133Unit shortfall

#### 133 Unit shortfall Scope (1) This section applies if: (a) a person is a liable entity for an eligible financial year (the relevant eligible financial year); and (b) the relevant eligible financial year is a flexible charge year. Unit shortfall (2) If the number worked out using the formula in subsection (5) exceeds zero: (a) the person has a unit shortfall under this section for the relevant eligible financial year; and (b) the number of units in that shortfall is equal to the number worked out using that formula. > Note: Unit shortfall charge is imposed by whichever of the following is applicable: (a) Part 3 of the Clean Energy (Charges—Excise) Act 2011; (b) Part 3 of the Clean Energy (Charges—Customs) Act 2011; (c) the Clean Energy (Unit Shortfall Charge—General) Act 2011. No unit shortfall (3) If the number worked out using the formula in subsection (5) is zero, the person does not have a unit shortfall under this section for the relevant eligible financial year. Surplus surrender number (4) If the number worked out using the formula in subsection (5) is less than zero: (a) the person has a surplus surrender number for the relevant eligible financial year; and (b) the surplus surrender number is equal to the number worked out using that formula (expressed as a positive). Formula (5) The formula is as follows:  where: > emissions number means the person’s emissions number for the relevant eligible financial year. > number of units surrendered before the end of 1 February means the number of eligible emissions units the person surrendered, in relation to the relevant eligible financial year, before the end of 1 February next following the relevant eligible financial year. > surplus surrender number means the surplus surrender number (if any) of the person for the previous eligible financial year, so long as the previous eligible financial year is a flexible charge year. Borrowing limit (6) If: (a) before the end of 1 February next following the relevant eligible financial year, the person surrendered, in relation to the relevant eligible financial year, carbon units (the borrowed units) that have a vintage year that next follows the relevant eligible financial year; and (b) the number of borrowed units exceeds 5% of the person’s emissions number for the relevant eligible financial year; this section has effect as if: (c) the person had not, before the end of that 1 February, surrendered, in relation to the relevant eligible financial year, the number of borrowed units that equals the excess; and (d) the person had, before the end of 1 February next following the next eligible financial year, surrendered, in relation to the next eligible financial year, the number of borrowed units that equals the excess. Eligible international emissions units—surrender limits (7) If: (a) the relevant eligible financial year is: (i) the eligible financial year beginning on 1 July 2015; or (ii) a later eligible financial year; and (b) before the end of 1 February next following the relevant eligible financial year, the person surrendered, in relation to the relevant eligible financial year, eligible international emissions units; and (c) there is an unacceptable designated limit situation of the person for the relevant eligible financial year; this section has effect as if: (d) the person had not, before the end of 1 February next following the relevant eligible financial year, surrendered, in relation to the relevant eligible financial year, the eligible international emissions units covered by the unacceptable designated limit situation; and (e) the person had, before the end of 1 February next following the next eligible financial year, surrendered, in relation to the next eligible financial year, the eligible international emissions units covered by the unacceptable designated limit situation. > Note 1: For unacceptable designated limit situation, see subsection (7F). > Note 2: For a special rule about the order in which units are taken to have been surrendered, see subsection (7G). (7A) If: (a) the relevant eligible financial year is: (i) the eligible financial year beginning on 1 July 2015; or (ii) any of the next 4 eligible financial years; and (b) before the end of 1 February next following the relevant eligible financial year, the person surrendered, in relation to the relevant eligible financial year, eligible international emissions units; and (c) there is an unacceptable general limit situation of the person for the relevant eligible financial year; this section has effect as if: (d) the person had not, before the end of 1 February next following the relevant eligible financial year, surrendered, in relation to the relevant eligible financial year, the eligible international emissions units covered by the unacceptable general limit situation; and (e) the person had, before the end of 1 February next following the next eligible financial year, surrendered, in relation to the next eligible financial year, the eligible international emissions units covered by the unacceptable general limit situation. > Note 1: For unacceptable general limit situation, see subsection (7E). > Note 2: For a special rule about the order in which units are taken to have been surrendered, see subsection (7G). (7B) If there are 2 or more unacceptable designated limit situations of the person for the relevant eligible financial year, subsection (7) is to be applied separately in relation to each of those designated limit situations: (a) in the order ascertained in accordance with a legislative instrument made by the Minister; or (b) if no instrument is in force under paragraph (a)—in the order that corresponds to the lowest‑to‑highest ranking of the respective designated limit percentages applicable to the relevant designated limits (that is, with the lowest designated limit percentage being ranked 1 and the second lowest designated limit percentage being ranked 2 and so on). (7C) For the purposes of paragraph (7B)(b), if the same designated limit percentage is applicable to 2 or more designated limits: (a) those designated limit percentages are to be ranked in the order that corresponds to the alphabetical order of the names of the respective designated limits (for example, with a percentage applicable to a designated limit that has a name beginning with the letter A being ranked 1 and a percentage applicable to a designated limit that has a name beginning with the letter B being ranked 2 and so on); and (b) that ranking is taken to be a lowest‑to‑highest ranking of those designated limit percentages. (7D) Subsection (7A) is to be applied after: (a) if there is only one unacceptable designated limit situation of the person for the relevant eligible financial year—subsection (7) has been applied; or (b) if there are 2 or more unacceptable designated limit situations of the person for the relevant eligible financial year—the last application of subsection (7). (7E) For the purposes of this section, if: (a) the relevant eligible financial year is: (i) the eligible financial year beginning on 1 July 2015; or (ii) any of the next 4 eligible financial years; and (b) before the end of 1 February next following the relevant eligible financial year, the person surrendered, in relation to the relevant eligible financial year, eligible international emissions units; and (c) the number of eligible international emissions units exceeds 50% of the emissions number of the person for the relevant eligible financial year; then: (d) there is an unacceptable general limit situation of the person for the relevant financial year; and (e) the eligible international emissions units covered by the situation are to be ascertained as follows: (i) rank the units covered by paragraph (b) in the reverse consecutive order to the order in which the units were surrendered (that is, with the first most recently surrendered unit being ranked 1 and the second most recently surrendered unit being ranked 2 and so on); (ii) identify the units ranked with a number that is less than, or equal to, the excess mentioned in paragraph (c); (iii) the units identified under subparagraph (ii) of this paragraph are the units covered by the situation. (7F) For the purposes of this section, if: (a) the relevant eligible financial year is: (i) the eligible financial year beginning on 1 July 2015; or (ii) a later eligible financial year; and (b) before the end of 1 February next following the relevant eligible financial year, the person surrendered, in relation to the relevant eligible financial year, eligible international emissions units; and (c) some or all of the eligible international emissions units are subject to a particular designated limit for the relevant eligible financial year; and (d) the number of units covered by paragraph (c) exceeds the applicable designated percentage of the emissions number of the person for the relevant eligible financial year; then: (e) there is an unacceptable designated limit situation of the person for the relevant financial year; and (f) the eligible international emissions units covered by the situation are to be ascertained as follows: (i) rank the units covered by paragraph (c) in the reverse consecutive order to the order in which the units were surrendered (that is, with the first most recently surrendered unit being ranked 1 and the second most recently surrendered unit being ranked 2 and so on); (ii) identify the units ranked with a number that is less than, or equal to, the excess mentioned in paragraph (d); (iii) the units identified under subparagraph (ii) of this paragraph are the units covered by the situation. (7G) For the purposes of this section, if 2 or more eligible international emissions units are surrendered at the same time, the units are taken to have been surrendered: (a) in the order ascertained in accordance with a legislative instrument made by the Minister; or (b) if no instrument is in force under paragraph (a)—in the order that corresponds to the numeric order of the serial numbers of the units. Reduction of surplus surrender number (8) If: (a) apart from this subsection, the person has a surplus surrender number for the previous eligible financial year; and (b) the previous eligible financial year is a flexible charge year; and the following conditions are satisfied in relation to one or more eligible international emissions units: (c) before the end of 1 February next following the previous eligible financial year, the person surrendered, in relation to the previous eligible financial year, those units; (d) assuming that: (i) those units had not been surrendered in relation to the previous eligible financial year; and (ii) the person had, on 1 February next following the relevant eligible financial year, purported to surrender, in relation to the relevant eligible financial year, those units; the purported surrender of those units would have breached regulations made for the purposes of subsection 123(1); then: (e) if the person would not have had a surplus surrender number for the previous eligible financial year if those units had not been surrendered in relation to the previous eligible financial year—subsection (5) has effect as if the person did not have a surplus surrender number for the previous eligible financial year; or (f) if the person’s surplus surrender number for the previous eligible financial year would have been reduced if those units had not been surrendered in relation to the previous eligible financial year—subsection (5) has effect as if the person’s surplus surrender number for the previous eligible financial year were reduced accordingly.