ATO Interpretative Decision
ATO ID 2008/129 (Withdrawn)
Excise
Excise: Fuel Tax Act and fuel standardsFOI status: may be released
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This ATO ID is withdrawn from the database because it contains a view on the operation of subsection 43-5(4) of the Fuel Tax Act 2006 which was repealed with effect from 1 December 2011. Despite its withdrawal the ATO ID continues to be a precedential view in respect of fuel acquired, manufactured or imported before 1 December 2011.This document has changed over time. View its history.
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Is the effective fuel tax for taxable fuel that is a blend of biodiesel and diesel worked out as if the fuel were diesel in accordance with subsection 43-5(4) of the Fuel Tax Act 2006 (FTA), if an approval that varies the fuel standard for automotive diesel in a specified way in respect of specified supplies of that fuel is granted to a person under the Fuel Quality Standards Act 2000 (FQSA) and the fuel supplied by that person (or another person specified in the approval) complies with the fuel standard as varied?
Decision
Yes. The effective fuel tax for taxable fuel that is a blend of biodiesel and diesel is worked out in accordance with subsection 43-5(4) of the FTA, if an approval that varies the fuel standard for automotive diesel in a specified way in respect of specified supplies of the fuel is granted under section 13 of the FQSA, and:
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- the fuel supplied is subject to the approval;
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- the fuel supplied complies with the fuel standard as varied by the approval; and
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- the conditions specified in the approval are met.
Facts
An entity acquired taxable fuel that was a blend of biodiesel and diesel for use in its enterprise.
The supply of the fuel was the subject of a grant of approval made under section 13 of the FQSA which varied the fuel standard for automotive diesel that is set out in the Fuel Standard (Automotive Diesel) Determination 2001.
The fuel complied with the standard for automotive diesel as varied by the approval.
The approval was subject to the following conditions:
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- the fuel, subject to the approval, was supplied to specified entities; and
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- the approval holder was required to notify the specified entities of how the fuel varied from the fuel standard made under section 21 of the FQSA.
The conditions specified in the approval were met.
The entity is registered for goods and services tax.
Reasons for Decision
Subsection 43-5(4) of the FTA deals with the amount of effective fuel tax for taxable fuel that is a blend of more than one kind of fuel. Paragraph 43-5(4)(b) of the FTA stipulates that the taxable fuel must meet 'a fuel standard, under the FQSA, for petrol or diesel.
The term 'fuel standard' is not defined in the FTA. Subsection 43-5(4) of the FTA refers to a fuel standard 'under the Fuel Quality Standards Act 2000'. This reference creates a nexus with the term 'fuel standard' for the purposes of the FTA and a fuel standard for the purposes of the FQSA. Therefore, the term 'fuel standard' in subsection 43-5(4) is a reference to a fuel standard that is made under the FQSA.
Section 3 of the FQSA states that the objects of the Act are to regulate the quality of fuel supplied in Australia and to ensure that, where appropriate, information about fuel is provided when the fuel is supplied. To this end, the Minister administering the FQSA has made several determinations under section 21 of the FSQA that set out the fuel standards for particular fuels, including the Fuel Standard (Automotive Diesel) Determination 2001 (Determination) that sets out the fuel standard for automotive diesel.
The Minister administering the FQSA may also, under section 13 of the FQSA, grant an approval to a person that varies a fuel standard in a specified way in respect of specified supplies of the fuel by the person or any other person specified in the approval. The Minister has granted a number of such approvals. A Notice of such approval is published in the Commonwealth of Australia Gazette.
The term 'fuel standard' in paragraph 43-5(4)(b) of the FTA is a reference to the fuel standard that is made under the FQSA for petrol or diesel and therefore includes a fuel standard as varied under an approval granted under section 13 of the FQSA in relation to specified supplies of petrol or diesel by the person or persons specified in the approval.
Therefore, paragraph 43-5(4)(b) of the FTA will be met, in relation to specific supplies of a blend of more than one kind of fuel, for example biodiesel and diesel, where the Minister administering the FQSA, grants under section 13 of the FQSA:
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- an approval in writing to a person varying the automotive diesel fuel standard in a specified way in respect of those specified supplies of that fuel; and
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- the fuel supplied, that is subject to the approval, meets the automotive diesel fuel standard as varied by the approval; and
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- the conditions specified in the approval are met.
Legislative References:
Fuel Tax Act 2006
subsection 43-5(4)
paragraph 43-5(4)(b)
section 3
section 13
section 21
Other References:
Fuel Standard (Automotive Diesel) Determination 2001
Keywords
Fuel tax credits
FTC blended fuel
FTC effective fuel tax
ISSN: 1445-2782
| Date: | Version: | |
| 24 September 2008 | Original statement | |
| You are here | 10 February 2012 | Archived |