ATO Interpretative Decision

ATO ID 2004/114

Excise

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Issue

Can a section 61C of the Excise Act 1901 periodic settlement permission return be lodged and excise duty paid on the day after they are otherwise due, if a public holiday occurs on the due date?

Decision

Yes. A section 61C of the Excise Act periodic settlement permission return may be lodged and excise duty paid on the day after they are otherwise due, if a public holiday occurs for all of a State (or the Northern Territory or Australian Capital Territory) on the due date.

Facts

An entity (the main entity) owns various business entities that operate excise establishments in different states.

Each of the business entities has section 61C of the Excise Act periodic settlement permission for delivery without entry of excisable goods.

Each of the permissions allows for an accounting week starting on Monday and finishing on Sunday.

The main entity centrally coordinates, from their head office, administrative aspects for all of the entities including lodgement of periodic settlement permission returns and payment of duty on Mondays.

When a public holiday occurs on a Monday in the state of the head office, the main entity lodges all of the returns and makes payment of the duty on Tuesdays.

Reasons for Decision

A permission granted under section 61C of the Excise Act allows an entity to deliver excisable goods without first lodging an entry and paying the duty.

The permission granted under section 61C of the Excise Act contains the following relevant (standard) requirement:

... You must lodge your completed return by 4pm on the first working day following the accounting week in which you made your delivery. You must also make your payment by 4pm on the same day.

Payment of duty

Subsection 8AAZMB(1) of the Taxation Administration Act 1953 (TAA) provides that where a tax debt is payable on a day that is not a business day, the payment is due on the next business day. Business day is defined in subsection 8AAZMB(2) of the TAA as follows:

... business day means a day other than:

(a)

a Saturday or a Sunday; or

(b)

a day which is a public holiday for the whole of:

(i)

any State; or

(ii)

the Australian Capital Territory; or

(iii)

the Northern Territory.

A tax debt is defined in section 8AAZA of the TAA and generally means an amount due under a taxation law. Taxation law, for the purposes of section 8AAZA, is defined in subsection 2(1) of the TAA as:

...' taxation law' has the meaning given by the Income Tax Assessment Act 1997.

Subsection 955-1(1) of the Income Tax Assessment Act 1997 defines ' taxation law' to mean:

(a)

an Act of which the Commissioner has the general administration (including a part of an Act to the extent to which the Commissioner has the general administration of the Act); or

(b)

regulations under such an Act (including such a part of an Act); or

(c)

the Tax Agents Services Act 2009 or regulations made under that Act.

However, this meaning is modified by subsection 2(2) of the TAA which states:

Despite the definition of taxation law in subsection (1), an Excise Act (as defined in subsection 4(1) of the Excise Act 1901) is not a taxation law for the purposes of Part III of, and Subdivision 284-B in Schedule 1 to, this Act.

The general administration of the Excise Act rests with the CEO, which is defined in section 4 of that Act to be the Commissioner of Taxation. Therefore, the Excise Act falls within the meaning of a taxation law, except for the purposes of Part III (Prosecutions and Offences) and Subdivision 284-B (Penalties relating to false or misleading statements) in Schedule 1 to the TAA.

Payment of duty due under a periodic settlement permission is not made for the purposes of Part III or subdivision 284-B of Schedule 1 to the TAA. Therefore the payment of the duty is a tax debt for the purposes of section 8AAZMB of the TAA. Where a public holiday for all of a State (or the Northern Territory or Australian Capital Territory) falls on a Monday, the duty is due on the next business day.

Lodgement of returns

Section 388-52 in Schedule 1 of the TAA states:

Where an *approved form is required to be given to the Commissioner or to another entity by, or on, a day (the lodgment day ) that is not a *business day, the approved form may be given on the first business day after the lodgment day.

Subsection 3AA (2) of the TAA deals with interpreting expressions in Schedule 1. It states: 'An expression has the same meaning in Schedule 1 as in the Income Tax Assessment Act 1997 (ITAA 1997).'

The expressions 'approved form' and 'business day' are defined in subsection 995-1(1) of the ITAA 1997 as follows:

approved form has the meaning given by section 388-50 in Schedule 1 to the Taxation Administration Act 1953.

business day means a day other than:

(a)

a Saturday or a Sunday; or

(b)

a day which is a public holiday for the whole of:

(i)

any State; or

(ii)

the Australian Capital Territory; or

(iii)

the Northern Territory.

Section 388-50 in Schedule 1 to the TAA defines 'approved form' as follows:

A return, notice, statement, application or other document under a *taxation law is in the approved form if, and only if:

(a)

it is in the form approved in writing by the Commissioner for that kind of return, notice, statement, application or other document; and

(b)

it contains a declaration signed by a person or persons as the form requires (see section 388-75); and

(c)

it contains the information that the form requires, and any further information, statement or document as the Commissioner requires, whether in the form or otherwise; and

(d)

for a return, notice, statement, application or document that is required to be given to the Commissioner - it is given in the manner that the Commissioner requires (which may include *electronically).

Although a periodic settlement permission return is not an approved form under section 388-50 in Schedule 1 to the TAA, the Commissioner wants administrative practices to accord with the legislative framework. Section 7 of the Excise Act provides the CEO with the general administration of that Act. Allowing the periodic settlement permission return to be treated as an approved form is good administrative practice and aligns the day for lodgement of the return with the day for payment of the duty payable.

Conclusion

A periodic settlement permission return may be lodged and excise duty paid on the day after it is otherwise due, if a public holiday occurs for all of a State (or the Northern Territory or Australian Capital Territory) on the due date.

Legislative References:
Excise Act 1901
   section 4
   section 7
   section 61C

Related ATO Interpretative Decisions
ATO ID 2004/113

Keywords
Excise
Excise collections
Excise collections other
Licensing
Weekly settlement permission

Business Line:  Indirect Tax

Date of publication:  6 February 2004

ISSN: 1445-2782