ATO Interpretative Decision

ATO ID 2007/120

Excise

Excise: meaning of 'motor vehicle' for the purposes of subsection 41-25(1) of the FTA to determine the application of the environmental criteria requirement
FOI status: may be released
  • With effect from 1 July 2015, the term 'Australia' is replaced in nearly all instances within the Fuel Tax legislation with the term 'indirect tax zone' by the Tax and Superannuation Laws Amendment (2015 Measures No. 1) Act 2015. The scope of the new term, however, remains the same as the repealed definition of 'Australia' used in those Acts.

    This ATO ID has been amended by the addition of related reference Revised Explanatory Memorandum to the Fuel Tax Bill 2006 and the Fuel Tax (Consequential and Transitional Provisions) Bill 2006.


CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 a grader a 'motor vehicle' for the purposes of subsection 41-25(1) of the Fuel Tax Act 2006 (FTA)?

Decision

No. A grader is not a 'motor vehicle' for the purposes of subsection 41-25(1) of the FTA.

Facts

An entity operates a grader with a gross vehicle mass (GMV) of greater than 4.5 tonnes.

The grader is designed to cut, move and spread material.

The entity uses the grader to undertake road construction and maintenance work.

The grader has design features that enable it to travel on public roads.

The entity acquires fuel for use in the grader.

The entity uses some of this fuel in the grader for travelling on public roads to and from the work site.

The entity is entitled to a fuel tax credit in respect of the fuel used in the grader whilst travelling on public roads to and from the worksite under section 41-5 of the FTA.

Reasons for Decision

Under section 41-5 of the FTA an entity is entitled to a fuel tax credit for taxable fuel that they acquire or manufacture in, or import into, Australia to the extent that they do so for use in carrying on their enterprise.

However, Subdivision 41-B of the FTA sets out a number of disentitlement rules for fuel tax credits.

Relevantly, subsection 41-25(1) of the FTA provides that an entity is not entitled to a fuel tax credit for fuel used in a motor vehicle unless the vehicle satisfies one of a number of specified environmental criteria.

The issue to be determined is whether a grader falls within the definition of 'motor vehicle' for the purposes of subsection 41-25(1) of the FTA, and as such must satisfy the environmental criteria requirement.

Section 110-5 of the FTA provides that the term 'motor vehicle' has the same meaning as in section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997).

Section 995-1 of the ITAA 1997 defines 'motor vehicle' as 'any motor-powered road vehicle (including a 4 wheel drive vehicle)'.

The Revised Explanatory Memorandum to the Fuel Tax Bill 2006 and the Fuel Tax (Consequential and Transitional Provisions) Bill 2006, in discussing the environmental criteria in section 41-25 of the FTA explains, at paragraph 2.55, that:    


The criteria are only intended to apply to motor powered road vehicles. They are not intended to apply to vehicles that are not road vehicles.

The Commissioner considered the nature of 'road vehicles' in the Fact Sheet GST and motor vehicles (NAT 4629). The fact sheet examined the meaning of the term 'road vehicle' because the A New Tax System (Goods and Services Tax Transition) Act 1999, like the FTA, defines the term 'motor vehicle' as having the meaning given by section 995-1 of the ITAA 1997.

We consider the approach taken for GST purposes is relevant in establishing the meaning of 'road vehicle' for the purposes of determining whether a vehicle falls within the ambit of subsection 41-25(1) of the FTA.

The view expressed in the GST fact sheet is that the following factors are relevant in determining that a vehicle is not a 'road vehicle':

·
the main function of the vehicle is not related to public road use, and
·
the vehicle's ability to travel on a public road is secondary to its main function.

A grader is designed to cut, move and spread material. Its design enables it to undertake work on a public road. The main function of a grader that is used for road maintenance and construction is to work on a road, rather than to use a public road. Whilst a grader has design features that enable its use on a public road, the ability to travel on public roads is secondary to its main function.

Accordingly, we do not consider that a grader is a 'road vehicle'. Consequently, a grader is not a 'motor vehicle' for the purposes of subsection 41-25(1) of the FTA, and will therefore not be required to meet the environmental criteria listed in that subsection.

Date of decision:  5 June 2007

Legislative References:
Fuel Tax Act 2006
   section 41-5
   section 41-25
   subsection 41-25(1)
   section 110-5

Income Tax Assessment Act 1997
   section 995-1

Other References:
Fact Sheet GST and motor vehicles (NAT 4629)
Revised Explanatory Memorandum to the Fuel Tax Bill 2006
Fuel Tax (Consequential and Transitional Provisions) Bill 2006

Keywords
FTC diesel
FTC environmental measures
FTC public road
FTC vehicle emissions
Fuel tax credits
Motor vehicles

Siebel/TDMS Reference Number:  5654240

Business Line:  Indirect Tax

Date of publication:  15 June 2007

ISSN: 1445-2782