ATO Interpretative Decision

ATO ID 2007/129 (Withdrawn)

Excise

• This ATO ID is withdrawn from 1 July 2013, the date from which Item 9 of Schedule 3 to the Fuel Tax (Consequential and Transitional Provisions) Act 2006 can no longer be relied on to attribute a decreasing fuel tax adjustment. Despite its withdrawal, this ATO ID continues to be a precedential ATO view in respect of the tax periods commencing 1 July 2006 and ending 30 June 2009.
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Issue

Does the 4-year time limit in section 105-55 of Schedule 1 to the Taxation Administration Act 1953 (TAA) apply to a notification of entitlement to a refund, where the refund is of a net fuel amount for a tax period that arises because of a decreasing fuel tax adjustment under Item 9 of Schedule 3 to the Fuel Tax (Consequential and Transitional Provisions) Act 2006 (Fuel Tax Transitional Act)?

Decision

Yes, the 4-year time limit in section 105-55 of Schedule 1 to the TAA applies to a notification of entitlement to a refund where the refund is of a net fuel amount that arises because of a decreasing fuel tax adjustment under Item 9 of Schedule 3 to the Fuel Tax Transitional Act.

Facts

An entity is registered for goods and services tax (GST) and lodges business activity statements (BAS) on a monthly basis.

The entity purchased a quantity of on-road diesel fuel prior to 1 July 2006 for which it is entitled to an on-road credit under the Energy Grants (Credits) Scheme Act 2003 (Energy Grants Act).

The entity has not claimed an energy grant in relation to this credit under section 15 of the Product Grants and Benefits Administration Act 2000 (PGBAA).

The entity realises after 1 July 2009 that it has not attributed the amount of the credit as a decreasing fuel tax adjustment to a tax period ending before 1 July 2009.

The entity chooses to attribute the decreasing fuel tax adjustment to their tax period ending 30 June 2009.

The entity's net fuel amount for the tax period ended 30 June 2009 (without taking into account the decreasing fuel tax adjustment) is a negative amount, with reference to section 61-5 of the Fuel Tax Act 2006 (FTA).

Paragraph 105-55(1)(c) of Schedule 1 to the TAA, which deals with fraud or evasion, does not apply.

Reasons for Decision

Item 9 of Schedule 3 to the Fuel Tax Transitional Act provides a method for an entity to claim its entitlement to a credit under the Energy Grants Act for an on-road or an off-road credit for diesel fuel purchased or imported between 1 July 2003 and 30 June 2006.

Where an entity has not made a claim for payment of an energy grant in relation to the credit under section 15 of the PGBAA, it is able to claim the amount of the credit as a decreasing fuel tax adjustment under the fuel tax regime pursuant to Item 9 of Schedule 3 to the Fuel Tax Transitional Act.

Subitem 9(3) of Schedule 3 to the Fuel Tax Transitional Act provides that the decreasing fuel tax adjustment must be attributed to a tax period, of the entity's choice, that ends before 1 July 2009.

Section 105-55 of Schedule 1 to the TAA places a time limit on entitlements to refunds and credits to which subsections 105-55(1) and 105-55(3) apply.

Subsection 105-55(1) of Schedule 1 to the TAA applies to entities that are registered for GST. These entities are not entitled to a refund or fuel tax credit in respect of a tax period unless, within four years after the end of the tax period, or importation;

•

the entity notifies the Commissioner of their entitlement to the refund or credit; or

•

the Commissioner notifies the entity that they are entitled to the refund or credit.

Paragraph 105-55(2)(a) of Schedule 1 to the TAA provides that subsection 105-55(1) of Schedule 1 to the TAA applies to a refund under section 61-5 of the FTA in respect of a particular tax period.

Under the heading 'Entitlement to a refund', section 61-5 of the FTA provides that if an entity's net fuel amount for a tax period is less than zero, the Commissioner must pay that amount to the entity.

The phrase 'net fuel amount' in subsection 61-5(1) of the FTA is defined as having the meaning given by section 60-5 of the FTA.

Section 60-5 of the FTA provides that a net fuel amount is worked out using the formula:

In this case, the entity's net fuel amount is already negative prior to taking into account the decreasing fuel tax adjustment pursuant to Item 9 of Schedule 3 to the Fuel Tax Transitional Act. Therefore, the decreasing fuel tax adjustment would serve to increase the entity's refund.

Accordingly, subsection 105-55(1) of Schedule 1 to the TAA is applicable. Therefore, the entity is not entitled to the refund that would result from the decreasing fuel tax adjustment unless the entity notifies the Commissioner that they are entitled to the refund within four years of the end of the tax period they choose that ends before 1 July 2009.

In this case, for the entity to receive a refund they must notify the Commissioner before 1 July 2013 they are attributing their decreasing fuel tax adjustment to the tax period ended 30 June 2009.

Legislative References:
Fuel Tax (Consequential and Transitional Provisions) Act 2006
   Item 9
   Sub-Item 9(3)

Related ATO Interpretative Decisions
ATO ID 2007/79

Keywords
Decreasing fuel tax amount
Excise
Excise offsets
FTC attribution rules for fuel tax credit
FTC fuel tax adjustment
FTC general
FTC indirect tax law
FTC net fuel amount
Fuel tax credits

Business Line:  Indirect Tax

Date of publication:  29 June 2007

ISSN: 1445-2782