Issue
Can a person who was a member of a two person partnership make a claim for an energy grant under section 15 of the Product Grants and Benefits Administration Act 2000 (PGBAA) if the other partner has died and the ultimate residue of the partnership's estate has been distributed?
Decision
No. A person who was a member of a two person partnership cannot make a claim for an energy grant under section 15 of the Product Grants and Benefits Administration Act 2000 (PGBAA) if the other partner has died and the ultimate residue of the partnership's estate has been distributed.
Facts
A client was a partner in a two person partnership until the death of the other partner.
The partnership was registered for the purposes of the Energy Grants (Credits) Scheme.
The surviving partner wishes to make a claim for an energy grant for fuel which was purchased and used by the partnership in eligible activities.
All of the remaining assets of the partnership have been sold off, any liabilities have been paid out, the surviving partner and the trustee of the deceased partner's estate have received their final payments, the partnership is not owed any money, and all bank accounts have been closed.
Reasons for Decision
Under section 15 of the PGBAA 'you' may make a claim for an energy grant if you are registered for an energy grant. Such a claim must meet certain requirements, in particular 'you' must sign the claim.
In accordance with section 5 of the PGBAA 'you' applies to entities generally, unless its application is specifically limited.
Under subsection 51(1) of the PGBAA, a partnership is treated, for the purposes of that Act and the entitlement Acts as if it were a person.
The Partnership Act of each state and territory provides: Subject to any agreement between the partners, every partnership is dissolved as regards all of the partners by the death or bankruptcy of any partner upon the death of a partner.
and that: After the dissolution of a partnership the authority of each partner to bind the firm, and the other rights and obligations of the partners, continue, notwithstanding the dissolution, so far as may be necessary to wind up the affairs of the partnership, and to complete transactions begun but unfinished at the time of dissolution, but not otherwise...
The restriction on the partners' authority is for the purposes of winding up the affairs of the partnership and to complete transactions begun but unfinished. The partner may not begin new transactions in the exercise of their rights after dissolution of the partnership.
The dissolution of the partnership is taken to have occurred once the partnership's affairs have been finalised and the ultimate residue of the partnership's estate has been distributed.
In this instance, all of the remaining assets of the partnership have been sold off, any liabilities have been paid out, the surviving partner and the trustee of the deceased partner's estate have received their final payments, the partnership is not owed any money, and all bank accounts have been closed. Consequently, the ultimate residue of the partnership's estate has been distributed.
Therefore, the partnership is dissolved and no longer exists as a person or entity for the purposes of the PGBAA.
Accordingly, the surviving person cannot make a claim for fuel purchased and used by the partnership as there is no legal entity to make the claim or to sign the claim form.