Guide to Division 41Guide to Division 41

Start here

Get a plain-English read of Guide to Division 41

Turn the raw legal text into a practical explanation grounded in Fuel Tax Act 2006.

An Act about fuel tax and fuel tax credits, and for related purposes Chapter 1—Introduction ## Part 1‑1—Preliminary ### Division 1—Preliminary Table of Subdivisions 1‑A Preliminary #### Subdivision 1‑A—Preliminary Table of Sections 1‑5 Short title 1‑10 Commencement 1‑15 States and Territories are bound by the fuel tax law #### 1‑5 Short title This Act may be cited as the Fuel Tax Act 2006. #### 1‑10 Commencement This Act commences on 1 July 2006. #### 1‑15 States and Territories are bound by the fuel tax law The \*fuel tax law binds the Crown in right of each of the States, of the Australian Capital Territory and of the Northern Territory. However, it does not make the Crown liable to be prosecuted for an offence. > Note: For the application of this Act to the Commonwealth, see section 95‑10. ## Part 1‑2—Using this Act ### Division 2—Overview and purpose of the fuel tax law Table of Subdivisions 2‑A Overview and purpose of the fuel tax law #### Subdivision 2‑A—Overview and purpose of the fuel tax law Table of Sections 2‑1 Overview and purpose of the fuel tax law #### 2‑1 Overview and purpose of the fuel tax law This Act provides a single system of fuel tax credits. Fuel tax credits are paid to reduce or remove the incidence of fuel tax levied on taxable fuels, ensuring that, generally, fuel tax is effectively only applied to: (a) fuel used in private vehicles and for certain other private purposes; and (b) fuel used on‑road in light vehicles for business purposes. Liability for fuel tax currently arises under the Excise Act 1901, the Excise Tariff Act 1921, the Customs Act 1901 and the Customs Tariff Act 1995. The administrative aspects of this Act (such as your rights, obligations and payment arrangements) are aligned as closely as possible to the administrative aspects of other indirect taxes (primarily, the GST), and other taxes administered by the Commissioner, to reduce your compliance costs. ### Division 3—Explanation of the use of defined terms Table of Subdivisions 3‑A Explanation of the use of defined terms #### Subdivision 3‑A—Explanation of the use of defined terms Table of Sections 3‑1 When defined terms are identified 3‑5 When terms are not identified 3‑10 Identifying the defined term in a definition #### 3‑1 When defined terms are identified (1) Many of the terms used in the \*fuel tax law are defined. (2) Most defined terms in this Act are identified by an asterisk appearing at the start of the term: as in “\*enterprise”. The footnote that goes with the asterisk contains a signpost to the Dictionary definitions at section 110‑5. #### 3‑5 When terms are not identified (1) Once a defined term has been identified by an asterisk, later occurrences of the term in the same subsection are not usually asterisked. (2) Terms are not asterisked in the non‑operative material contained in this Act. > Note: The non‑operative material is described in Division 4. (3) The following basic terms used throughout the Act are not identified with an asterisk. ```html <table cellspacing="0" cellpadding="0" style="margin-left:56.7pt; border-collapse:collapse"><thead><tr><td colspan="2" style="width:194.75pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Common definitions that are not asterisked</td></tr><tr><td style="width:24.65pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Item</td><td style="width:159.3pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">This term:</td></tr></thead><tbody><tr><td style="width:24.65pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">1</td><td style="width:159.3pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Commissioner</td></tr><tr><td style="width:24.65pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">2</td><td style="width:159.3pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">entity</td></tr><tr><td style="width:24.65pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">3</td><td style="width:159.3pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">fuel tax</td></tr><tr><td style="width:24.65pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">4</td><td style="width:159.3pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">fuel tax credit</td></tr><tr><td style="width:24.65pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">5</td><td style="width:159.3pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">indirect tax zone</td></tr><tr><td style="width:24.65pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">6</td><td style="width:159.3pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">taxable fuel</td></tr><tr><td style="width:24.65pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">7</td><td style="width:159.3pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">you</td></tr></tbody></table> ``` #### 3‑10 Identifying the defined term in a definition Within a definition, the defined term is identified by bold italics. ### Division 4—Status of Guides and other non‑operative material Table of Subdivisions 4‑A Status of Guides and other non‑operative material #### Subdivision 4‑A—Status of Guides and other non‑operative material Table of Sections 4‑1 Non‑operative material 4‑5 Guides 4‑10 Other material #### 4‑1 Non‑operative material In addition to the operative provisions themselves, this Act contains other material to help you identify accurately and quickly the provisions that are relevant to you and to help you understand them. This other material falls into 2 main categories. #### 4‑5 Guides The first is the “Guides”. A \*Guide consists of sections under a heading indicating that what follows is a Guide to a particular Subdivision, Division etc. \*Guides form part of this Act but are kept separate from the operative provisions. In interpreting an operative provision, a Guide may only be considered for limited purposes. These are set out in section 105‑10. #### 4‑10 Other material The other category consists of material such as notes and examples. These also form part of the Act. Generally, they are distinguished by type size from the operative provisions, but are not kept separate from them. Chapter 3—Fuel tax credits ## Part 3‑1—Basic rules ### Division 40—Object of this Chapter Table of Subdivisions 40‑A Object of this Chapter #### Subdivision 40‑A—Object of this Chapter Table of Sections 40‑5 Object of this Chapter #### 40‑5 Object of this Chapter (1) The object of this Chapter is to provide a single system of fuel tax credits to ensure that, generally, fuel tax is effectively only applied to: (a) fuel used in private vehicles and for certain other private purposes; and (b) fuel used on‑road in light vehicles for business purposes. (2) To do this, a fuel tax credit is provided to reduce or remove the incidence of fuel tax applied to: (a) fuel used in \*carrying on your \*enterprise (other than fuel used on‑road in light vehicles); and (b) fuel used for domestic heating and domestic electricity generation; and (c) fuel packaged for use other than in an internal combustion engine; and (d) fuel supplied into certain kinds of tanks. > Note: However, other provisions of this Act might affect your entitlement to a fuel tax credit. ### Division 41—Fuel tax credits for business taxpayers and non‑profit bodies Table of Subdivisions Guide to Division 41 41‑A Entitlement rules for fuel tax credits 41‑B Disentitlement rules for fuel tax credits #### Guide to Division 41 #### 41‑1 What this Division is about Fuel tax credits are provided under Subdivision 41‑A to business taxpayers who are registered, or required to be registered, for GST (and to some non‑profit bodies) in 2 situations. The first situation is where you acquire, manufacture or import fuel to use in carrying on your enterprise (whether the fuel is used as fuel or otherwise). The second situation is where you acquire, manufacture or import fuel to: (a) make a taxable supply to a private user for domestic heating; or (b) package the fuel for the purpose of making a taxable supply of it for use other than in an internal combustion engine; or (c) make a taxable supply of LPG into certain kinds of tanks. However, fuel tax credits are denied under Subdivision 41‑B if: (a) another person is already entitled to a fuel tax credit in respect of the fuel; or (b) the fuel is for use on‑road in light vehicles; or (c) the fuel is for use in vehicles that do not meet certain environmental criteria; or (d) the fuel is for use in aircraft. #### Subdivision 41‑A—Entitlement rules for fuel tax credits Table of Sections 41‑5 Fuel tax credit for fuel to be used in carrying on your enterprise 41‑10 Fuel tax credit for fuel supplied for domestic heating, packaged for supply or transferred into tanks #### 41‑5 Fuel tax credit for fuel to be used in carrying on your enterprise (1) You are entitled to a fuel tax credit for taxable fuel that you acquire or manufacture in, or import into, the indirect tax zone to the extent that you do so for use in \*carrying on your \*enterprise. > Note 1: Other provisions can affect your entitlement to the credit. (For example, see Subdivision 41‑B.) > Note 2: Fuel is taken to have been used if it is blended as specified in a determination made under section 95‑5. Registration for GST (2) However, you are only entitled to the fuel tax credit if, at the time you acquire, manufacture or import the fuel, you are \*registered for GST, or \*required to be registered for GST. (3) Subsection (2) does not apply if, at the time you acquire, manufacture or import the fuel: (a) you are a non‑profit body; and (b) you acquire, manufacture or import the fuel for use in a vehicle (or vessel) that: (i) provides emergency services; and (ii) is clearly identifiable as such. #### 41‑10 Fuel tax credit for fuel supplied for domestic heating, packaged for supply or transferred into tanks Certain fuels supplied for domestic heating (1) You are entitled to a fuel tax credit for taxable fuel that you acquire or manufacture in, or import into, the indirect tax zone to the extent that: (a) you do so to make a \*taxable supply of the fuel to an entity; and (b) the fuel is kerosene, heating oil or any other fuel prescribed by the regulations; and (c) you have a reasonable belief that the entity: (i) will not use the fuel in \*carrying on an \*enterprise; but (ii) will use the fuel for domestic heating. Certain fuels packaged for supply (2) You are entitled to a fuel tax credit for taxable fuel that you acquire or manufacture in, or import into, the indirect tax zone to the extent that: (a) you do so to package the fuel, in accordance with the regulations, for the purpose of making a \*taxable supply of the fuel for use other than in an internal combustion engine; and (b) the fuel is kerosene, mineral turpentine, white spirit or any other fuel prescribed by the regulations. LPG supplied into certain kinds of tanks (3) You are entitled to a fuel tax credit for taxable fuel that is \*LPG that you acquire or manufacture in, or import into, the indirect tax zone to the extent that: (a) you do so for making a \*taxable supply of the LPG; and (b) the supply involves transferring the LPG to a tank; and (c) the tank is not for use in a system for supplying fuel to an internal combustion engine of either a \*motor vehicle or a vessel, either directly or by filling another tank connected to such an engine; and (d) any of the following apply to the tank: (i) the tank has a capacity of not more than 210 kilograms of LPG; (ii) the tank is at \*residential premises and is not for use in \*carrying on an \*enterprise; (iii) the tank is for use in a system for supplying fuel to at least 2 residential premises (whether or not the system also supplies fuel to premises other than residential premises). (4) Paragraph (3)(c) does not apply to a \*motor vehicle that: (a) is designed merely to move goods with a forklift and is for use primarily off public roads; or (b) is of a kind prescribed by the regulations for the purposes of this paragraph. #### Subdivision 41‑B—Disentitlement rules for fuel tax credits Table of Sections 41‑15 No fuel tax credit if another entity was previously entitled to a credit 41‑20 No fuel tax credit for fuel to be used in light vehicles on a public road 41‑25 No fuel tax credit for fuel to be used in motor vehicles that do not meet environmental criteria 41‑30 No fuel tax credit for fuel to be used in an aircraft #### 41‑15 No fuel tax credit if another entity was previously entitled to a credit (1) You are not entitled to a fuel tax credit (under this Division or Division 42) for taxable fuel if it is reasonable to conclude that another entity has previously been entitled to a fuel tax credit (under this Division or Division 42), or a \*decreasing fuel tax adjustment, for the fuel. (2) However, subsection (1) does not apply if it is also reasonable to conclude that another entity had, in respect of the credit, an \*increasing fuel tax adjustment of the \*amount of the credit. #### 41‑20 No fuel tax credit for fuel to be used in light vehicles on a public road 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. #### 41‑25 No fuel tax credit for fuel to be used in motor vehicles that do not meet environmental criteria (1) 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 \*motor vehicle, unless the vehicle meets one of the following criteria: (a) it is manufactured on or after 1 January 1996; (b) it is registered in an audited maintenance program that is accredited by the \*Transport Secretary; (c) it meets Rule 147A of the Australian Vehicle Standards Rules 1999; (d) it complies with a maintenance schedule that is endorsed by the Transport Secretary. (2) Subsection (1) does not apply to a \*motor vehicle: (a) that is used: (i) in carrying on a \*primary production business; and (ii) primarily on an agricultural property; or (b) that is not powered by a diesel engine; or (c) that is not used on a public road. #### 41‑30 No fuel tax credit for fuel to be used in an aircraft You are not entitled to a fuel tax credit for taxable fuel that you acquire, manufacture or import for use as fuel in aircraft if the fuel was entered for home consumption for that use (within the meaning of the Excise Act 1901 or the Customs Act 1901, as the case requires). ### Division 42—Fuel tax credit for non‑business taxpayers Table of Subdivisions Guide to Division 42 42‑A Fuel tax credit for non‑business taxpayers #### Guide to Division 42 #### 42‑1 What this Division is about Fuel tax credits are provided under this Division to non‑business taxpayers. Currently, a credit is only provided for fuel to be used by you for generating electricity for domestic use. #### Subdivision 42‑A—Fuel tax credit for non‑business taxpayers Table of Sections 42‑5 Fuel tax credit for fuel to be used in generating electricity for domestic use #### 42‑5 Fuel tax credit for fuel to be used in generating electricity for domestic use You are entitled to a fuel tax credit for taxable fuel that you acquire or manufacture in, or import into, the indirect tax zone to the extent that you do so for use by you in generating electricity for domestic use. > Note: If you are carrying on an enterprise, you might be entitled to a credit under section 41‑5. ### Division 43—Working out your fuel tax credit Table of Subdivisions Guide to Division 43 43‑A Working out your fuel tax credit #### Guide to Division 43 #### 43‑1 What this Division is about The amount of your credit for taxable fuel is the amount of fuel tax that was payable on the fuel, reduced to take account of certain grants and subsidies that were payable in respect of the fuel (as the grants or subsidies reduced the amount of fuel tax that effectively applied to the fuel). For taxable fuel that is a blend of fuels, there are additional rules for working out the amount of your credit. In some cases, the credit is reduced so that some of the fuel tax can be retained as a road user charge. #### Subdivision 43‑A—Working out your fuel tax credit Table of Sections 43‑5 Working out your fuel tax credit 43‑6 Meaning of fuel tax 43‑7 Working out the effective fuel tax for fuel blends 43‑10 Reducing the amount of your fuel tax credit #### 43‑5 Working out your fuel tax credit (1) The \*amount of your fuel tax credit for taxable fuel is the amount of \*effective fuel tax that is payable on the fuel. > Note: The amount of the credit may be reduced under section 43‑10. Amount of effective fuel tax (2) The \*amount of effective fuel tax that is payable on the fuel is the amount (but not less than nil) worked out using the formula: ![Start formula Fuel tax amount minus Grant or subsidy amount end formula](image.002.png) where: > fuel tax amount means the \*amount of fuel tax that was or would be payable on the fuel at the rate in force on the day worked out using the table in subsection (2A). > grant or subsidy amount means the \*amount of any grant or subsidy, except a grant specified in subsection (3), that was or would be payable in respect of the fuel by the Commonwealth at the rate in force on the day worked out using the table in subsection (2A). > Note: Section 43‑7 affects how this subsection applies to blends. Day for rate of fuel tax, grant or subsidy (2A) Work out the day using the table: ```html <table cellspacing="0" cellpadding="0" style="margin-left:56.7pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:287.05pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Day for rate of fuel tax, grant or subsidy</td></tr><tr><td style="width:3.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top"></td><td style="width:159.3pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">If:</td><td style="width:102.75pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">The day is:</td></tr></thead><tbody><tr><td style="width:3.4pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">1</td><td style="width:159.3pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">You acquired or imported the fuel</td><td style="width:102.75pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">The day you acquired or imported the fuel</td></tr><tr><td style="width:3.4pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">2</td><td style="width:159.3pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">You:(a) manufactured the fuel; and(b) entered the fuel for home consumption (within the meaning of the Excise Act 1901)</td><td style="width:102.75pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">The day you entered the fuel for home consumption (within the meaning of the Excise Act 1901)</td></tr></tbody></table> ``` > Note: Division 65 sets out which tax period a credit is attributable to. (3) In applying subsection (2), disregard a benefit under the Product Stewardship (Oil) Act 2000. #### 43‑6 Meaning of fuel tax (1) Fuel tax is duty that is payable on fuel under: (a) the Excise Act 1901 and the Excise Tariff Act 1921; or (b) the Customs Act 1901 and the Customs Tariff Act 1995; other than any duty that is expressed as a percentage of the value of fuel for the purposes of section 9 of the Customs Tariff Act 1995. (2) For the purposes of subsection (1), if: (a) an Excise Tariff alteration, proposed by a motion moved in the House of Representatives, relates to duty payable on fuel; or (b) a Customs Tariff alteration, proposed by a motion moved in the House of Representatives, relates to duty payable on fuel; the alteration is taken to have effect as if it is an amendment of the Act it proposes to alter, and as if that amendment is in force. (3) However, the alteration ceases to be taken to have that effect unless, before whichever of the following first happens: (a) the close of the session in which the Excise Tariff alteration or Customs Tariff alteration, is proposed; (b) the expiration of 12 months after the Excise Tariff alteration or Customs Tariff alteration, is proposed; one or more amendments of an Act come into force that have the effect proposed by the alteration. (4) For the purposes of subsection (3), the Excise Tariff alteration, or the Customs Tariff alteration, is taken to have been proposed at the time the motion referred to in subsection (2) was moved. #### 43‑7 Working out the effective fuel tax for fuel blends Certain blends containing ethanol (1) The effective fuel tax for taxable fuel that: (a) is a blend of ethanol and one or more other kinds of fuel; and (b) meets the requirements prescribed by the regulations; is worked out under subsection 43‑5(2) as if the fuel were entirely petrol. Certain blends containing biodiesel (2) The effective fuel tax for taxable fuel that: (a) is a blend of \*biodiesel and one or more other kinds of fuel; and (b) meets the requirements prescribed by the regulations; is worked out under subsection 43‑5(2) as if the fuel were entirely diesel. Other blends for which there is evidence of fuel proportions (3) The effective fuel tax for taxable fuel: (a) that is a blend of more than one kind of fuel; and (b) to which neither subsection (1) nor (2) applies; and (c) for which you have documentary evidence that satisfies the Commissioner of the actual proportions of the kinds of fuel in the blend; is worked out under subsection 43‑5(2) in accordance with those proportions. (4) The Commissioner may determine, by legislative instrument, the kinds of documentary evidence that are able to satisfy the Commissioner for the purposes of paragraph (3)(c). (5) If: (a) you acquire or manufacture in, or import into, the indirect tax zone a taxable fuel that is a blend of either of the following (whether or not the blend includes other substances other than fuel): (i) petrol and one other kind of fuel; (ii) diesel and one other kind of fuel; and (b) none of subsections (1), (2) or (3) apply to the fuel; and (c) you acquire, manufacture or import the fuel on terms and conditions that specify or require that the blend contains a minimum percentage by volume of petrol or diesel (as the case requires); then the effective fuel tax for the fuel is worked out under subsection 43‑5(2) as if: (d) the fuel contains that minimum percentage of petrol or diesel (as the case requires); and (e) the remaining percentage by volume of the fuel consists of the other kind of fuel contained in the blend. Rules for working out fuel tax in other cases of blends (6) For the purposes of working out under subsection 43‑5(2) the \*effective fuel tax payable on taxable fuels that are blends other than blends to which any of subsections (1), (2), (3) or (5) of this section apply, the Commissioner may determine, by legislative instrument, rules for working out the proportions of one or more of the constituents of the blends. > Note: The rules may make different provision for different blends or different classes of blends (see subsection 33(3A) of the Acts Interpretation Act 1901). Working out the fuel tax for certain fuels containing ethanol or biodiesel (7) Work out the \*effective fuel tax under subsection 43‑5(2) for taxable fuel: (a) that you acquired, manufactured or imported; and (b) that is, or is a blend containing, ethanol or \*biodiesel; and (c) to which neither subsection (1) nor (2) of this section applies; as if all the ethanol or biodiesel were manufactured or produced in Australia. > Note: As you may not know whether the ethanol or biodiesel is imported or manufactured domestically, this subsection requires you to work out the effective fuel tax assuming that they were manufactured domestically. #### 43‑10 Reducing the amount of your fuel tax credit Road user charge (3) To the extent that you acquire, manufacture or import taxable fuel to use, in a vehicle, for travelling on a public road, the \*amount of your fuel tax credit for the fuel is reduced by the amount of the road user charge for the fuel. > Note: Only certain motor vehicles whose gross vehicle mass is more than 4.5 tonnes are entitled to any credit (see sections 41‑20 and 41‑25). (4) However, the \*amount is not reduced under subsection (3) if the vehicle’s travel on a public road is incidental to the vehicle’s main use. Working out the amount of the reduction (6) The \*amount by which a fuel tax credit for taxable fuel is reduced under subsection (3) is worked out by reference to the rate of fuel tax or road user charge in force on the day worked out using the table in subsection 43‑5(2A). Determining the rate of road user charge (7) The \*amount of road user charge for a taxable fuel is worked out using the rate determined under subsection (8) that applies to the taxable fuel. (8) The \*Transport Minister may, by legislative instrument, determine a rate of road user charge for the following classes of taxable fuels: (a) taxable fuels for which duty is payable at a rate per litre of fuel; (b) taxable fuels for which duty is payable at a rate per kilogram of fuel; (c) taxable fuels for which duty is payable at a rate expressed in a unit of measurement that is not mentioned in paragraph (a) or (b). > Note 1: A different rate may be determined for each class of taxable fuels. > Note 2: For the purposes of determining whether duty is payable for a taxable fuel at a rate per litre, per kilogram or per another unit of measurement, see whichever of the Excise Tariff Act 1921 and the Customs Tariff Act 1995 is applicable to the taxable fuel. (9) Before the \*Transport Minister determines an increased rate of road user charge, the Transport Minister must: (a) make the following publicly available for at least 60 days: (i) the proposed increased rate of road user charge; (ii) any information that was relied on in determining the proposed increased rate; and (b) consider any comments received, within the period specified by the Transport Minister, from the public in relation to the proposed increased rate. (10) However, the \*Transport Minister may, as a result of considering any comments received from the public in accordance with subsection (9), determine a rate of road user charge that is different from the proposed rate that was made publicly available without making that different rate publicly available in accordance with that subsection. (11) In determining the road user charge, the \*Transport Minister must not apply a method for indexing the charge. (11A) In determining the road user charge, the \*Transport Minister must determine the rate to one decimal place of a cent. (12) The \*Transport Minister must not make more than one determination in respect of a class of taxable fuel in a financial year if the effect of the determination would be to increase the road user charge for that class of taxable fuel more than once in that financial year. > Note: For the classes of taxable fuel, see subsection (8). ### Division 44—Increasing and decreasing fuel tax adjustments Table of Subdivisions Guide to Division 44 44‑A Increasing and decreasing fuel tax adjustments #### Guide to Division 44 #### 44‑1 What this Division is about Your entitlement to a fuel tax credit for taxable fuel is worked out on the basis of what the fuel is intended for when you acquire, manufacture or import the fuel. If you use or supply the fuel differently, or you do not use or supply the fuel at all, you have an increasing or decreasing fuel tax adjustment. Fuel tax adjustments are included in working out your net fuel amount under Division 60\. (Your assessed net fuel amount determines how much you owe the Commissioner or the Commissioner owes you.) #### Subdivision 44‑A—Increasing and decreasing fuel tax adjustments Table of Sections 44‑5 Increasing and decreasing fuel tax adjustments for change of circumstances 44‑10 Increasing fuel tax adjustment for failure to use or make a taxable supply of fuel #### 44‑5 Increasing and decreasing fuel tax adjustments for change of circumstances (1) You have a \*fuel tax adjustment if you use fuel, or make a \*taxable supply of fuel, and the \*amount of the fuel tax credit to which you would have been entitled for the use or supply would have been different from the amount to which you are or were entitled if one or both of the following were to apply: (a) you had originally acquired, manufactured or imported the fuel to use or make a taxable supply in the circumstances in which you did use, or make a taxable supply of, the fuel; (b) an alteration of a kind referred to in subsection 43‑6(2) that: (i) under that subsection, had been taken to have effect as if it is an amendment of an Act; and (ii) under subsection 43‑6(3) ceased to be taken to have that effect; had never been proposed as mentioned in subsection 43‑6(2). (2) The \*amount of the adjustment is the difference between the 2 amounts. > Note: Division 65 sets out which tax period or fuel tax return period the fuel tax adjustment is attributable to. Decreasing fuel tax adjustments (3) The \*fuel tax adjustment is a decreasing fuel tax adjustment if the \*amount to which you would have been entitled is greater than the amount to which you are or were entitled. Increasing fuel tax adjustments (4) The \*fuel tax adjustment is an increasing fuel tax adjustment if the \*amount to which you are or were entitled is greater than the amount to which you would have been entitled. > Note: Example: You acquire taxable fuel to use in a harvester in carrying on your farming enterprise, so you are paid a fuel tax credit for the fuel. Later on, you use the fuel to transport wheat in a vehicle of more than 4.5 tonnes travelling on a public road. As your fuel tax credit would have been reduced by the amount of the road user charge, you have an increasing fuel tax adjustment of the difference between the 2 amounts. #### 44‑10 Increasing fuel tax adjustment for failure to use or make a taxable supply of fuel You have an increasing fuel tax adjustment if: (a) you are or were entitled to a fuel tax credit for taxable fuel; and (b) you have no reasonable prospect of using, or making a \*taxable supply of, the fuel. The \*amount of the adjustment is the amount of the credit that you are or were entitled to. > Note: Example: You acquire taxable fuel to use in a harvester in carrying on your farming enterprise, so you are paid a fuel tax credit for the fuel. Later on, the fuel is stolen. You have an increasing fuel tax adjustment of the amount of the credit. > Note: Division 65 sets out which tax period or fuel tax return period the fuel tax adjustment is attributable to. ## Part 3‑3—Special rules ### Division 46—Instalment taxpayers Table of Subdivisions Guide to Division 46 46‑A Instalment taxpayers #### Guide to Division 46 #### 46‑1 What this Division is about If you are a GST instalment taxpayer, you work out and claim your fuel tax credits for GST instalment quarters, instead of the annual tax period you use for the GST. However, you can choose not to give a return for the first 3 GST instalment quarters in a financial year (but if you have an increasing fuel tax adjustment, you must give a return for the last quarter in the year). #### Subdivision 46‑A—Instalment taxpayers Table of Sections 46‑5 Instalment taxpayers #### 46‑5 Instalment taxpayers (1) If you are a \*GST instalment payer, you must treat each \*GST instalment quarter as if it were a \*tax period. GST instalment quarters to be treated as tax periods (2) For the purposes of working out under subsection 65‑5(1) which \*GST instalment quarter a fuel tax credit is attributable to, you must treat each GST instalment quarter as if, in the \*GST Act, the quarter were a \*tax period. Choice to give a return for first 3 quarters (3) You may choose whether to give the Commissioner a return for any of the first 3 \*GST instalment quarters in a \*financial year. If you do so, you must give the Commissioner your return on or before the day on which you are, or would be, required to pay your \*GST instalment to the Commissioner for the quarter (disregarding section 162‑80 of the \*GST Act). > Note: Section 162‑80 of the GST Act allows certain entities to pay only 2 GST instalments for a financial year. (4) If you choose not to give a return for any of those quarters, then any fuel tax credit or \*fuel tax adjustment that is attributable to that quarter: (a) ceases to be attributable to that quarter; and (b) becomes attributable to the first quarter for which you give the Commissioner a return. > Note: See subsection 65‑5(4) if your assessment for a quarter does not include a fuel tax credit that is attributable, under this subsection, to the quarter. Requirement to give a return for final quarter (5) If you have an \*increasing fuel tax adjustment that is (or, under subsection (4), would be) attributable to the last \*GST instalment quarter in the \*financial year, you must give the Commissioner a return for that quarter on or before the day on which you are, or would be, required to pay your \*GST instalment to the Commissioner for the quarter (disregarding section 162‑80 of the \*GST Act). ### Division 47—Time limit on entitlements to fuel tax credits Table of Subdivisions Guide to Division 47 47‑A Time limit on entitlements to fuel tax credits #### Guide to Division 47 #### 47‑1 What this Division is about Your entitlements to fuel tax credits cease unless they are included in your assessed net fuel amounts within a limited period (generally 4 years). #### Subdivision 47‑A—Time limit on entitlements to fuel tax credits Table of Sections 47‑5 Time limit on entitlements to fuel tax credits 47‑10 Exceptions to time limit on entitlements to fuel tax credits #### 47‑5 Time limit on entitlements to fuel tax credits (1) You cease to be entitled to a fuel tax credit to the extent that it has not been taken into account, in an \*assessment of a \*net fuel amount of yours, during the period of 4 years after the day on which you were required to give to the Commissioner a return for the tax period or fuel tax return period to which the fuel tax credit would be attributable under subsection 65‑5(1), (2) or (3). (2) Without limiting subsection (1), you also cease to be entitled to a fuel tax credit for taxable fuel you acquire, manufacture or import, to the extent that you did not give to the Commissioner under section 61‑15 during the period of 4 years after the day on which the acquisition, manufacture or importation occurred a return that takes the fuel tax credit into account. > Note: Section 47‑10 sets out circumstances in which your entitlement to the fuel tax credit does not cease under this section. #### 47‑10 Exceptions to time limit on entitlements to fuel tax credits If: (a) you requested the Commissioner to treat a document under subsection 29‑70(1B) of the \*GST Act as a tax invoice (within the meaning of that Act) for the purposes of attributing an \*input tax credit for fuel to a \*tax period; and (b) you made the request before the end of the 4‑year period mentioned in subsection 47‑5(1) of this Act in relation to the tax period; and (c) the Commissioner agrees to the request after the end of the 4‑year period; you do not cease under subsection 47‑5(1) to be entitled to a fuel tax credit for the fuel to the extent that, had the Commissioner agreed to the request before the end of the 4‑year period, you would not cease under that subsection to be entitled to the credit. Chapter 4—Common rules ## Part 4‑1—Net fuel amounts ### Division 60—Net fuel amounts Table of Subdivisions Guide to Division 60 60‑A Net fuel amounts #### Guide to Division 60 #### 60‑1 What this Division is about Your net fuel amount reflects how much you or the Commissioner must pay. A positive net fuel amount reflects how much you must pay the Commissioner. A negative net fuel amount reflects how much the Commissioner must pay you. Your net fuel amount is worked out for each tax period (or fuel tax return period if you are not registered, nor required to be registered, for GST). #### Subdivision 60‑A—Net fuel amounts Table of Sections 60‑5 Working out your net fuel amount 60‑10 Determinations relating to how to work out net fuel amounts #### 60‑5 Working out your net fuel amount Your net fuel amount for a \*tax period or a \*fuel tax return period is worked out using the following formula: ![Start formula Total fuel tax minus Total fuel tax credits plus Total increasing fuel tax adjustments minus Total decreasing fuel tax adjustments end formula](image.003.png) where: > total decreasing fuel tax adjustments is the sum of all \*decreasing fuel tax adjustments that are attributable to the period. > Note: Division 65 sets out which tax periods or fuel tax return periods fuel tax adjustments are attributable to. > total fuel tax is nil. > Note: Fuel tax is currently assessed under the Excise Act 1901, the Excise Tariff Act 1921, the Customs Act 1901 and the Customs Tariff Act 1995. > total fuel tax credits is the sum of all fuel tax credits to which you are entitled that are attributable to the period. > Note: Division 65 sets out which tax periods or fuel tax return periods fuel tax credits are attributable to. > total increasing fuel tax adjustments is the sum of all \*increasing fuel tax adjustments that are attributable to the period. > Note: Division 65 sets out which tax periods or fuel tax return periods fuel tax adjustments are attributable to. #### 60‑10 Determinations relating to how to work out net fuel amounts (1) The Commissioner may make a determination that, in the circumstances specified in the determination, a \*net fuel amount for a \*tax period or a \*fuel tax return period may be worked out to take account of other matters in the way specified in the determination. (2) The matters must relate to correction of errors that were made in working out \*net fuel amounts to which subsection (3) or (4) applies. (3) This subsection applies to a \*net fuel amount for a \*tax period (the earlier tax period) if: (a) the earlier tax period precedes the tax period mentioned in subsection (1); and (b) the tax period mentioned in subsection (1) starts during the \*period of review for the \*assessment of the net fuel amount. (4) This subsection applies to a \*net fuel amount for a \*fuel tax return period (the earlier fuel tax return period) if: (a) the earlier fuel tax return period precedes the fuel tax return period mentioned in subsection (1); and (b) the fuel tax return period mentioned in subsection (1) starts during the \*period of review for the \*assessment of the net fuel amount. (5) If the circumstances mentioned in subsection (1) apply in relation to a \*tax period or a \*fuel tax return period applying to you, you may work out your \*net fuel amount for the tax period or fuel tax return period in that way. ### Division 61—Returns, refunds and payments Table of Subdivisions Guide to Division 61 61‑A Returns, refunds and payments #### Guide to Division 61 #### 61‑1 What this Division is about You must give the Commissioner a return for each tax period (or fuel tax return period if you are not registered, nor required to be registered, for GST) by a specified time. If the Commissioner assesses you as having a positive net fuel amount, you must pay the Commissioner that amount. If the Commissioner assesses you as having a negative net fuel amount, the Commissioner must pay you that amount. > Note: For the assessment of the net fuel amount (including self‑assessment), see Division 155 in Schedule 1 to the Taxation Administration Act 1953. #### Subdivision 61‑A—Returns, refunds and payments Table of Sections 61‑5 Entitlement to a refund 61‑7 When entitlement arises 61‑10 Requirement to pay an assessed net fuel amount 61‑15 When you must give the Commissioner your return 61‑20 Fuel tax return periods #### 61‑5 Entitlement to a refund (1) If your \*assessed net fuel amount for a \*tax period or \*fuel tax return period is less than zero, the Commissioner must, on behalf of the Commonwealth, pay that \*amount (expressed as a positive amount) to you. > Note 1: See Division 3A of Part IIB of the Taxation Administration Act 1953 for the rules about how the Commissioner must pay you. Division 3 of Part IIB of that Act allows the Commissioner to apply the amount owing as a credit against tax debts that you owe to the Commonwealth. > Note 2: Interest is payable under the Taxation (Interest on Overpayments and Early Payments) Act 1983 if the Commissioner is late in paying the amount. (2) However, if: (a) the Commissioner amends the \*assessment of your \*net fuel amount for a \*tax period or \*fuel tax return period; and (b) your \*assessed net fuel amount before the amendment was less than zero; and (c) the \*amount that, because of the assessment, was: (i) paid; or (ii) applied under the Taxation Administration Act 1953; exceeded the amount (including a nil amount) that would have been payable or applicable had your assessed net fuel amount always been the later assessed net fuel amount; you must pay the excess to the Commissioner as if: (d) the excess were an assessed net fuel amount for that period; and (e) that assessed net fuel amount were an amount greater than zero and equal to the amount of the excess; and (f) despite section 61‑10, that assessed net fuel amount became payable, and due for payment, by you at the time when the amount was paid or applied. > Note: Treating the excess as if it were an assessed net fuel amount has the effect of applying the collection and recovery rules in Part 3‑10 in Schedule 1 to the Taxation Administration Act 1953, such as a liability to pay the general interest charge under section 105‑80 in that Schedule. #### 61‑7 When entitlement arises Your entitlement to be paid an \*amount under section 61‑5 arises when the Commissioner gives you notice of the \*assessment of your \*net fuel amount for the \*tax period or \*fuel tax return period. > Note: In certain circumstances, the Commissioner is treated as having given you notice of the assessment when you give to the Commissioner your return (see section 155‑15 in Schedule 1 to the Taxation Administration Act 1953). #### 61‑10 Requirement to pay an assessed net fuel amount You must pay your \*assessed net fuel amount for a \*tax period to the Commissioner by the day on which you are required under section 46‑5 or 61‑15 to give to the Commissioner your return for the tax period, if your assessed net fuel amount is greater than zero. #### 61‑15 When you must give the Commissioner your return (1) If you are \*registered for GST, or \*required to be registered for GST, you must give the Commissioner your return for a \*tax period on or before the day on which you are required to give the Commissioner your \*GST return for the tax period. > Note 1: For the penalties for failing to comply with these obligations, see the Taxation Administration Act 1953. > Note 2: If you lodge your GST return electronically, you must also electronically notify the Commissioner of your net fuel amount (see section 388‑80 in Schedule 1 to the Taxation Administration Act 1953). > Note 3: Instalment taxpayers may give their returns on a different day (see section 46‑5). (2) If you are neither \*registered for GST, nor \*required to be registered for GST, you must give the Commissioner your return for a \*fuel tax return period by the 21st day after the end of the fuel tax return period. (2A) You must, if required by the Commissioner, whether before or after the end of a \*tax period or \*fuel tax return period, give to the Commissioner, within the time required, a return or a further or fuller return for the tax period or fuel tax return period or a specified period, whether or not you have given the Commissioner a return for the tax period or fuel tax return period under subsection (1) or (2). (3) You must give the Commissioner your return for a \*tax period or a \*fuel tax return period in the \*approved form. #### 61‑20 Fuel tax return periods (1) If you are neither \*registered for GST, nor \*required to be registered for GST, your fuel tax return period is the period specified in the return. (2) However, you must end a \*fuel tax return period within 90 days, or any longer period allowed by the Commissioner, after you become aware of an \*increasing fuel tax adjustment under Division 44\. If you do not do so, your fuel tax return period ends at the end of the 90 days, or the longer period allowed by the Commissioner. > Note: You must give your return to the Commissioner by the 21st day after the end of the fuel tax return period (see section 61‑15). ## Part 4‑2—Attribution rules ### Division 65—Attribution rules Table of Subdivisions Guide to Division 65 65‑A Attribution rules #### Guide to Division 65 #### 65‑1 What this Division is about Fuel tax credits and fuel tax adjustments are attributed to tax periods (or fuel tax return periods). Generally, if you are a business taxpayer, your fuel tax credit for taxable fuel is attributed to the same period as your input tax credit for the fuel (to reduce compliance costs). If you are a non‑business taxpayer, your fuel tax credit for taxable fuel is attributed to the fuel tax return period in which you acquire, manufacture or import the fuel. Fuel tax adjustments are attributed to the tax period (or fuel tax return period) in which you become aware of the adjustment. #### Subdivision 65‑A—Attribution rules Table of Sections 65‑5 Attribution rules for fuel tax credits 65‑10 Attribution rules for fuel tax adjustments #### 65‑5 Attribution rules for fuel tax credits Attribution rules for fuel you acquire or import (1) If you are \*registered for GST, or \*required to be registered for GST, your fuel tax credit for taxable fuel that you acquire or import is attributable to: (a) the same \*tax period that your \*input tax credit for the fuel is attributable to under the \*GST Act; or (b) the same tax period that an input tax credit would have been attributable to under that Act if the fuel had been a \*creditable acquisition or a \*creditable importation. (2) If you are neither \*registered for GST, nor \*required to be registered for GST, your fuel tax credit for taxable fuel that you acquire or import is attributable to the \*fuel tax return period in which you acquire or import the fuel. Attribution rule for fuel you manufacture (3) Your fuel tax credit for taxable fuel that you manufacture is attributable to the \*tax period or \*fuel tax return period in which the fuel was entered for home consumption (within the meaning of the Excise Act 1901). Fuel tax credits not taken into account in assessments (4) Subsections (5) and (6) apply to a fuel tax credit to the extent that: (a) the fuel tax credit would otherwise be attributable to a particular \*tax period or \*fuel tax return period; and (b) the fuel tax credit has not been taken into account in an \*assessment of a \*net fuel amount of yours for that period. > Note: For another attribution rule for fuel tax credits, see subsection 46‑5(4) (GST instalment taxpayers). (5) To the extent this subsection applies to the fuel tax credit, you may, by notifying the Commissioner in the \*approved form, elect for: (a) the fuel tax credit not to be attributable to that \*tax period or \*fuel tax return period; and (b) the fuel tax credit to be attributable to a later specified tax period or fuel tax return period. > Note: Division 47 may provide a time limit on your entitlement to a fuel tax credit. (6) You cannot revoke or amend an election you make under subsection (5). #### 65‑10 Attribution rules for fuel tax adjustments A \*fuel tax adjustment under Division 44 is attributable to the \*tax period or \*fuel tax return period in which you become aware of the adjustment. > Note: For another attribution rule for fuel tax adjustments, see subsection 46‑5(4) (GST instalment taxpayers). ## Part 4‑3—Special rules about entities ### Division 70—Special rules about entities Table of Subdivisions Guide to Division 70 70‑A Special rules about entities and how they are organised 70‑B Government entities #### Guide to Division 70 #### 70‑1 What this Division is about This Act applies to GST groups, joint ventures, religious practitioners, incapacitated entities, branches, resident agents and non‑profit sub‑entities in a similar way to the way in which the GST Act applies to those entities. Government entities that are registered for GST are treated as if they are carrying on an enterprise. #### Subdivision 70‑A—Special rules about entities and how they are organised Table of Sections 70‑5 Application of fuel tax law to GST groups and joint ventures 70‑10 Entry and exit history rules 70‑15 Consolidating joint venture returns 70‑20 Application of fuel tax law to religious practitioners 70‑25 Application of fuel tax law to incapacitated entities 70‑30 Application of fuel tax law to GST branches, resident agents and non‑profit sub‑entities #### 70‑5 Application of fuel tax law to GST groups and joint ventures (1) The entities in column 1 of the table are treated as a single entity for the purposes of the \*fuel tax law. (2) The entity in column 2 of the table has all the rights, powers and obligations of the single entity under the \*fuel tax law (instead of each entity in column 1 having those rights, powers and obligations). ```html <table cellspacing="0" cellpadding="0" style="margin-left:0.25pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:343.5pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Application of fuel tax law to GST groups and joint ventures</td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Item</td><td style="width:148.5pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Column 1These entities are treated as a single entity for the purposes of the fuel tax law</td><td style="width:148.5pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Column 2This entity has all the rights, powers and obligations of the single entity under the fuel tax law</td></tr></thead><tbody><tr><td style="width:24.9pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">1</td><td style="width:148.5pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">The members of a *GST group</td><td style="width:148.5pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">The representative member of the group</td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">2</td><td style="width:148.5pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">The *participants in a *GST joint venture (to the extent that any relevant fuel is acquired, manufactured or imported in the course of activities for which the joint venture was entered into)</td><td style="width:148.5pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">The *joint venture operator of the joint venture</td></tr></tbody></table> ``` > Note: Sections 444‑80 and 444‑90 in Schedule 1 to the Taxation Administration Act 1953 affect the operation of this section. #### 70‑10 Entry and exit history rules Entry history rule (1) For the purposes of the \*fuel tax law, from the time when a particular entity starts to be treated as part of a single entity under section 70‑5, everything that happened (including because of any previous application of this section) before that time, in relation to any fuel in the hands of the particular entity at that time, is taken to have happened as if the fuel had been in the hands of the single entity. > Note: Example: The single entity is taken to have acquired the fuel for the purposes for which the particular entity acquired the fuel. Exit history rule (2) For the purposes of the \*fuel tax law, from the time when a particular entity ceases to be treated as part of a single entity under section 70‑5, everything that happened (including because of any previous application of this section) before that time, in relation to any fuel in the hands of the particular entity immediately after that time, is taken to have happened as if the fuel had been in the hands of the particular entity. > Note: Example: The particular entity is taken to have acquired the fuel for the purposes for which the single entity acquired the fuel. #### 70‑15 Consolidating joint venture returns If, under section 51‑52 of the \*GST Act, an election is in force to consolidate a \*joint venture operator’s \*GST returns relating to its \*GST joint ventures, the operator must consolidate its returns under this Act relating to the joint ventures. #### 70‑20 Application of fuel tax law to religious practitioners The \*fuel tax law applies to \*religious practitioners and religious institutions in the same way as the \*GST Act applies to them under Division 50 of that Act. #### 70‑25 Application of fuel tax law to incapacitated entities The \*fuel tax law applies to an \*incapacitated entity and its representative (within the meaning of the \*GST Act) in the same way as that Act applies to them under Division 58 of that Act. #### 70‑30 Application of fuel tax law to GST branches, resident agents and non‑profit sub‑entities While an entity meets the condition in column 1 of the table, the \*fuel tax law applies to: (a) the entity; and (b) its fuel tax credits, \*net fuel amount, \*assessed net fuel amount and \*fuel tax adjustments; in a corresponding way to the way in which the \*GST law applies, because of the Division of the \*GST Act mentioned in column 2, to: (c) the entity; and (d) its \*input tax credits, \*net amount, assessed net amount and \*adjustments. ```html <table cellspacing="0" cellpadding="0" style="margin-left:0.25pt; border-collapse:collapse"><thead><tr><td colspan="3" style="width:343.5pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Application of fuel tax law to GST branches, resident agents and non‑profit sub‑entities</td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Item</td><td style="width:134.75pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Column 1While this condition is met ...</td><td style="width:162.25pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Column 2the fuel tax law applies in a corresponding way to the way in which the GST law applies to the entity because of this Division of the GST Act ...</td></tr></thead><tbody><tr><td style="width:24.9pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">1</td><td style="width:134.75pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">The entity has a *GST branch</td><td style="width:162.25pt; border-top:1.5pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Division 54</td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">2</td><td style="width:134.75pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">The entity has a *resident agent</td><td style="width:162.25pt; border-top:0.75pt solid #000000; border-bottom:0.75pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Division 57</td></tr><tr><td style="width:24.9pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">3</td><td style="width:134.75pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">The entity has a non‑profit sub‑entity</td><td style="width:162.25pt; border-top:0.75pt solid #000000; border-bottom:1.5pt solid #000000; padding-right:5.4pt; padding-left:5.4pt; vertical-align:top">Division 63</td></tr></tbody></table> ``` #### Subdivision 70‑B—Government entities Table of Sections 70‑35 Application of fuel tax law to government entities #### 70‑35 Application of fuel tax law to government entities A \*government entity that is \*registered for GST is treated, while its registration has effect, as if it were an entity \*carrying on an \*enterprise. ## Part 4‑4—Anti‑avoidance ### Division 75—Anti‑avoidance Table of Subdivisions Guide to Division 75 75‑A Application of this Division 75‑B Commissioner may negate effects of schemes for fuel tax benefits #### Guide to Division 75 #### 75‑1 What this Division is about The object of this Division is to deter schemes that give entities benefits by reducing fuel tax, increasing refunds or altering the timing of payment of assessed net fuel amounts. If the dominant purpose or principal effect of a scheme is to give an entity such a benefit, the Commissioner may negate the benefit any entity gets from the scheme by making a declaration stating the entity’s net fuel amount for a particular tax period, despite the scheme. #### Subdivision 75‑A—Application of this Division Table of Sections 75‑5 When does this Division operate? 75‑10 When does an entity get a fuel tax benefit from a scheme? 75‑15 Matters to be considered in determining purpose or effect #### 75‑5 When does this Division operate? General rule (1) This Division operates if: (a) an entity (the avoider) gets a \*fuel tax benefit from a \*scheme; and (b) the fuel tax benefit is not attributable to the making, by any entity, of a choice, election, application or agreement that is expressly provided for by the \*fuel tax law or the \*GST law; and (c) taking account of the matters described in section 75‑15, it is reasonable to conclude that either: (i) an entity that (whether alone or with others) entered into or carried out the scheme, or part of the scheme, did so with the sole or dominant purpose of that entity or another entity getting a fuel tax benefit from the scheme; or (ii) the principal effect of the scheme, or of part of the scheme, is that the avoider gets the fuel tax benefit from the scheme directly or indirectly; and (d) the avoider gets the fuel tax benefit from the scheme on or after 1 July 2006. Territorial application (2) It does not matter whether the \*scheme, or any part of the scheme, was entered into or carried out inside or outside Australia. #### 75‑10 When does an entity get a fuel tax benefit from a scheme? (1) An entity gets a fuel tax benefit from a \*scheme if: (a) an \*amount that is payable by the entity under this Act apart from this Division is, or could reasonably be expected to be, smaller than it would be apart from the scheme or a part of the scheme; or (b) an amount that is payable to the entity under this Act apart from this Division is, or could reasonably be expected to be, larger than it would be apart from the scheme or a part of the scheme; or (c) all or part of an amount that is payable by the entity under this Act apart from this Division is, or could reasonably be expected to be, payable later than it would have been apart from the scheme or a part of the scheme; or (d) all or part of an amount that is payable to the entity under this Act apart from this Division is, or could reasonably be expected to be, payable earlier than it would have been apart from the scheme or a part of the scheme. Fuel tax benefit can arise even if no economic alternative (2) An entity can get a \*fuel tax benefit from a \*scheme even if the entity or entities that entered into or carried out the scheme, or a part of the scheme, could not have engaged economically in any activities: (a) of the kind to which this Act applies; and (b) that would produce an effect equivalent (except in terms of this Act) to the effect of the scheme or part of the scheme; other than the activities involved in entering into or carrying out the scheme or part of the scheme. #### 75‑15 Matters to be considered in determining purpose or effect (1) The following matters are to be taken into account under section 75‑5 in considering an entity’s purpose in entering into or carrying out the \*scheme from which the avoider got a \*fuel tax benefit, and the effect of the scheme: (a) the manner in which the scheme was entered into or carried out; (b) the form and substance of the scheme, including: (i) the legal rights and obligations involved in the scheme; and (ii) the economic and commercial substance of the scheme; (c) the purpose or object (whether or not expressly stated) of any of the following Acts, and any relevant provision of those Acts, so far as they are relevant to this Act: (i) this Act; (ii) the Excise Act 1901 and the Excise Tariff Act 1921; (iii) the Customs Act 1901 and the Customs Tariff Act 1995; (v) the \*GST Act; (d) the timing of the scheme; (e) the period over which the scheme was entered into and carried out; (f) the effect that this Act would have in relation to the scheme apart from this Division; (g) any change in the avoider’s financial position that has resulted, or may reasonably be expected to result, from the scheme; (h) any change that has resulted, or may reasonably be expected to result, from the scheme in the financial position of an entity (a connected entity) that has or had a connection or dealing with the avoider, whether the connection or dealing is or was of a family, business or other nature; (i) any other consequence for the avoider or a connected entity of the scheme having been entered into or carried out; (j) the nature of the connection between the avoider and a connected entity; (k) the circumstances surrounding the scheme; (l) any other relevant circumstances. (2) Subsection (1) applies in relation to consideration of an entity’s purpose in entering into or carrying out a part of a \*scheme from which the avoider gets a \*fuel tax benefit, and the effect of part of the scheme, as if the part were itself the scheme from which the avoider gets the fuel tax benefit. #### Subdivision 75‑B—Commissioner may negate effects of schemes for fuel tax benefits Table of Sections 75‑40 Commissioner may make declaration for purpose of negating avoider’s fuel tax benefits 75‑45 Commissioner may reduce an entity’s net fuel amount to compensate 75‑50 Declaration has effect according to its terms 75‑55 Commissioner may disregard scheme in making declarations 75‑60 One declaration may cover several tax periods or fuel tax return periods 75‑65 Commissioner must give copy of declaration to entity affected #### 75‑40 Commissioner may make declaration for purpose of negating avoider’s fuel tax benefits (1) For the purpose of negating a \*fuel tax benefit the avoider gets from the \*scheme, the Commissioner may make a declaration stating the \*amount that is (and has been at all times) the avoider’s \*net fuel amount for a specified \*tax period or \*fuel tax return period that has ended. (2) A declaration under this section is not a legislative instrument. (3) The Commissioner must take such action as he or she considers necessary to give effect to a declaration made under this section. #### 75‑45 Commissioner may reduce an entity’s net fuel amount to compensate (1) This section operates if: (a) the Commissioner has made a declaration under subsection 75‑40(1) to negate the \*fuel tax benefit an entity gets from a \*scheme; and (b) the Commissioner considers that another entity (the loser) gets a \*fuel tax disadvantage from the scheme; and (c) the Commissioner considers that it is fair and reasonable that the loser’s fuel tax disadvantage be negated or reduced. (2) An entity gets a fuel tax disadvantage from a \*scheme if: (a) an \*amount that is payable by the entity under this Act apart from this Division is, or could reasonably be expected to be, larger than it would have been apart from the scheme or a part of the scheme; or (b) an amount that is payable to the entity under this Act apart from this Division is, or could reasonably be expected to be, smaller than it would have been apart from the scheme or a part of the scheme; or (c) all or part of an amount that is payable by the entity under this Act apart from this Division is, or could reasonably be expected to be, payable earlier than it would have been apart from the scheme or a part of the scheme; or (d) all or part of an amount that is payable to the entity under this Act apart from this Division is, or could reasonably be expected to be, payable later than it would have been apart from the scheme or a part of the scheme. (3) For the purposes of negating or reducing the loser’s \*fuel tax disadvantage from the \*scheme, the Commissioner may make a declaration (under this section) stating the \*amount that is (and has been at all times) the loser’s \*net fuel amount for a specified \*tax period or \*fuel tax return period that has ended. (4) An \*amount stated in a declaration as the loser’s \*net fuel amount must not be less than the net fuel amount would have been apart from the \*scheme, or part of the scheme, and the declaration. (5) An entity may give the Commissioner a written request to make a declaration under this section relating to the entity. The Commissioner must decide whether or not to grant the request, and give the entity notice of the Commissioner’s decision. (6) A declaration under this section is not a legislative instrument. #### 75‑50 Declaration has effect according to its terms For the purpose of making an \*assessment, a statement in a declaration under this Subdivision has effect according to its terms, despite the provisions of this Act outside of this Division. #### 75‑55 Commissioner may disregard scheme in making declarations For the purposes of making a declaration under this Subdivision, the Commissioner may: (a) treat a particular event that actually happened as not having happened; and (b) treat a particular event that did not actually happen as having happened and, if appropriate, treat the event as: (i) having happened at a particular time; and (ii) having involved particular action by a particular entity; and (c) treat a particular event that actually happened as: (i) having happened at a time different from the time it actually happened; or (ii) having involved particular action by a particular entity (whether or not the event actually involved any action by that entity). #### 75‑60 One declaration may cover several tax periods or fuel tax return periods Statements relating to different \*tax periods or \*fuel tax return periods may be included in a single declaration under this Subdivision. #### 75‑65 Commissioner must give copy of declaration to entity affected (1) The Commissioner must give a copy of a declaration under this Subdivision to the entity whose \*net fuel amount is stated in the declaration. (2) A failure to comply with subsection (1) does not affect the validity of the declaration. ## Part 4‑5—Miscellaneous ### Division 95—Miscellaneous Table of Subdivisions Guide to Division 95 95‑A Miscellaneous #### Guide to Division 95 #### 95‑1 What this Division is about This Division provides for determinations and regulations to be made for the purposes of the fuel tax law. #### Subdivision 95‑A—Miscellaneous Table of Sections 95‑5 Determination of blends that no longer constitute fuels 95‑10 Application of this law to the Commonwealth 95‑100 Regulations #### 95‑5 Determination of blends that no longer constitute fuels (1) For the purposes of the \*fuel tax law, the Commissioner may, by legislative instrument, determine that a blend of a fuel and another product does not constitute a fuel. (2) An entity that blends that fuel and that other product to produce that blend is taken to have used that fuel. (3) In making a determination under subsection (1), the Commissioner must consider the following matters: (a) the physical and chemical properties of the blend; (b) whether the blend can be used in an internal combustion engine; (c) whether the blend is marketed and distributed as fuel; (d) whether there is a risk that the blend might be used as fuel, and the financial impact on the Commonwealth if the blend were used as fuel; (e) any other relevant matter. The Commissioner must give the greatest weight to the matter mentioned in paragraph (d). #### 95‑10 Application of this law to the Commonwealth (1) It is the Parliament’s intention that the Commonwealth and \*untaxable Commonwealth entities should: (a) be notionally entitled to fuel tax credits; and (b) have notional \*fuel tax adjustments. > Note: The fuel tax law binds the Crown in right of the States, the Australian Capital Territory and the Northern Territory (see section 1‑15). (2) The \*Finance Minister may give such written directions as are necessary or convenient for carrying out or giving effect to subsection (1) and, in particular, may give directions in relation to the transfer of money within an account, or between accounts, operated by the Commonwealth or an \*untaxable Commonwealth entity. (3) The directions given under subsection (2) may also take account of the provisions of the Fuel Tax (Consequential and Transitional Provisions) Act 2006. (4) Directions under subsection (2) have effect, and must be complied with, despite any other Commonwealth law. (5) A direction given under subsection (2) is not a legislative instrument. #### 95‑100 Regulations The Governor‑General may make regulations prescribing matters: (a) required or permitted by this Act to be prescribed; or (b) necessary or convenient to be prescribed for carrying out or giving effect to this Act. Chapter 5—Interpretation ## Part 5‑1—Rules for interpreting this Act ### Division 105—Rules for interpreting this Act Table of Subdivisions 105‑A Rules for interpreting this Act #### Subdivision 105‑A—Rules for interpreting this Act Table of Sections 105‑1 What forms part of this Act 105‑5 What does not form part of this Act 105‑10 Guides, and their role in interpreting this Act #### 105‑1 What forms part of this Act (1) These all form part of this Act: (a) the headings to the Chapters, Parts, Divisions and Subdivisions of this Act; (b) \*Guides; (c) the headings to the sections and subsections of this Act; (d) the headings for groups of sections of this Act (group headings); (e) the notes and examples (however described) that follow provisions of this Act. (2) The asterisks used to identify defined terms form part of this Act. However, if a term is not identified by an asterisk, disregard that fact in deciding whether or not to apply to that term a definition or other interpretation provision. #### 105‑5 What does not form part of this Act These do not form part of this Act: (a) footnotes and endnotes; (b) Tables of Subdivisions; (c) Tables of sections. #### 105‑10 Guides, and their role in interpreting this Act (1) A Guide consists of: (a) sections under a heading indicating that what follows is a Guide to a particular Subdivision, Division etc.; or (b) a Subdivision, Division or Part that is identified as a Guide by a provision in the Subdivision, Division or Part. (2) \*Guides form part of this Act, but they are kept separate from the operative provisions. In interpreting an operative provision, a Guide may only be considered: (a) in determining the purpose or object underlying the provision; or (b) to confirm that the provision’s meaning is the ordinary meaning conveyed by its text, taking into account its context in the Act and the purpose or object underlying the provision; or (c) in determining the provision’s meaning if the provision is ambiguous or obscure; or (d) in determining the provision’s meaning if the ordinary meaning conveyed by its text, taking into account its context in the Act and the purpose or object underlying the provision, leads to a result that is manifestly absurd or is unreasonable. ## Part 5‑3—Dictionary ### Division 110—Dictionary Table of Subdivisions 110‑A Dictionary #### Subdivision 110‑A—Dictionary Table of Sections 110‑5 Dictionary #### 110‑5 Dictionary In this Act: > adjustment has the meaning given by section 195‑1 of the \*GST Act. > amount includes a nil amount. > approved form has the meaning given by section 388‑50 in Schedule 1 to the Taxation Administration Act 1953. > assessed net fuel amount, for a \*tax period, or for a \*fuel tax return period, means the \*net fuel amount \*assessed for the tax period or fuel tax return period. > assessment has the meaning given by the Income Tax Assessment Act 1997. > biodiesel has the same meaning as it has in the Excise Tariff Act 1921. > carrying on an \*enterprise has the meaning given by section 195‑1 of the \*GST Act. > Commissioner means the Commissioner of Taxation. > Note: The office of Commissioner of Taxation is created by section 4 of the Taxation Administration Act 1953. > creditable acquisition has the meaning given by section 195‑1 of the \*GST Act. > creditable importation has the meaning given by section 195‑1 of the \*GST Act. > decreasing adjustment has the meaning given by section 195‑1 of the \*GST Act. > decreasing fuel tax adjustment has the meaning given by section 44‑5. > effective fuel tax has the meaning given by sections 43‑5 and 43‑7. > enterprise has the meaning given by section 9‑20 of the \*GST Act. > entity has the meaning given by section 184‑1 of the \*GST Act. > Finance Minister has the meaning given by section 195‑1 of the \*GST Act. > financial year has the meaning given by section 195‑1 of the \*GST Act. > fuel tax has the meaning given by section 43‑6. > fuel tax adjustment means an \*increasing fuel tax adjustment or a \*decreasing fuel tax adjustment. > fuel tax benefit has the meaning given by section 75‑10. > fuel tax credit means an entitlement arising under section 41‑5, 41‑10 or 42‑5. > fuel tax disadvantage has the meaning given by section 75‑45. > fuel tax law means: (a) this Act; and (b) the Fuel Tax (Consequential and Transitional Provisions) Act 2006; and (c) the Taxation Administration Act 1953, so far as it relates to any Act covered by paragraphs (a) and (b); and (d) any other Act, so far as it relates to any Act covered by paragraphs (a) to (c) (or to so much of that Act as is covered); and (e) regulations under any Act, so far as they relate to any Act covered by paragraphs (a) to (d) (or to so much of that Act as is covered). > fuel tax return period has the meaning given by section 61‑20. > government entity has the meaning given by section 41 of the A New Tax System (Australian Business Number) Act 1999. > GST Act means the A New Tax System (Goods and Services Tax) Act 1999. > GST branch has the meaning given by section 54‑5 of the \*GST Act. > GST group has the meaning given by section 48‑5 of the \*GST Act. > GST instalment has the meaning given by subsection 162‑70(1) of the \*GST Act. > GST instalment payer has the meaning given by section 162‑50 of the \*GST Act. > GST instalment quarter has the meaning given by subsections 162‑70(2) and (3) of the \*GST Act. > GST joint venture has the meaning given by section 51‑5 of the \*GST Act. > GST law has the meaning given by section 195‑1 of the \*GST Act. > GST return has the meaning given by section 195‑1 of the \*GST Act. > Guide has the meaning given by section 105‑10. > incapacitated entity has the meaning given by section 195‑1 of the \*GST Act. > increasing adjustment has the meaning given by section 195‑1 of the \*GST Act. > increasing fuel tax adjustment has the meaning given by sections 44‑5 and 44‑10. > indirect tax zone has the meaning given by section 195‑1 of the \*GST Act. > input tax credit has the meaning given by section 195‑1 of the \*GST Act. > input taxed has the meaning given by section 195‑1 of the \*GST Act. > joint venture operator has the meaning given by section 195‑1 of the \*GST Act. > LPG means: (a) liquid propane; or (b) a liquid mixture of propane and butane; or (c) a liquid mixture of propane and other hydrocarbons that consists mainly of propane; or (d) a liquid mixture of propane, butane and other hydrocarbons that consists mainly of propane and butane. > motor vehicle has the meaning given by section 995‑1 of the Income Tax Assessment Act 1997. > net amount has the meaning given by section 195‑1 of the \*GST Act. > net fuel amount has the meaning given by section 60‑5. > participant has the meaning given by section 195‑1 of the \*GST Act. > period of review, for an \*assessment, has the meaning given by section 155‑35 in Schedule 1 to the Taxation Administration Act 1953. > primary production business has the meaning given by subsection 995‑1(1) of the Income Tax Assessment Act 1997. > registered for GST has the meaning given to registered by section 195‑1 of the \*GST Act. > religious practitioner has the meaning given by section 195‑1 of the \*GST Act. > required to be registered for GST has the meaning given to required to be registered by section 195‑1 of the \*GST Act. > resident agent has the meaning given by section 195‑1 of the \*GST Act. > residential premises has the meaning given by section 195‑1 of the \*GST Act. > scheme has the meaning given by subsection 165‑10(2) of the \*GST Act. > taxable fuel means fuel in respect of which duty is payable under: (a) the Excise Act 1901 and the Excise Tariff Act 1921; or (b) the Customs Act 1901 and the Customs Tariff Act 1995; but does not include fuel covered by: (c) item 15, 20 or 21 of the Schedule to the Excise Tariff Act 1921; or (d) any imported goods that would be classified to item 15 of the Schedule to the Excise Tariff Act 1921, if the goods had been manufactured in the indirect tax zone. > Note: Item 15 of the Schedule to the Excise Tariff Act 1921 deals with certain petroleum based oils and greases. Item 20 of that Schedule deals with certain stabilised crude petroleum oils. Item 21 of that Schedule deals with certain condensate. > taxable supply has the meaning given by section 195‑1 of the \*GST Act. > tax period has the meaning given by section 195‑1 of the \*GST Act. > Transport Department means the Department administered by the \*Transport Minister. > Transport Minister means the Minister who administers the Road Vehicle Standards Act 2018. > Transport Secretary means the Secretary of the \*Transport Department. > untaxable Commonwealth entity has the meaning given by section 177‑1 of the \*GST Act. > you: if a provision of this Act uses the expression you, it applies to entities generally, unless its application is expressly limited. > Note: The expression you is not used in provisions that apply only to entities that are not individuals.