes of section 105-55 of the TAA, the notification should be in writing and received on or before the fourth anniversary of the end of the relevant tax period.

Valid notifications for the purposes of section 105-55 include:

· an activity statement or revised activity statement which includes the relevant entitlement in the relevant tax period

· an application for a private indirect tax ruling, an objection or some other correspondence from an entity that asserts the entity has an entitlement, and

° provides a description of the nature of the entitlement to a refund, other payment or credit, which is sufficient to bring to the Commissioner's attention the basic factual and legal basis for the entitlement, and

° specifies the tax period(s) to which the entitlement relates.

As your private ruling submitted in the tax period ending 31 March 20ZZ asserts your entitlement to a fuel tax credit, the earliest tax period for which we could treat this as being a valid notification for the purposes of section 105-55 of the TAA would be the tax period commencing 1 March 200Y.

To be valid for earlier tax periods, we would have required receipt of you notification within 4 years of the end of the relevant tax period i.e.:for the tax period ending 28 February 2009, we would have required your notification by 28 February 2013.

Accordingly, you are not entitled to a fuel tax credit for taxable fuel acquired between 1 July 200X and 28 February 200Y for diesel fuel you acquired for use in your heavy vehicles as part of your road transport business.