ATO Interpretative Decision
ATO ID 2008/104 (Withdrawn)
Excise
Excise: whether the Duboisia hopwoodii plant, is a tobacco plantFOI status: may be released
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While the view expressed within the ATO ID is technically correct there are no licenced tobacco producers in Australia.This document has changed over time. View its history.
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Is the Duboisia hopwoodii plant a 'tobacco plant' for the purposes of section 28 of the Excise Act 1901?
Decision
No. Duboisia hopwoodii is not a 'tobacco plant' for the purposes of section 28 of the Excise Act.
Facts
The Duboisia hopwoodii is a species of the Duboisia genus which is of the solanaceae family.
The leaves of Duboisia hopwoodii contain nicotine.
The leaves can be dried and powdered and mixed with ash from a variety of different specially selected species. It is rolled up into balls and then chewed. In this form it is known as pituri.
Reasons for Decision
Part III of the Excise Act provides, among other things, controls over the production of and dealing in tobacco plant, seeds and leaf. Specifically the operation of section 28 of the Excise Act means that a person must hold a licence to produce tobacco seed, tobacco plant or tobacco leaf. Further, Part X of the Excise Act provides various offences relating to unlawful activities involving tobacco plant, seeds and leaf.
The Excise Act does not define what is tobacco plant, seed or leaf, however, subsection 4(1) defines 'excisable goods' as 'goods in respect of which excise duty is imposed by the Parliament, and includes goods the subject of an Excise Tariff or Excise Tariff alteration proposed in the Parliament'.
Section 5 of the Excise Tariff Act 1921 imposes excise duty on goods manufactured or produced in Australia that are specified in the Schedule to that Act. Item 5 of the Schedule includes 'tobacco, cigars, cigarettes and snuff'.
The meaning of tobacco in the Schedule to the Excise Tariff Act is 'tobacco leaf subjected to any process other than curing the leaf as stripped from the plant'. The definition mentions a leaf from a plant and the inference is from a tobacco plant however the definition does not specify which particular species of plant.
The Australian Oxford Dictionary, 2nd ed., 2004, Oxford University Press, Melbourne (Dictionary) defines tobacco as '1. a solanaceous plant of the genus Nicotiana, of American origin, with narcotic leaves used for smoking, chewing, or snuff. 2. its leaves, especially as prepared for smoking'.
The Dictionary further explains that:
Tobacco was originally used by some North American indigenous peoples as a narcotic drink, but by the time that Christopher Columbus (1451-1506) (see Nicotiana) arrived they were smoking it. They used it for ceremonial purposes and believed it to have medicinal properties, which was the main reason for taking it back to Europe. The diplomat Jean Nicot is said to have introduced it to France in 1556. Tobacco was originally smoked mainly in pipes and cigars; cigarettes did not become socially acceptable until the late 18th century. It is usually made from the leaves of common tobacco (Nicotiana tabacum) and sometimes from wild tobacco (N. rusticum); many varieties have been developed and a number of different additives and preparation techniques are used...
Hence, the ordinary meaning of the word 'tobacco' is a species of the Nicotiana genus of the solanaceae family, generally the N. tabacum and N. rusticum, the leaves of which are used for smoking, chewing or snuff.
Therefore, for the purposes of the Excise Act, 'tobacco' means a species of the genus Nicotiana, generally the N. tabacum and N. rusticum, the leaves of which are used for smoking, chewing or as snuff.
The Duboisia hopwoodii is a species of the Duboisia genus of the solanaceae family.
While both the Duboisia and Nicotiana are of the solanaceae family, and the leaves of some of the species of each genus have been used for chewing or smoking, the ordinary usage of the term 'tobacco' is a reference to a species of the Nicotiana genus. Generally, but not be limited to, the N. tabacum and N. rusticum species of the plants.
Therefore Duboisia hopwoodii plant is not a 'tobacco plant' for the purposes the Excise Act.
Date of decision: 24 April 2008
Legislative References:
Excise Act 1901
subsection 4(1)
section 28
Part III
Part X
section 5
the Schedule
Item 5 of the table in the Schedule Related ATO Interpretative Decisions
ATO ID 2009/118
Keywords
Tobacco leaf
Tobacco plant
Tobacco seed
ISSN: 1445-2782
| Date: | Version: | |
| 24 April 2008 | Original statement | |
| You are here | 17 January 2019 | Archived |