Edited version of your private ruling

Authorisation Number: 1012591953187

Ruling

Subject: Fuel Tax Credit

Question 1

Are certain roads (other than 'forestry roads') considered to be 'public roads' for the purposes of section 41-20 of the Fuel Tax Act 2006 (FT Act)?

Answer

No

This ruling applies for the following periods:

1 October 2009 to 30 June 2013

The scheme commences on:

1 October 2009

Relevant facts and circumstances

You query whether certain roads are public roads for the purposes of section 41-20 of the FT Act.

You advise that the roads have not been declared or dedicated as public roads under any Commonwealth or State/Territory statute. Further, there is no intention to dedicate these roads as public roads. No statute or act of parliament has been identified under which the roads have been declared or dedicated as public roads.

You are currently registered for Goods and Services Tax (GST) and Fuel Tax Credits (FTC).

Entitlement to claim FTC

Subject to section 41-20 of the FT Act you are entitled to a fuel tax credit under section 41-5 of the FT Act as:

· the fuel is acquired and used by you for the purpose of carrying on your business operations, which includes a vehicle hire enterprise; and

· you are registered for GST and FTC.

You are entitled to claim FTC for eligible business activities as you do not meet the disentitlement rule in section 41-20 of the FT Act.

Relevant legislative provisions

Fuel Tax Act 2006 section 41-20.

Reasons for decision

Section 41-20 of the Fuel Tax Act 2006 (FT Act) provides that you are not entitled to a fuel tax credit for taxable fuel to the extent that you acquire, manufacture or import the fuel for use in a vehicle with a gross vehicle mass of 4.5 tonnes or less travelling on a public road.

You have sought a ruling on whether certain roads within the Tiwi Islands are public roads for the purposes of section 41-20 of the FT Act.

'Public road' and 'road' are not defined in the Fuel Tax Act 2006 (FT Act).

Fuel Tax Ruling FTR 2012/2 Fuel tax: fuel tax credits for taxable fuel acquired or manufactured in, or imported into, Australia for use in carrying on an enterprise involving 'forestry' as defined in section 43-75 of the Fuel Tax Act 2006 (FTR 2012/2) provides guidance in respect of the meaning of roads and public roads.

As explained in paragraph 179 of FTR 2012/2, the Commissioner considers that the relevant ordinary meanings are:

1. a way, usually open to the public for the passage of vehicles, persons, and animals. 2. any street so called. 3. the track on which vehicles, etc., pass, as opposed to the pavement.

In your case, the various paths, tracks and roads used by vehicles travelling from one place to another fall within this definition and are considered to be 'roads' for the purposes of the FT Act.

Paragraph 50 of FTR 2012/2 provides, for the purposes of the FT Act, that a road is a public road if:

· it is opened, declared or dedicated as a public road under a statute;

· it is vested in a government authority having statutory responsibility for the control and management of public road infrastructure; or

· it is dedicated as a public road at common law.

Consideration will be given to whether any of the criteria in paragraph 50 have been satisfied in respect of the roads that are the subject of this ruling.

Opened, declared or dedicated as a public road under statute

You advised that the roads in question have not been declared or dedicated as public roads under any Commonwealth or State/Territory statute. Further, there has been no intention to dedicate these roads as public roads.

Vested in a government authority having statutory authority for public roads for the control and management of public road infrastructure

'Primary' and 'commonly used' roads

In paragraph 211 of FTR 2012/2, the Commissioner considers that roads and streets which are vested in, constructed or maintained by a local government authority for general public usage are public roads for the purposes of section 43-75 of the FT Act.

Dedicated as a public road at common law

Paragraphs 212 and 213 of FTR 2012/2 state:

212. If a road is not under the control and management of a state or territory authority which is responsible for the provision of road infrastructure to the public, then whether the road is a 'public road' under the common law is a question of fact.

213. For a road to be dedicated as a public road at common law, there must be established an 'unequivocal indication of the intention of the owner of the land to dedicate it to the public as a road'.

Paragraph 214 lists the factors to be considered in determining whether an owner of land has dedicated it as a public road under the common law. These include:

· whether there has been a declaration of an intention to dedicate;

· delineation on maps or plans of roads set apart for public use;

· use by the public (indicating acceptance of the dedication);

· whether vehicles must be registered to use the road and state or territory traffic laws are applicable while the vehicles use the road; and

· the expenditure of money by public bodies in forming or maintaining the land as a road.

All of the information provided indicates that there has not been any declaration or an intention to dedicate these roads as public roads. On the basis of this and our assessment of your scenario against the other criteria in paragraph 50 of FTR 2012/2 and the accompanying guidance in paragraphs 200 to 220 of FTR 2012/2, we consider that the roads on the privately held land and the 'primary' and 'commonly used' roads are not public roads because these roads have not been:

· Opened, declared or dedicated as public roads under a statute;

· Vested in a government authority that has responsibility for the control and management of public road infrastructure

· Dedicated as a public road under common law.

Accordingly, the roads on privately held land and the 'primary' and 'commonly used' roads are not 'public roads' for the purposes of section 41-20 of the FT Act.