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Can a taxpayer claim losses incurred under forward contracts for differences in the price of petroleum to reduce the 'assessable petroleum receipts' derived by the taxpayer pursuant to section 24 of the Petroleum Resource Rent Tax Assessment Act 1987 (PRRTAA) on the basis that the losses are expenses payable by the taxpayer in relation to the sale of petroleum?

No. The losses incurred are not 'expenses payable' by the taxpayer 'in relation to the sale' of any petroleum or marketable petroleum commodity (MPC) as per subsection 24(1) of the PRRTAA.

The taxpayer is involved in petroleum projects which are subject to Petroleum Resource Rent Tax (PRRT).

The taxpayer entered into arm's length forward contracts with another party. The contracts do not involve the physical delivery of oil. The terms of the contract are that the parties undertake to pay the difference between an initial set price and a price payable which is calculated under a formula, with reference to average prices, on a pre-determined close-out date. Where the market price on the close-out date is greater than that fixed in the contract, the taxpayer is required to pay an amount to the other party based on the difference. Any amounts so paid are a loss to the taxpayer.

The taxpayer contends that the forward contracts for differences were entered into as hedges, that produce countervailing effects to the effect of any change in the price of oil between the time the taxpayer commits to production and the time the taxpayer sells the oil.

Losses are not taken into account for PRRT purposes under section 24 of the PRRTAA as reductions to consideration receivable for the sale of petroleum or marketable petroleum commodity's in an arm's length transaction.

Broadly, under section 24 of the PRRTAA, the sale price brought to account for PRRT purposes is the gross consideration receivable less any expenses payable by the person in relation to the sale. If sold at less than arm's length, the assessable receipts will be taken under section 57 of the PRRTAA to be the amount of receipts expected if the transaction had been at arm's length.

Any losses on the forward contracts for differences do not affect the consideration receivable by the taxpayer when it sells oil or the costs of that sale. That consideration is not set by reference to the difference contracts; and if the taxpayer actually sells no oil the difference contracts will still produce the same result.

Even if the forward contracts for differences are entered into as hedges, they do not affect the consideration for or the costs of sale of oil. As hedges, they produce a result which runs counter to the effect of changes in the price of oil on the actual sale of oil; but they do not change the consideration for or costs of the actual sale of oil.