Allseas Marine Contractors SA and Commissioner of Taxation - [2005] AATA 7

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2005] AATA 7
ADMINISTRATIVE APPEALS TRIBUNAL
TAXATION APPEALS DIVISION NT2003/228
Re: ALLSEAS MARINE CONTRACTORS SA
Applicant

And:COMMISSIONER of TAXATION
Respondent

DECISION
Tribunal:       P.J. Lindsay, Senior Member
Date:             6 January 2005
Place:            Sydney
Decision: The decision under review should be varied by determining that diesel fuel rebate is payable to the applicant pursuant to s.164(1)(ac) of the Customs Act 1901 and s.78A(1)(ac) of the Excise Act 1901 in respect             of the diesel fuel purchased by the applicant for use:
(a) by the Lorelay in all its activities in laying pipe across the   Bass Strait, such use was in marine transport in the course of                    the applicant’s carrying on an enterprise, except use (i)   in powering the Phoenix welding equipment and (ii) in applying              the anti-corrosive coating;
(b) by the Searanger in propelling the vessel while carrying fuel                   to the Lorelay (and back) and while carrying the remote   controlled vessel to the point of survey (and back), such use   was in marine transport in the course of the applicant’s carrying                  on an enterprise, but the rebate is not otherwise payable.
The matter is remitted to the respondent for calculation of the diesel           fuel rebate in accordance with these reasons.

. . . . . . . . . . . . . . . . . . . . . . . .
P. J. Lindsay, Senior Member

© Commonwealth of Australia (2005)

CATCHWORDS
Customs and excise - diesel fuel rebate – use of fuel by vessel in laying pipes across Bass Strait – use of fuel by vessel in surveying path on sea bed for laying pipes – whether uses of fuel in marine transport – apportionment of diesel fuel used to activities – decision varied
Customs Act 1901 ss.164(1AA),(1)(ac), (2), (7)
Excise Act 1901 s.78A(1)(ac)
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Chief Executive Officer of Customs v Dyno Wesfarmers Limited (1997) 73 FCR 1
Port of Brisbane Corporation v Deputy Commissioner of Taxation [2004] FCA 1232
Australian National Railways Commission v Collector of Customs, South Australia (1985) 8 FCR 264
REASONS FOR DECISION

P.J. Lindsay, Senior Member

1. This matter concerns the applicant’s claim for the diesel fuel rebate. The applicant, Allseas Marine Contractors S.A., maintains that it purchased diesel fuel for use in marine transport, thus entitling it to the rebate. The claim was partly allowed by the Commissioner of Taxation (the respondent).
2. The applicant seeks review of the respondent’s objection decision dated 14 July 2003. That decision was to allow only in part, the objection of 7 May 2003 regarding the respondent’s refusal to pay diesel fuel rebate.
3. At the hearing, Mr A Robertson SC, with Mr D Leeming, appeared for the applicant. Mr S Lloyd of counsel appeared for the respondent. The tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and a witness statement by Willem Van Benten dated 9…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Allseas Marine Contractors SA and Commissioner of Taxation

Details

AGLC: Allseas Marine Contractors SA and Commissioner of Taxation [2005] AATA 7
Case: [2005] AATA 7
Decision Date: 6 January 2005

CaseChat Overview and Summary

Allseas Marine Contractors SA, an entity involved in the laying of pipes across Bass Strait, was involved in a dispute with the Commissioner of Taxation regarding the entitlement to a rebate for diesel fuel used by their vessel. The dispute was brought before the Federal Court of Australia. The central issue was whether the fuel used by the vessel in laying pipes and surveying the seabed for pipe laying qualified for a rebate under the Customs Act 1901 and Excise Act 1901. The court had to determine the extent to which the diesel fuel was used for activities that qualified as "marine transport."

The court examined the definitions and interpretations of "marine transport" and "use of fuel" in the relevant Acts and previous case law. It considered the nature of the vessel's activities, including the laying of pipes and the surveying of the seabed, and how these activities related to the definition of marine transport. The court also assessed whether the fuel usage could be apportioned between qualifying and non-qualifying activities.

The court found that while some of the vessel's activities, such as laying pipes, qualified as marine transport, the surveying activities did not. However, the court concluded that the fuel usage could be apportioned between these activities. The court varied the decision of the Commissioner, adjusting the amount of the rebate to reflect the apportionment of the fuel usage to qualifying activities.

The final orders of the court included a variation of the Commissioner's decision to adjust the rebate entitlement based on the apportionment of diesel fuel used between qualifying and non-qualifying activities. The court's decision clarified the scope of the rebate entitlement for fuel used in marine transport activities and provided a framework for apportioning fuel usage between qualifying and non-qualifying activities.

Orders