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Is an entity required to be registered for the energy grants credit scheme at the time that they make an election to receive early payments under Item 12A of Schedule 3 to the Fuel Tax (Consequential and Transitional Provisions) Act 2006 (Fuel Tax Transitional Act)?

No. It is sufficient for the entity to be registered for the energy grants credit scheme at the time that they make a claim for an early payment under Item 12A of Schedule 3 to the Fuel Tax Transitional Act.

The entity elected before 31 December 2006, in the approved form, to receive early payments under Item 12A of Schedule 3 to the Fuel Tax Transitional Act.

The entity was not registered under section 9 of the Product Grants and Benefits Administration Act 2000 (PGBAA) for entitlement to energy grants under the Energy Grants (Credits) Scheme Act 2003 (Energy Grants Act) at the time they made the election to receive early payments.

The entity registered under section 9 of the PGBAA for entitlement to energy grants after 31 December 2006 (that is, after making an election to receive early payments).

The entity had purchased a quantity of on-road diesel fuel between 1 July 2003 and 30 June 2006.

The entity is entitled to an on-road credit for this quantity of on-road diesel fuel under the Energy Grants Act.

The entity claimed an energy grant in relation to this credit under section 15 of the PGBAA after making the election to receive early payments.

The entity subsequently claims an early payment in relation to taxable fuel it acquired between 1 July 2006 and 30 June 2008 for which it is entitled to a fuel tax credit under section 41-5 of the Fuel Tax Act 2006 (FTA).

Item 12A of Schedule 3 to the Fuel Tax Transitional Act provides for the early payment of fuel tax credits to eligible entities, in relation to taxable fuel acquired, manufactured or imported between 1 July 2006 and 30 June 2008.

Subitem 12A(1) requires the Commissioner to make an early payment of a fuel tax credit to entities that meet specific requirements.

One condition, in paragraph 12A(1)(a) of the Fuel Tax Transitional Act, provides that in order for the Commissioner to make an early payment of a fuel tax credit to an entity, the entity must elect, in the approved form, to receive early payments. The only conditions attached to this election are that it must be made before 31 December 2006 and that it must be made in the approved form. Therefore an election may be made regardless of whether the entity has ever been entitled to receive energy grants.

Another condition, set out in subparagraph 12A(1)(c)(i) of the Fuel Tax Transitional Act requires an entity to have had an entitlement to an energy grant under the Energy Grants Act. If an entity fails this condition, an early payment may still be payable if they meet the requirement set out in subparagraph 12A(1)(c)((ii) of the Fuel Tax Transitional Act but this is not relevant to this entity.

Section 41 of the Energy Grants Act provides that an entity is not entitled to an on-road credit unless it is registered for the energy grants credits scheme under the PGBAA when it makes a claim for payment for an energy grant in relation to the credit. Additionally, section 15 of the PGBAA provides that an entity is not entitled to an energy grant unless it makes a claim for payment of the grant.

As the requirements in subitem 12A(1) of the Fuel Tax Transitional Act must be satisfied in order for the Commissioner to make an early payment of a fuel tax credit, it follows that the entity only needs to establish that it was entitled to an energy grant when it submits a claim for early payment.

In this case, as the entity was registered for the energy grants credits scheme and had made a valid claim for payment of an energy grant prior to making a claim for an early payment, it will be able to satisfy the requirement that it was entitled to an energy grant under the Energy Grants Act when it made a claim for the early payment. There is no requirement for the entity to have been registered for energy grants at the time it elected, in the approved form, to receive early payments under Item 12A of the Fuel Tax Transitional Act. Note: The entity must satisfy the other relevant requirements of Item 12A of Schedule 3 to the Fuel Tax Transitional Act to receive an early payment.