Fuel Tax Act and rate of road user charge applied to taxable fuel acquired prior to 1 January 2009

For the purposes of subsection 43-10(6) of the Fuel Tax Act 2006 what is the amount of the road user charge (RUC) to apply to a fuel tax credit for taxable fuel acquired prior to 1 January 2009 but attributable to a tax period commencing after 1 January 2009?

For taxable fuel acquired prior to 1 January 2009 the RUC is $0.19633, as determined under the Road User Charge Determination 2006 (No. 1), regardless of the tax period to which it is attributable.

An entity acquired taxable fuel prior to 1 January 2009.

The entity is registered for goods as service tax (GST).

The entity was entitled to a fuel tax credit for the fuel.

The fuel tax credit was to be reduced by the RUC.

The fuel tax credit is attributable to a tax period commencing after 1 January 2009.

All legislative references are to the Fuel Tax Act unless otherwise stipulated.

Subsection 43-10(3) specifies that the amount of fuel tax credit for fuel acquired, manufactured or imported into Australia is, in certain circumstances, reduced by the RUC for the fuel.

Subsection 43-10(6) specifies that, for an entity which is registered for GST, the amount by which a fuel tax credit is reduced by the RUC is worked out by reference to the rate in force at the beginning of the tax period to which the fuel tax credit is attributable.

Subsection 43-10(7) provides for how the amount of the RUC is worked out. It is either 21 cents per litre of fuel or an amount determined by the Transport Minister. However subsection 43-10(7) was inserted into the Fuel Tax Act by amendments contained in Schedule 3 to the Road Charges Legislation Repeal and Amendment Act 2008 (RCLRA Act) and item 9 of Schedule 3 of the RCLRA Act states: The amendments made by this Schedule apply to taxable fuel acquired or manufactured in, or imported into, Australia on or after 1 January 2009.

Therefore subsection 43-10(7) does not apply to fuel acquired before 1 January 2009.

Hence, when working out the amount of fuel tax credit for taxable fuel acquired prior to 1 January 2009, reference must be made to the Fuel Tax Act as it stood prior to 1 January 2009. Relevantly subsection 43-10(3) stated: To the extent that you acquire, manufacture or import taxable fuel to use, in a vehicle, for travelling on a public road, the *amount of your fuel tax credit for the fuel is reduced by the amount of the road user charge, determined by the *Transport Minister. * Denotes a term defined in section 110-5 of the Fuel Tax Act 2006

For the purposes of subsection 43-10(3) the Transport Minister made Road User Charge Determination 2006 (No. 1). The rate of RUC specified in Road User Charge Determination 2006 (No. 1) is $0.19633 per litre of fuel.

Subsection 43-10(6) of the Fuel Tax Act stipulates that the rate of RUC is that which was in force at the commencement of the tax period to which the fuel tax credit is attributable. As the amendments made by the RCLRA Act do not apply to taxable fuel acquired prior to 1 January 2009, the rate that is in force at the time of attribution of the fuel tax credit is that determined in the Road User Charge Determination 2006 (No. 1).

Therefore, the rate of RUC applied to taxable fuel acquired prior to 1 January 2009 is $0.19633, regardless of the tax period to which the fuel tax credit is attributable.