20Tolling arrangements and commercial tolling fees

20  Tolling arrangements and commercial tolling fees  (1) In this instrument, a tolling arrangement, in relation to a relevant operation (the shipper operation), is an arrangement for one or more actions mentioned in section 8 in relation to project product of the shipper operation (the tolled actions) to be carried out by one or more persons (the host parties), where:  (a) the parties to the arrangement are:  (i) one or more of the participants in the shipper operation (the shipper parties); and  (ii) the host parties (one or more of whom may also be a shipper party, subject to paragraph (b)); and  (b) either of both the following apply:  (i) at least one shipper party is not also a host party;  (ii) at least one host party is not also a shipper party; and  (c) under the arrangement, an amount or amounts are paid in consideration of the carrying out of the tolled actions; and  (d) under the arrangement, custody of the project product changes between:  (i) the shipper parties; and  (ii) the host parties;   at least once. Note: Some of the shipper parties and host parties may be the same people (although not all, because of paragraph (b)). If they are, the requirements in paragraphs (c) and (d) may be met by payments, or changes in custody, between the shipper parties as a group and the host parties as a group.  (2) The amount or amounts mentioned in paragraph (1)(c) are a commercial tolling fee if the amount or amounts might be expected to have been arrived at in arm’s length conditions.  (3) If the Commissioner is satisfied that:  (a) there is a tolling arrangement in relation to a shipper operation; and  (b) under the arrangement, an amount or amounts are paid in consideration of the carrying out of the tolled actions in relation to the project product of the shipper operation; and  (c) the amount or amounts, considered together, are not a commercial tolling fee; and  (d) an amount worked out by the Commissioner might be expected, in arm’s length conditions, to be paid under the tolling arrangement in consideration of the carrying out of the tolled actions in relation to the project product of the shipper operation; then:  (e) the amount worked out as mentioned in paragraph (d) is taken, for the purposes of working out an RPM price of a participant in the shipper operation under this instrument:  (i) to be a commercial tolling fee; and  (ii) to have been paid in consideration of the carrying out of the tolled actions; and  (iii) to have been paid, in whole or part, at a time or times determined by the Commissioner; and  (iv) to have been paid, in whole or part, by a person or persons determined by the Commissioner; and  (f) any amount paid in consideration of the carrying out of the tolled actions (disregarding paragraph (e)) is taken, for the purposes of working out an RPM price of a participant in the shipper operation under this instrument, not to be a cost associated with the shipper operation. Note: If an amount or amounts are paid under a tolling arrangement, and the amount or amounts are not a commercial tolling fee under subsection (2) or this subsection, it may not be possible to use the RPM (see subsection 33(2)).  (4) In making a determination under subparagraph (3)(e)(iii) or (iv), the Commissioner must have regard to both the form and substance of the tolling arrangement. However, the Commissioner must disregard the form of the arrangement to the extent (if any) that it is inconsistent with the substance of the arrangement.