Asciano loses 'bizarre' fuel rebate case

Asciano loses bid to claim a rebate for fuel used in off-rail operations, despite claiming the restriction is "bizarre"

By Brad Gardner

Rail giant Asciano has lost its bid in the Federal Court to claim a rebate for fuel used in its off-rail operations, despite claiming the restriction is "bizarre".

The court struck down Asciano’s argument the off-roads provision in the Energy Grants (Credits) Scheme Act 2003 covers diesel purchases for any incidental use in rail transport.

The matter went before the court after the tax office argued the rebate can only be claimed for use in or on a rail vehicle.

Lawyers for Asciano argued the rebate should be extended, saying it does not make sense for on-rail equipment and off-rail equipment to be treated separately even though both are used to test a train’s brakes.

"Asciano submits to say that diesel fuel purchases in the first case, but not in the second, would be credit eligible is bizarre because the same activity in both cases is integral and incidental to the carrying on of Asciano’s rail transport business," Justice Gordon says.

Despite this, Gordon ruled in favour of the tax office in saying it is unfeasible to base rebate eligibility on issue-based scenarios like the one raised by Asciano.

Gordon says the decision to base eligibility on location creates a firm line that is easy to administer.

"The commissioner [of the tax office] would not be able to function effectively if faced with requests for rebates and credits that required application of fuzzy standards," Gordon says.

The court also dismissed Asciano’s argument a decision should be made in its favour because if the Act intended to confine the off-road credit rebate to on-rail use then parliament would have specified it.

Gordon ruled that parliament, when passing the law, had no intention of extending the credit scheme for off-rail activity "regardless of how integral, incidental or adjacent to rail transport".

"Credits are not (unless explicitly stated otherwise) available under the rail transport regime for off-rail activities," he says.

The case was originally dealt with in the Supreme Court, which found in favour of Asciano by ruling off-rail activities fell within the jurisdiction of the Act.

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