Edited version of your private ruling

Authorisation Number: 1012469577939

Ruling

Subject: Fuel tax credits - retrospective entitlements

Question:

Are you entitled to retrospectively claim your fuel tax credit entitlements for the tax periods prior to October 2008?

Answer:

No.

This ruling applies for the following periods:

2005-06 income year

2006-07 income year

2007-08 income year

2008-09 income year

The scheme commences on:

1 January 2006

Relevant facts and circumstances

You are a transport company that is engaged in the transport of refrigerated goods using refrigerated trailers.

You acquire and use diesel fuel in powering your refrigerated trailers.

You are seeking a private ruling to address your ability to retrospectively claim fuel tax credits for periods exceeding the previous four years.

You were registered for goods and services tax (GST) for the relevant tax period on a monthly lodgement cycle.

Relevant legislative provisions

Fuel Tax Act 2006 section 41-5

Fuel Tax Act 2006 section 43-5

Fuel Tax Act 2006 subsection 43-10(3)

Fuel Tax Act 2006 section 47-5

Fuel Tax Act 2006 section 47-10

Taxation Administration Act 1953 section 105-55

Reasons for decision

Section 41-5 of the Fuel Tax Act 2006 (FTA) provides entitlement 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.

Calculating fuel tax credits

In accordance with section 43-5 of the FTA, the amount of the fuel tax credit for taxable fuel is the amount of effective fuel tax that is payable on the fuel. However, your fuel tax credit can be affected by the amount of the road user charge (RUC) in relation to the use of taxable fuel in a vehicle for travelling on public roads (subsection 43-10(3) of the FTA).

Road user charge

Subsection 43-10(3) of the FTA provides that to the extent that you acquire taxable fuel to use, in a vehicle, for travelling on a public road, the amount of your fuel tax credit for the fuel is reduced by the amount of the RUC for the fuel.

In your circumstances, you acquire and use diesel fuel in powering your refrigerated trailers. This means that you acquire a portion of fuel both to use in a vehicle, for travelling on a public road and

for use in powering auxiliary equipment in or on the vehicle (the refrigeration units).

The use of fuel to power this equipment is unrelated to the movement of the vehicle along the road. Therefore, subsection 43-10(3) of the FTA does not apply and the fuel tax credit for this fuel will not be reduced by the RUC.

However, there is a four year time limit on claiming fuel tax credits provided for under section 47-5 of the FTA. It 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).

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

You are not entitled to a refund, other payment or credit to which this subsection applies in respect of a tax period or importation unless:

a) within 4 years after:

i. the end of the tax period; or

ii. the importation;

as the case required, you notify the Commissioner (in a GST return or otherwise) that you are entitled to the refund, other payment or credit;

Furthermore, the Commissioner has made under section 60-10 of the FTA, Fuel Tax Act 2006 - Correcting fuel tax errors Determination (No. 1) 2012 relating to the correction of RUC errors in fuel tax credit entitlements, made in an earlier tax period.

By relying on the Determination you can correct an error made in working out the net fuel amount for an earlier tax period, including periods that ended before 1 July 2012, by taking an amount that relates to the error into account in working out your net fuel amount for a tax period that commenced on or after 1 July 2012.

However, the following circumstances must be met:

1.  you had reduced your fuel tax credit for the earlier tax period by the road user charge for fuel you acquired, imported or manufactured to use in a vehicle travelling on a public road but the fuel was not for travelling on a public road; and

2.  you are registered for goods and services tax; and

3.  your entitlement to the fuel tax credit for the tax period in which the error occurred has not ceased because of section 105-55 in Schedule, 1 of the Taxation Administration Act 1953 .

For the period from 1 July 2006 to 28 October 2008, we needed to have your notification within
4 years from the end of the tax period i.e. by 31 October 2012. As such, for the period 1 July 2006 to 28 October 2008, you are no longer within the prescribed time limits.

Accordingly, you are not entitled to retrospectively claim fuel tax credits for the period 1 July 2006 to 28 October 2008 as your entitlement for this period has ceased.