An Act relating to the assessment and collection of the tax
imposed by the Fringe Benefits Tax Act 1986, and for related
purposes
Part I—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Fringe
Benefits Tax Assessment Act 1986.
2
Commencement [see
Note 1]
This Act shall come into operation on
the day on which it receives the Royal Assent.
2A
Application of the Criminal Code
Chapter 2 of the Criminal Code
applies to all offences against this Act.
Note: Chapter 2 of the Criminal Code sets out
the general principles of criminal responsibility.
Part II—Administration
3
General administration of Act
The Commissioner has the general
administration of this Act.
4
Annual report
(1) The Commissioner shall, as soon as
practicable after 30 June in each year, prepare and furnish to the
Minister a report on the working of this Act, including any breaches or
evasions of this Act of which the Commissioner has notice.
(2) The Minister shall cause a copy of a
report furnished under subsection (1) to be laid before each House of the
Parliament within 15 sitting days of that House after the day on which the
Minister receives the report.
(3) For the purposes of section 34C of
the Acts Interpretation Act 1901, a report that is required by subsection (1)
to be furnished as soon as practicable after 30 June in a year shall be
taken to be a periodic report relating to the working of this Act during the
year ending on that 30 June.
5
Secrecy
(1) In this section, officer
means a person:
(a) who is or has been appointed or
employed by the Commonwealth; or
(b) to whom powers or functions have
been delegated by the Commissioner;
and who, by reason of the appointment or employment or in
the course of the employment, or by reason of, or in the course of the exercise
of powers or the performance of functions under, the delegation, as the case
may be, may acquire or has acquired information with respect to the affairs of
any other person disclosed or obtained under or for the purposes of this Act.
(2) For the purposes of this section, a
person who, although not appointed or employed by the Commonwealth, performs
services for the Commonwealth shall be taken to be employed by the
Commonwealth.
(3) Subject to subsection (5), a person
who is or has been an officer shall not directly or indirectly:
(a) make a record of any information
with respect to the affairs of a second person; or
(b) divulge or communicate to a second
person any information with respect to the affairs of a third person;
being information disclosed or obtained under or for the
purposes of this Act and acquired by the person by reason of the person’s
appointment or employment by the Commonwealth or in the course of such
employment, or by reason of the delegation to the person of powers or functions
by the Commissioner, or in the course of the exercise of such powers or
performance of such functions, as the case may be.
Penalty: $10,000 or imprisonment for 2 years, or both.
(3A) Subsection (3) does not apply to the
extent that the person makes the record of the information, or divulges or
communicates the information, for the purposes of this Act or in the
performance of the person’s duties as an officer.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (3A), see subsection 13.3(3) of the Criminal
Code.
(4) Except where it is necessary to do so for
the purpose of carrying into effect the provisions of this Act, a person who is
or has been an officer shall not be required:
(a) to produce in court any document
made or given under or for the purposes of this Act; or
(b) to divulge or communicate to a
court a matter or thing with respect to information disclosed or obtained under
or for the purposes of this Act;
being a document or information acquired by the person by
reason of the person’s appointment or employment by the Commonwealth or in the
course of such employment, or by reason of the delegation to the person of
powers or functions by the Commissioner, or in the course of the exercise of
such powers or the performance of such functions, as the case may be.
(5) Nothing in subsection (3) shall be
taken to prohibit the Commissioner, a Deputy Commissioner or a person
authorised by the Commissioner or a Deputy Commissioner from communicating any
information to:
(a) the Tribunal in connection with
proceedings under an Act of which the Commissioner has the general
administration; or
(b) a person performing, as an
officer, duties arising under an Act of which the Commissioner has the general
administration, or regulations under such an Act, for the purpose of enabling
the person to perform those duties; or
(c) the Secretary of the Department
dealing with matters relating to the social security law (within the meaning of
the Social Security Act 1991), for the purpose of the administration of
that law; or
(d) the Chief Executive Officer of the
Commonwealth Services Delivery Agency established by the Commonwealth
Services Delivery Agency Act 1997, for the purpose of the administration of
the social security law (within the meaning of the Social Security Act 1991).
(6) For the purposes of subsection (3),
an officer shall be deemed to have communicated information to another person
in contravention of that subsection if the officer communicates the information
to any Minister.
(7) An officer shall, if and when required by
the Commissioner or a Deputy Commissioner to do so, make an oath or
declaration, in a manner and form specified by the Commissioner in writing, to
maintain secrecy in conformity with the provisions of this section.
Part IIA—Core provisions
Division 1—Working out an employer’s fringe benefits taxable amount
5A
Simplified outline of this Division
The following is a simplified outline of
this Division:
This Division explains how to work out
an employer’s fringe benefits taxable amount for a year of tax. This is the
amount on which the employer must pay fringe benefits tax (see section 66).
5B
Working out an employer’s fringe benefits taxable amount
Years of tax before year of tax 2000‑2001
(1) An employer’s fringe benefits
taxable amount for a year of tax earlier than the year of tax beginning
on 1 April 2000 is the amount worked out using the formula:
Note: Other provisions affect the fringe benefits
taxable amount. For example, see section 124 (about assessments).
Year of tax 2000‑2001 and later years
(1A) Subject to subsection (1D), an employer’s
fringe benefits taxable amount for the year of tax beginning on 1 April
2000 or a later year of tax is the sum of the subsection (1B) amount and
the subsection (1C) amount.
Note: Other provisions affect the fringe benefits
taxable amount. For example, see section 124 (about assessments).
Subsection (1B) amount
(1B) The subsection (1B)
amount is the amount worked out using the formula:
Subsection (1C) amount
(1C) The subsection (1C) amount
is the amount worked out using the formula:
Increase in fringe benefits taxable amount for year of
tax 2000‑2001 and later years
(1D) If any benefits provided in respect of the
employment of an employee of an employer are exempt benefits under section 57A,
the employer’s fringe benefits taxable amount for the year of tax
beginning on 1 April 2000 or a later year of tax as worked out under subsection (1A)
is increased by the employer’s aggregate non‑exempt amount for the year
of tax concerned.
How to work out aggregate non‑exempt amount
(1E) An employer’s aggregate non‑exempt
amount for the year of tax is worked out as follows.
Method
statement
Step 1. For
each employee, add:
(a) the
individual grossed‑up type 1 non‑exempt amount (see subsection (1F))
in relation to the employer for the year of tax; and
(b) the
individual grossed‑up type 2 non‑exempt amount (see subsection (1G))
in relation to the employer for the year of tax.
The result is the individual
grossed‑up non‑exempt amount for the employee.
Step 2. If:
(b) the employer
is a government body and the duties of the employment of one or more employees
are as described in paragraph 57A(2)(b) (which is about duties of employment
being exclusively performed in or in connection with certain hospitals); or
(c) the employer
is a public hospital; or
(ca) the employer
provides public ambulance services or services that support those services and
the employee is predominantly involved in connection with the provision of
those services; or
(d) the employer
is a hospital described in subsection 57A(4) (which is about hospitals carried
on by non‑profit societies and associations);
subtract
$17,000 from the individual grossed‑up non‑exempt amount for each
employee of the employer referred to in paragraph (c), (ca) or (d), or
each employee referred to in paragraph (b), for the year of tax. However,
if the individual grossed‑up non‑exempt amount for such an employee
is equal to or less than $17,000, the amount calculated under this step for the
employee is nil.
Step 3. If step 2 does not
apply in respect of one or more employees of the employer:
(a) reduce the
individual grossed‑up non‑exempt amount for each such employee for
the year of tax beginning on 1 April 2000 to zero; and
(b) reduce the
individual grossed‑up non‑exempt amount for each such employee for
a later year of tax by $30,000, but not below zero.
Step 4. Add together the
amounts calculated under steps 2 and 3 in relation to the employees of the
employer. The total amount is the employer’s aggregate non‑exempt
amount for the year of tax.
Individual grossed‑up type 1 non‑exempt
amount
(1F) For the purposes of step 1 in the method
statement in subsection (1E), the individual grossed‑up type 1
non‑exempt amount of an employee in relation to the employer for
the year of tax is:
Individual grossed‑up type 2 non‑exempt
amount
(1G) For the purposes of step 1 in the method
statement in subsection (1E), the individual grossed‑up type 2
non‑exempt amount of an employee in relation to the employer for
the year of tax is:
Working out the type 1 individual base non‑exempt
amount
(1H) An employee’s type 1 individual base
non‑exempt amount in relation to the employer for the year of tax
is worked out by adding the amounts worked out under step 3 of the method
statement in subsection (1K) and step 3 of the method statement in subsection (1L).
Working out the type 2 individual base non‑exempt
amount
(1J) An employee’s type 2 individual base
non‑exempt amount in relation to the employer for the year of tax
is worked out by adding the amounts worked out under step 4 of the method
statement in subsection (1K) and step 4 of the method statement in subsection (1L).
Working out the subsection (1K) amounts
(1K) An employee’s subsection (1K) amounts
for the year of tax are worked out as follows.
Method statement
Step 1. Work out under
subsection 135Q(3) for each of the employer’s employees the amount that would
be the employee’s individual fringe benefit amount for the year of tax in
respect of the employee’s employment by the employer if subsection 135Q(1) were
amended:
(a) by omitting
“or 58”; and
(b) by omitting
“one of those sections” from paragraph (b) and “those sections” from paragraph (c)
and substituting in each case “that section”.
Step 2. Identify the benefits
taken into account in step 1 that are GST‑creditable benefits (see
section 149A).
Step 3. So much of the amount
worked out under step 1 that relates to the benefits identified under step 2 is
the step 3 of subsection (1K) amount for the individual.
Step 4. The remainder of the
amount is the step 4 of subsection (1K) amount for the
individual.
Working out the subsection (1L) amounts
(1L) An employee’s subsection (1L) amounts
for the year of tax are worked out as follows.
Method statement
Step 1. Work out for each
employee his or her share (if any) of the amounts that, if section 57A did
not apply, would be the taxable values of the excluded fringe benefits for the
year of tax in respect of the employee’s employment by the employer if those
benefits were not excluded fringe benefits, but disregarding benefits:
(a) that
constitute the provision of meal entertainment as defined in section 37AD
(whether or not the employer made an election under section 37AA); or
(b) that are car
parking fringe benefits; or
(c) whose
taxable values are wholly or partly attributable to entertainment facility
leasing expenses.
Step 2. Identify the benefits
taken into account in step 1 that are GST‑creditable benefits (see
section 149A).
Step 3. So much of the amount
worked out under step 1 that relates to the benefits identified under step 2 is
the step 3 of subsection (1L) amount for the individual.
Step 4. The remainder of the
amount is the step 4 of subsection (1L) amount for the
individual.
Using aggregate fringe benefits amount for most recent
base year
(2) This section is subject to section 135G.
Note: Section 135G allows the fringe benefits
taxable amount to be worked out using the employer’s aggregate fringe benefits
amount from an earlier year of tax in special cases.
Definitions
(3) In this section:
FBT rate means the rate of fringe benefits
tax for the year of tax.
GST rate means the rate of goods and services
tax payable under the A New Tax System (Goods and Services Tax) Act 1999
for the year of tax.
type 1 aggregate fringe benefits amount means
the employer’s type 1 aggregate fringe benefits amount for the year of tax
worked out under subsection 5C(3).
type 2 aggregate fringe benefits amount means
the employer’s type 2 aggregate fringe benefits amount for the year of tax
worked out under subsection 5C(4).
Division 2—Working out an employer’s aggregate fringe benefits amount
5C
Aggregate fringe benefits amount
(1) Work out an employer’s aggregate
fringe benefits amount for a year of tax earlier than the year of tax
beginning on 1 April 2000 as follows:
Method statement
Step 1. Work out under Division 3
for each of the employer’s employees the individual fringe benefits amount for
the year of tax in respect of the employment of the employee by the employer.
Step 2. Add up all the
individual fringe benefits amounts worked out under Step 1.
Step 3. Add up the taxable
value of every excluded fringe benefit (other than an amortised fringe benefit)
relating to an employee of the employer, the employer and the year of tax.
Note: Subsection
5E(3) explains what is an excluded fringe benefit.
Step 4. Add the total from Step
2 to the total from Step 3.
Note: The
result of Step 4 is the employer’s aggregate fringe benefits amount if there
are no amortised fringe benefits or reducible fringe benefits in relation to
the employer.
Step 5. Add to the total from
Step 4 the amortised amount for the year of tax of each amortised fringe
benefit (if any) relating to an employee of the employer, the employer and any
year of tax.
Step 6. Subtract
from the total from Step 5 the reduction amount for the year of tax of each
reducible fringe benefit (if any) relating to an employee of the employer, the
employer and the year of tax.
(2) An employer’s aggregate fringe
benefits amount for the year of tax beginning on 1 April 2000 or a later year of tax is the sum of the employer’s type 1 aggregate fringe
benefits amount and the employer’s type 2 aggregate fringe benefits amount for
the year of tax.
(3) Work out an employer’s type 1
aggregate fringe benefits amount for a year of tax as follows.
Method statement
Step 1. Identify the fringe
benefits in respect of each of the employer’s employees that are GST‑creditable
benefits (see section 149A), and work out under Division 3 for each
of those employees the individual fringe benefits amount for the year of tax in
relation to those fringe benefits.
Step 2. Add up all the
individual fringe benefits amounts worked out under step 1.
Step 3. Identify the excluded
fringe benefits (other than an amortised fringe benefit) for the year of tax in
respect of each of the employer’s employees that are GST‑creditable
benefits, and add up the taxable values of all those excluded fringe benefits.
Note 1: Subsection
5E(3) explains what is an excluded fringe benefit.
Note 2: Section 149A
explains what is a GST‑creditable benefit.
Step 4. Add the total from step
2 to the total from step 3.
Note: The
result of step 4 is the employer’s type 1 aggregate fringe benefits amount if
there are no amortised amounts in relation to the employer.
Step 5. Add to the total from
step 4 the amortised amount for the year of tax of each amortised fringe
benefit (if any) relating to an employee of the employer, the employer and any
year of tax that are GST‑creditable benefits. The total amount is the
employer’s type 1 aggregate fringe benefits amount for the year
of tax.
Note: Section 65CA
explains what is an amortised fringe benefit.
(4) Work out
an employer’s type 2 aggregate fringe benefits amount for a year
of tax as follows.
Method
statement
Step 1. Identify,
in respect of each of the employer’s employees, the fringe benefits that are
not taken into account under step 1 of the method statement in subsection (3),
and work out under Division 3 for each of those employees the individual
fringe benefits amount for the year of tax in relation to those fringe
benefits.
Step 2. Add up all the
individual fringe benefits amounts worked out under step 1.
Step 3. Identify, in respect of
each of the employer’s employees, the excluded fringe benefits (other than an
amortised fringe benefit) for the year of tax that are not taken into account
under step 3 of the method statement in subsection (3), and add up the
taxable values of all those excluded fringe benefits.
Note: Subsection
5E(3) explains what is an excluded fringe benefit.
Step 4. Add the total from step
2 to the total from step 3.
Note: The
result of step 4 is the employer’s type 2 aggregate fringe benefits amount if
there are no amortised amounts or reducible fringe benefits in relation to the
employer.
Step 5. Add
to the total from step 4 the amortised amount for the year of tax of each
amortised fringe benefit (if any) relating to an employee of the employer, the
employer and any year of tax that is not taken into account under step 5 of the
method statement in subsection (3).
Note 1: The
result of step 5 is the employer’s type 2 aggregate fringe benefits amount if
there are no reducible fringe benefits in relation to the employer.
Note 2: Section 65CA
explains what is an amortised fringe benefit.
Step 6. Subtract from the total
from step 5 the reduction amount for the year of tax of each reducible fringe
benefit (if any) relating to an employee of the employer, the employer and the
year of tax. The total amount is the employer’s type 2 aggregate fringe
benefits amount for the year of tax.
Note: Other provisions may affect the aggregate
fringe benefits amount. For example, see section 67 (about arrangements to
avoid or reduce tax), section 135L (about reducing the aggregate fringe
benefits amount of an employer who is in business for only part of a year of
tax) and section 152B (about entertainment facility leasing expenses).
Division 3—Employee’s individual fringe benefits amount
5D
Simplified outline
The following is a simplified outline of
this Division:
An employee’s individual fringe
benefits amount is the employee’s share of the taxable value of fringe benefits
(with some exclusions) provided in respect of his or her employment.
5E
Employee’s individual fringe benefits amount
Overview
(1) This section explains how to work out an
employee’s individual fringe benefits amount for a year of tax in
respect of the employee’s employment by an employer.
General rule
(2) The individual fringe benefits
amount is the sum of the employee’s share of the taxable value of each
fringe benefit that relates to the year of tax and is provided in respect of
the employment other than an excluded fringe benefit.
What is an excluded fringe benefit?
(3) An excluded fringe benefit
is a fringe benefit:
(a) constituted by the provision of
meal entertainment (as defined in section 37AD, whether or not the
employer has elected that Division 9A of Part III apply to the
employer); or
(b) that is a car parking fringe
benefit (see subsection 136(1)); or
(c) whose taxable value is wholly or
partly attributable to entertainment facility leasing expenses; or
(e) whose taxable value is worked out
under section 59 (about remote area residential fuel); or
(f) whose taxable value is reduced
under section 60 (about remote area housing); or
(g) that is an amortised fringe
benefit (see subsection 136(1)); or
(h) that is a reducible fringe benefit
(see subsection 136(1)); or
(i) that is a benefit prescribed by
the regulations for the purposes of this paragraph; or
(j) that relates to occasional travel
to a major population centre in Australia provided to employees and family
members resident in a location that is not in or adjacent to an eligible urban
area; or
(k) that relates to freight costs for
foodstuffs provided to employees resident in a location that is not in or
adjacent to an eligible urban area; or
(l) that is provided to address a
security concern:
(i) relating to the
personal safety of an employee, or an associate of an employee; and
(ii) that arises in respect
of the employee’s employment.
If section 135G applies to the employer
(4) If:
(a) section 135G applies for
working out the employer’s liability to pay tax for the year of tax; and
(b) one or more fringe benefits are
provided in relation to the year of tax in respect of the employee’s employment
by the employer;
the employee’s individual fringe benefits amount
is the amount determined by the employer in writing. This subsection has effect
despite subsection (2).
Note: Section 135G allows use of the employer’s
aggregate fringe benefits amount for an earlier year of tax in working out the
employer’s liability for tax for the current year of tax.
Determining individual fringe benefits amounts
(5) In making a determination under subsection (4),
the employer must:
(a) ensure that the total of the amount
or amounts determined by the employer under that subsection for the year of tax
equals the aggregate fringe benefits amount used for working out the employer’s
liability to pay tax for the year of tax; and
(b) if that subsection applies to 2 or
more of the employer’s employees for the year of tax—act reasonably, having
regard to the fringe benefit or fringe benefits provided in relation to the
year of tax in respect of each employee’s employment.
Security concerns relating to employees or associates
(6) A fringe benefit referred to in
paragraph (3)(l) is an excluded fringe benefit only to the
extent that its provision is consistent with a threat assessment in relation to
the employee or associate made by a person who is recognised by:
(a) a relevant industry body or
government body; or
(b) the Commissioner;
as competent to make threat assessments.
5F
Working out the employee’s share
Overview
(1) This section explains how to work out an employee’s
share of the taxable value of a fringe benefit relating to the
employee, an employer and a year of tax.
Individually‑valued benefit provided in respect
of one employee
(2) The employee’s share is 100%
of the taxable value if:
(a) the fringe benefit was provided in
respect of the employment of the employee by the employer and was not provided
in respect of the employment of anyone else; and
(b) the taxable value of the fringe
benefit was worked out for that particular fringe benefit (not merely as part
of the total taxable value of fringe benefits in a class including that
particular benefit).
Individually‑valued benefit shared by 2 or more
employees
(3) The employee’s share is so
much of the taxable value as is reasonably attributable to the provision of the
fringe benefit in respect of the employee’s employment by the employer, taking
account of any relevant matters, if:
(a) the fringe benefit was provided in
respect of the employment of the employee by the employer and in respect of the
employment of another employee; and
(b) the taxable value of the fringe
benefit was worked out for that particular fringe benefit (not merely as part
of the total taxable value of fringe benefits in a class including that
particular benefit).
Benefits valued in aggregate
(4) If:
(a) the fringe benefit is one of a
class of fringe benefits provided in respect of the employment of one or more
employees by the employer; and
(b) the total taxable value of all the
fringe benefits in the class is worked out by a single calculation;
the employee’s share of the taxable value of
the fringe benefit is so much of the total taxable value as is reasonably
attributable to the provision of the fringe benefit in respect of the
employee’s employment by the employer, taking account of any relevant matters.
Shares of different employees must total 100% of
taxable value
(5) If:
(a) the fringe benefit was provided in
respect of the employment of 2 or more employees; and
(b) each of those employees has an
employee’s share of the taxable value of the fringe benefit;
the sum of those shares must equal the taxable value of
the fringe benefit.
Single employee’s shares must equal total taxable value
(6) If all the fringe benefits in a class
described in subsection (4) are provided in respect of the employment of
the same employee (and none of them is provided in respect of the employment of
anyone else), the sum of the employee’s shares of the taxable value of the
fringe benefits must equal the total taxable value of the fringe benefits.
Part III—Fringe benefits
Division 1—Preliminary
6 Part
not to limit generality of benefit
The provisions of this Part do not limit
the generality of the expression benefit.
Division 2—Car fringe benefits
Subdivision A—Car benefits
7 Car
benefits
(1) Where:
(a) at any time on a day, in respect
of the employment of an employee, a car held by a person (in this subsection
referred to as the provider):
(i) is applied to a
private use by the employee or an associate of the employee; or
(ii) is taken to be
available for the private use of the employee or an associate of the employee;
and
(b) either of the following conditions
is satisfied:
(i) the provider is the
employer, or an associate of the employer, of the employee;
(ii) the car is so applied
or available, as the case may be, under an arrangement between:
(A) the
provider or another person; and
(B) the
employer, or an associate of the employer, of the employee;
that application or availability of the car shall be taken
to constitute a benefit provided on that day by the provider to the employee or
associate in respect of the employment of the employee.
(2) Where, at a particular time, the
following conditions are satisfied in relation to an employee of an employer:
(a) a car is held by a person, being:
(i) the employer;
(ii) an associate of the employer;
or
(iii) a person (other than
the employer or an associate of the employer) with whom, or in respect of whom,
the employer or an associate of the employer has an arrangement relating to the
use or availability of the car;
(b) the car is garaged or kept at or
near a place of residence of the employee or of an associate of the employee;
the car shall be taken, for the purposes of this Act, to
be available at that time for the private use of the employee or associate, as
the case may be.
(2A) Subsection (2) does not apply to a car
that:
(a) is used by an ambulance service, a
firefighting service or a police service; and
(b) is visibly marked on its exterior
for that use; and
(c) is fitted with:
(i) a flashing warning
light; and
(ii) a horn, bell or alarm
that can give audible warning of the approach or position of the car by making
sounds with different amplitude, tones or frequencies on a regular time cycle.
(3) Where, at a particular time, the
following conditions are satisfied in relation to an employee of an employer:
(a) a car is held by a person, being:
(i) the employer;
(ii) an associate of the
employer; or
(iii) a person (other than
the employer or an associate of the employer) with whom, or in respect of whom,
the employer or an associate of the employer has an arrangement relating to the
use or availability of the car;
(b) the car is not at business
premises of:
(i) the employer;
(ii) an associate of the
employer; or
(iii) a person (other than
the employer or an associate of the employer) with whom, or in respect of whom,
the employer or an associate of the employer has an arrangement relating to the
use or availability of the car;
(c) any of the following conditions is
satisfied:
(i) the employee is
entitled to apply the car to a private use;
(ii) the employee is not
performing the duties of his or her employment and has custody or control of
the car;
(iii) an associate of the
employee is entitled to use, or has custody or control of, the car;
the car shall be taken, for the purposes of this Act, to
be available at that time for the private use of the employee or associate, as
the case may be.
(4) For the purposes of subsection (3),
where a prohibition on the application of a car, or on the application of a car
for a private use, by a person is not consistently enforced, the person shall
be deemed to be entitled to use the car, or to apply the car to a private use,
notwithstanding the prohibition.
(5) For the purposes of this Act, a car shall
be deemed to be applied by a person if it is applied in accordance with the
directions, instructions or wishes of the person.
(6) For the purposes of this Division, a car
that is let on hire to a person under a hire‑purchase agreement shall be
deemed:
(a) to have been purchased by the person
at the time when the person first took the car on hire; and
(b) to have been owned by the person
at all material times.
(7) A reference in this Division to a car
held by a person (in this subsection referred to as the provider)
does not include a reference to:
(a) a taxi let on hire to the
provider; or
(b) a car let on hire to the provider
under an agreement of a kind ordinarily entered into by persons taking cars on
hire intermittently as occasion requires on an hourly, daily, weekly or other
short‑term basis unless the car has been or may reasonably be expected to
be on hire under successive agreements of a kind that result in substantial
continuity of the hiring of the car.
8
Exempt car benefits
(1) Except insofar as section 7 provides
that the application or availability of a car held by a person is a benefit,
the application or availability of a car held by a person is an exempt benefit.
(2) A car benefit provided in a year of tax
in respect of the employment of a current employee is an exempt benefit in
relation to the year of tax if:
(a) the car is:
(i) a taxi, panel van or
utility truck, designed to carry a load of less than 1 tonne; or
(ii) any other road vehicle
designed to carry a load of less than 1 tonne (other than a vehicle designed
for the principal purpose of carrying passengers); and
(b) there was no private use of the
car during the year of tax and at a time when the benefit was provided other
than:
(i) work‑related
travel of the employee; and
(ii) other private use by
the employee or an associate of the employee, being other use that was minor,
infrequent and irregular.
(3) Where:
(a) a car benefit relating to a
particular car is provided by a particular person (in this subsection called
the provider) in a year of tax in respect of the employment of a
current employee of an employer;
(b) at all times during the year of
tax when the car was held by the provider, the car was unregistered; and
(c) during the period in the year of
tax when the car was held by the provider, the car was wholly or principally
used directly in connection with business operations of:
(i) the employer; or
(ii) if the employer is a
company—the employer or a company that is related to the employer;
the car benefit is an exempt benefit in relation to the
year of tax.
(4) A car benefit is an exempt benefit in
relation to a year of tax if:
(a) the car benefit is provided in the
year of tax in respect of the employment of a current employee; and
(b) the person providing the benefit
cannot deduct an amount under the Income
Tax Assessment Act 1997 for providing the benefit because of section 86‑60
of that Act.
Note: Section 86‑60 of the Income Tax
Assessment Act 1997 (read together with section 86‑70 of that
Act) limits the extent to which personal service entities can deduct car
expenses. Deductions are not allowed for more than one car for private use.
Subdivision B—Taxable value of car fringe benefits
9
Taxable value of car fringe benefits—statutory formula
(1) Subject to this Part, where one or more
car fringe benefits in relation to an employer in relation to a year of tax
relate to a particular car held by a particular person (in this section
referred to as the provider), the taxable value of that fringe
benefit, or the aggregate of the taxable values of those fringe benefits, as
the case may be, in relation to that year of tax, is the amount calculated in
accordance with the formula:
where:
A is the base value of the car;
B is the statutory fraction;
C is the number of days during that year of tax
on which the car fringe benefits were provided by the provider;
D is the number of days in that year of tax;
and
E is the amount (if any) of the recipient’s
payment.
(2) For the purposes of this section:
(a) the base value of the car is the
sum of:
(i) where, at the earliest
holding time, the car was owned by the provider or an associate of the
provider, the amount calculated in accordance with the formula AB, where:
A is the cost
price of the car to the provider or associate, as the case may be; and
B is:
(A) in a
case where the commencement of the year of tax is later than the fourth
anniversary of the earliest holding time—
;
or
(B) in any
other case—1;
(ii) in a case to which subparagraph (i)
does not apply—the amount calculated in accordance with the formula AB, where:
A is the leased
car value of the car at the earliest holding time; and
B is:
(A) in a
case where the commencement of the year of tax is later than the fourth
anniversary of the earliest holding time—;
or
(B) in any
other case—1; and
(iii) the cost price of each
non‑business accessory that:
(A) was
fitted to the car after the earliest holding time and before the end of the
year of tax; and
(B) remained
fitted to the car at a time during the year of tax when the car was held by the
provider;
(b) the earliest holding time, in
relation to a car held by the provider at a particular time (in this paragraph
referred to as the current time), is the earliest time before the
current time when the car was held by the provider or an associate of the
provider;
(c) the statutory fraction is:
(i) if the annualised
number of whole kilometres the car travelled during the year of tax was more
than 40,000—0.07; or
(ii) if the annualised number
of whole kilometres the car travelled during the year of tax was not less than
25,000 and not more than 40,000—0.11; or
(iii) if the annualised
number of whole kilometres the car travelled during the year of tax was not
less than 15,000 and not more than 24,999—0.20; or
(iv) in any other case—0.26;
(d) the
annualised number of whole kilometres travelled by the car during the year of
tax is the number calculated in accordance with the formula:
where:
A is the number of
whole kilometres travelled by the car during the period in the year of tax when
the car was held by the provider (in this subsection referred to as the holding
period);
B is the number of
days in the year of tax; and
C is the number of
days in the holding period; and
(e) the amount of the recipient’s
payment is the sum of:
(i) in a case where
expenses were incurred to the provider or employer during the holding period by
recipients of the car fringe benefits by way of consideration for the provision
of the car fringe benefits—the amount of those expenses paid by the recipients
less any amount paid or payable to the recipients by way of reimbursement of
those expenses;
(ia) in a case where car
expenses in respect of fuel or oil for the car were incurred during the holding
period by recipients of the car fringe benefits and:
(A) the
persons incurring those expenses give to the employer, before the declaration
date, declarations, in a form approved by the Commissioner, in respect of those
expenses; or
(B) documentary
evidence of those expenses is obtained by the persons incurring the expenses
and given to the employer before the declaration date;
the amount of those
expenses paid by the recipients less any amount paid or payable to the
recipients by way of reimbursement of those expenses; and
(ii) in a case where:
(A) car
expenses in respect of the car (other than car expenses in respect of fuel or
oil for the car) were incurred during the holding period by recipients of the
car fringe benefits; and
(B) documentary
evidence of those expenses is obtained by the persons incurring the expenses
and given to the employer before the declaration date;
the amount of those
expenses paid by the recipients less any amount paid or payable to the
recipients by way of reimbursement of those expenses.
10
Taxable value of car fringe benefits—cost basis
(1) An employer may, in relation to a
particular car, elect that this section apply in relation to all the car fringe
benefits in relation to the employer in relation to a year of tax that relate
to that car.
(2) Subject to this Part, where an election
is made under subsection (1), the taxable value, or the aggregate of the
taxable values, as the case requires, of the car fringe benefits in relation to
the employer in relation to the year of tax that relate to the car while it was
held by a particular person (in this section referred to as the provider)
during a particular period (in this section referred to as the holding
period) in the year of tax is the amount calculated in accordance with
the formula:
where:
C is the operating cost of the car during the
holding period;
BP is:
(a) if, under section 10A or 10B,
the employer is not entitled to a reduction in the operating cost of the car on
account of business journeys undertaken in the car during the holding
period—nil; or
(c) in any other case—the business use
percentage applicable to the car for the holding period; and
R is the amount (if any) of the recipient’s
payment.
(3) For the purposes of subsection (2):
(a) the operating cost of the car
during the holding period is the sum of:
(i) any car expenses
(other than insured repair expenses or expenses in respect of registration and
insurance) relating to the car incurred during the holding period (whether the
expenses are incurred by the provider or by any other person), not including,
in a case where the car is leased to the provider, any car expenses incurred by
the lessor pursuant to the lease agreement;
(ii) so much of any expense
paid or payable in respect of the registration of, or insurance in respect of,
the car as is attributable to the holding period (whether the expenses are
incurred by the provider or by any other person), not including:
(A) in a
case where the car is owned by the provider—any expense incurred before the
provider became the owner of the car; or
(B) in a
case where the car is leased to the provider—any expense incurred by the lessor
pursuant to the lease agreement;
(iii) in a case where the
car is owned by the provider:
(A) the
amount of depreciation that is deemed to have been incurred by the provider in
respect of the car in respect of the holding period; and
(B) the
amount of interest that is deemed to have been incurred by the provider in
respect of the car in respect of the holding period;
(iv) in a case where the car
is owned by the provider and a non‑business accessory was fitted to the
car during the period when the car was owned by the provider and remained
fitted to the car at a time during the holding period:
(A) the
amount of depreciation that would be deemed to have been incurred by the
provider in respect of the accessory in respect of the holding period if the
accessory were a car; and
(B) the
amount of interest that would be deemed to have been incurred by the provider
in respect of the accessory in respect of the holding period if the accessory
were a car;
(v) in a case where the car
is leased to the provider:
(A) where sub-subparagraph (B)
does not apply—so much of the charges paid or payable under the lease agreement
as are attributable to the holding period; or
(B) where
the lessor was entitled to privileges or exemptions in relation to sales tax or
customs duty in respect of a transaction by which the lessor purchased the
car—the amount that could reasonably be expected to have been applicable under sub-subparagraph (A)
if the lessor had not been entitled to those privileges or exemptions; and
(vi) in a case where the car
is neither owned by, nor leased to, the provider—the amount of depreciation and
interest that would be deemed to have been incurred by the provider in respect
of the car in respect of the holding period if the car had been purchased by
the provider at the time when the provider commenced to hold the car for a
consideration equal to the leased car value of the car at that time; and
(c) the amount of the recipient’s
payment is the sum of:
(i) in a case where
expenses were incurred to the provider or employer during the holding period by
recipients of the car fringe benefits by way of consideration for the provision
of the car fringe benefits—the amount of those expenses paid by the recipients
less any amount paid or payable to the recipients by way of reimbursement of
those expenses;
(ia) in a case where car
expenses in respect of fuel or oil for the car were incurred during the holding
period by recipients of the car fringe benefits and:
(A) the
persons incurring those expenses give to the employer, before the declaration
date, declarations, in a form approved by the Commissioner, in respect of those
expenses; or
(B) documentary
evidence of those expenses is obtained by the persons incurring the expenses
and given to the employer before the declaration date;
the amount of those
expenses paid by the recipients less any amount paid or payable to the
recipients by way of reimbursement of those expenses; and
(ii) in a case where:
(A) car
expenses in respect of the car (other than car expenses in respect of fuel or
oil for the car) were incurred during the holding period by recipients of the
car fringe benefits; and
(B) documentary
evidence of those expenses is obtained by the persons incurring the expenses
and given to the employer before the declaration date;
the amount of those
expenses paid by the recipients less any amount paid or payable to the
recipients by way of reimbursement of those expenses.
(3A) A reference in subparagraph (3)(a)(i)
to an insured repair expense relating to a car is a reference to:
(a) so much of an expense incurred in
respect of repairs to the car as does not exceed an amount:
(i) received by way of
insurance in respect of the repairs by the person incurring the expense;
(ii) paid by way of
insurance in respect of the repairs in discharge of the obligation of the
insured to pay the expense;
(iii) received by way of
compensation in respect of the repairs by the person incurring the expense from
the person legally responsible for the damage to the car; or
(iv) paid by way of
compensation in respect of the repairs by the person legally responsible for
the damage to the car in discharge of the obligation of the person incurring
the expense to pay the expense; or
(b) an expense incurred in respect of
repairs to the car:
(i) by an insurer under a
contract of insurance; or
(ii) by way of compensation
by the person legally responsible for the damage to the car.
(3B) Where, in accordance with subsection
162K(2), the identity of a car changes one or more times during the period (in
this subsection called the overall holding period) that, apart
from that subsection, would be the holding period, the operating cost of the
car during each period (in this subsection called a statutory holding
period) that is a holding period in relation to the car when the car
had a separate identity is so much of the amount that would have been the
operating cost of the car during the overall holding period (assuming that the
identity of the car had not changed during the overall holding period) as is
attributable to the statutory holding period.
(3C) Where, in accordance with subsection
162K(2), the identity of a car changes one or more times during the period (in
this subsection called the overall holding period) that, apart
from that subsection, would be the holding period, the recipient’s payment in
relation to each period (in this subsection called a statutory holding
period) that is a holding period in relation to the car when the car
had a separate identity is so much of the amount that would have been the
recipient’s payment in relation to the overall holding period (assuming that
the identity of the car had not changed during the overall holding period) as
is attributable to the statutory holding period.
(3D) In determining, for the purposes of this
section, whether:
(a) an expense is paid or payable in
respect of the registration of, or insurance in respect of, a car;
(b) a charge is paid or payable under
a lease agreement in respect of a car; or
(c) a lessor of a car is entitled to
privileges or exemptions in relation to sales tax or customs duty in respect of
a transaction by which the lessor purchased the car;
a change, in accordance with subsection 162K(2), to the
identity of the car shall be disregarded.
(4) An election by an employer under subsection (1)
in relation to a year of tax:
(a) shall be made by notice in writing
to the Commissioner; and
(b) shall be lodged with the
Commissioner on or before the declaration date.
(5) Where:
(a) an employer elects that this
section apply in relation to all the car fringe benefits in relation to the
employer in relation to a year of tax that relate to a particular car; and
(b) the taxable value, or the
aggregate of the taxable values, as the case requires, of the car fringe
benefits that relate to the car ascertained under subsection (2) of this
section exceeds the taxable value, or the aggregate of the taxable values, as
the case requires, that would have been ascertained under section 9 if
that election had not been made;
this Act (other than section 162G) applies, and shall
be deemed always to have applied, for the purposes of ascertaining that taxable
value, or the aggregate of those taxable values, as the case requires, as if
that election had not been made.
(6) Nothing in section 74 prevents the
amendment of an assessment for the purpose of giving effect to subsection (5).
10A No
reduction of operating cost in a log book year of tax unless log book records
and odometer records are maintained
Where one or more car fringe benefits in
relation to an employer in relation to a year of tax relate to a car while it
was held by a particular person (in this section called the provider)
during a particular period (in this section called the holding period)
in a year of tax that is a log book year of tax of the employer in relation to
the car, the employer is entitled to a reduction in the operating cost of the car
on account of business journeys undertaken in the car during the holding period
if, and only if:
(a) log book records and odometer
records are maintained by or on behalf of the provider for an applicable log
book period in relation to the car; and
(b) odometer records are maintained by
or on behalf of the provider for the holding period; and
(c) if the provider is not the
employer—those log book records and odometer records are given to the employer
before the declaration date; and
(d) the employer specifies the
employer’s estimate of the number of business kilometres travelled by the car
during the holding period; and
(e) the employer specifies a
percentage as the business use percentage applicable to the car in relation to
the provider for the holding period.
10B No
reduction of operating cost in a non‑log book year of tax unless log book
records and odometer records are maintained in log book year of tax
Where one or more car fringe benefits in
relation to an employer in relation to a year of tax relate to a car while it
was held by a particular person (in this section called the provider)
during a particular period (in this section called the holding period)
in a year of tax that is not a log book year of tax of the employer in relation
to the car, the employer is entitled to a reduction in the operating cost of
the car on account of business journeys undertaken during the holding period in
the car if, and only if:
(a) odometer records are maintained by
or on behalf of the provider in relation to the car for the holding period and,
if the provider is not the employer, are given to the employer before the
declaration date; and
(b) the employer specifies the
employer’s estimate of the number of business kilometres travelled by the car
in the holding period; and
(c) the employer specifies the
business use percentage applicable to the car in relation to the provider for
the holding period.
11
Calculation of depreciation and interest
(1A) For the purposes of this Subdivision, the
amount of depreciation that is deemed to have been incurred by a person in
respect of a car in respect of the period (in this subsection called the holding
period) during a year of tax while the car was held by the person is
the amount calculated in accordance with the formula:
where:
DEP is the amount of depreciation that is
deemed to have been incurred by the person in respect of the car in respect of
the year of tax;
DHP is the number of days in the holding
period during which the car was owned by the person; and
DCO is the number of days in the period in
the year of tax during which the car was owned by the person.
(1) For the purposes of this Subdivision, the
amount of depreciation that is deemed to have been incurred by a person in
respect of a car in respect of a year of tax is the amount calculated in
accordance with the formula:
where:
A is:
(a) where the car was owned by the
person at the beginning of the year of tax—the depreciated value of the car at
that time; or
(b) in any other case—the cost price
of the car to the person;
B is the amount worked out for the person and
the car using the formula in subsection (1AA).
C is the number of days in the period in the
year of tax during which the car was owned by the person; and
D is the number of days in the year of tax.
(1AA) The formula for working out the amount of B
for the person and the car for subsection (1) is:
where:
DV percentage is the percentage applicable in
using the diminishing value method (within the meaning of the Income Tax
Assessment Act 1997) as at the start of the year of tax.
effective life of the car is the number of
years in the period specified as the effective life of the car in a
determination made by the Commissioner under section 40‑100 of the Income
Tax Assessment Act 1997 and in effect at the most recent time (before the
end of the year of tax) the person became the owner of the car.
(1B) For the purposes of this Subdivision, the
amount of interest that is deemed to have been incurred by a person in respect
of a car in respect of the period (in this subsection called the holding
period) during a year of tax while the car was held by the person is
the amount calculated in accordance with the formula:
where:
INT is the amount of interest that is deemed
to have been incurred by the person in respect of the car in respect of the
year of tax;
DHP is the number of days in the holding
period during which the car was owned by the person; and
DCO is the number of days in the period in
the year of tax during which the car was owned by the person.
(2) For the purposes of this Subdivision, the
amount of interest that is deemed to have been incurred by a person in respect
of a car in respect of a year of tax is the amount calculated in accordance
with the formula:
where:
A is:
(a) where the car was owned by the
person at the beginning of the year of tax—the depreciated value of the car at
that time; or
(b) in any other case—the cost price
of the car to the person;
B is the statutory interest rate in relation
to the year of tax;
C is the number of days in the period in the
year of tax during which the car was owned by the person; and
D is the number of days in the year of tax.
12
Depreciated value
(1) In this Subdivision, the depreciated
value of a car at a particular time (the relevant time)
is the amount worked out using the formula:
where:
A is:
(a) if the car was owned by the person
at the start of 1 July 1986—the depreciated value worked out under subsection (2);
or
(b) in any other case—the cost price
of the car to the person.
B is the total amount of depreciation (if
any) that would have been taken to have been incurred by the person in respect
of the car for the period after the start of 1 July 1986 and before the
relevant time when the person owned the car, if the depreciation taken to have
been incurred for that period were calculated in accordance with subsection
11(1).
(2) The depreciated value of a
car owned by a person at the start of 1 July 1986 is the cost price of the
car to that person, reduced by the total amount of depreciation that would have
been taken to have been incurred by the person in respect of the car for the
period before that time when it was owned by the person if:
(a) the depreciation taken to have
been incurred for that period were calculated in accordance with subsection
11(1); and
(b) each year starting on 1 July
were a year of tax.
13
Expenditure to be increased in certain circumstances
(1) The following provisions apply for the
purpose of determining the base value of a car for the purposes of section 9
or the operating cost of a car for the purposes of section 10.
(2) Where the amount (if any) of expenditure
incurred by a person under a transaction that is not an arm’s length
transaction is less than the amount (in this subsection referred to as the increased
amount) of expenditure that could reasonably have been expected to have
been incurred by the person under the transaction if it had been an arm’s
length transaction, the person shall be deemed, under the transaction, to have
incurred the increased amount of expenditure.
(3) The reference in subsection (2) to
expenditure does not include a reference to expenditure by a recipient of a car
benefit in relation to the car by way of reimbursement of expenditure incurred
by another person.
(4) Where, in
a case to which subsection (2) does not apply:
(a) a person acquires any property, or
is provided with any benefit; and
(b) the person incurs no expenditure
in respect of the acquisition of that property or the provision of that
benefit;
the person shall be deemed to have incurred, in respect of
the acquisition of that property or the provision of that benefit, expenditure
equal to the amount that the person could reasonably be expected to have been
required to pay to purchase that property, or obtain the provision of that
benefit, on the open market.
Division 3—Debt waiver fringe benefits
Subdivision A—Debt waiver benefits
14
Debt waiver benefits
Where, at a particular time, a person
(in this section referred to as the provider) waives the obligation
of another person (in this section referred to as the recipient)
to pay or repay to the provider an amount, the waiver shall be taken to
constitute a benefit provided at that time by the provider to the recipient.
Subdivision B—Taxable value of debt waiver fringe benefits
15
Taxable value of debt waiver fringe benefits
Subject to this Part, the taxable value
in relation to a year of tax of a debt waiver fringe benefit provided in the
year of tax is the amount the payment or repayment of which is waived.
Division 4—Loan fringe benefits
Subdivision A—Loan benefits
16
Loan benefits
(1) Where a person (in this subsection
referred to as the provider) makes a loan to another person (in
this subsection referred to as the recipient), the making of the
loan shall be taken to constitute a benefit provided by the provider to the
recipient and that benefit shall be taken to be provided in respect of each
year of tax during the whole or a part of which the recipient is under an
obligation to repay the whole or any part of the loan.
Note: A loan benefit that is taken under this
subsection to be provided in respect of a year of tax may not be provided as a
fringe benefit if:
(a) the loan was made in that
year of tax or a previous year of tax; and
(b) a dividend is not taken to
be paid under section 109D of the Income Tax Assessment Act 1936 in
relation to the loan, because of section 109N of that Act.
See paragraph (s) of the
definition of fringe benefit in subsection 136(1) of this Act.
(2) For the purposes of this Act, where:
(a) a person (in this subsection
referred to as the debtor) is under an obligation to pay or repay
an amount (in this subsection referred to as the principal amount)
to another person (in this subsection referred to as the creditor);
(b) the principal amount is not the
whole or a part of the amount of a loan; and
(c) after the due date for payment or
repayment of the principal amount, the whole or part of the principal amount
remains unpaid;
the following provisions have effect:
(d) the creditor shall be deemed,
immediately after the due date, to have made a loan (in this subsection
referred to as the deemed loan) of the principal amount to the
debtor;
(e) at any time when the debtor is
under an obligation to repay any part of the principal amount, the debtor shall
be deemed to be under an obligation to repay that part of the deemed loan;
(f) the deemed loan shall be deemed
to have been made:
(i) if interest accrues on
so much of the principal amount as remains from time to time unpaid—at the rate
of interest at which that interest accrues; or
(ii) in any other case—at a
nil rate of interest.
(3) For the purposes of this Act, where a
person (in this subsection referred to as the provider) makes a
deferred interest loan (in this subsection referred to as the principal
loan) to another person (in this subsection referred to as the recipient):
(a) the provider shall be deemed, at
the end of:
(i) the period of 6 months
commencing on the day on which the principal loan was made; and
(ii) each subsequent period
of 6 months;
(being in either case a period
ending on or after 1 July 1986 during the whole of which the recipient is
under an obligation to repay the whole or any part of the principal loan) to
have made a loan (in this subsection referred to as the deemed loan)
to the recipient of an amount equal to the amount by which the interest (in
this subsection referred to as the accrued interest) that has
accrued on the principal loan in respect of that period exceeds the amount (if
any) paid in respect of the accrued interest before the end of that period;
(b) where any part of the accrued
interest becomes payable or is paid after the time when the deemed loan is
deemed to have been made, the deemed loan shall be reduced accordingly; and
(c) the deemed loan shall be deemed to
have been made at a nil rate of interest.
(4) In subsection (3), deferred
interest loan means a loan in respect of which interest is payable at a
rate exceeding nil, other than:
(a) a loan where the whole of the
interest is due for payment within 6 months after the loan is made; or
(b) a loan where:
(i) the interest is
payable by instalments;
(ii) the intervals between
instalments do not exceed
6 months; and
(iii) the first instalment
is due for payment within 6 months after the loan is made.
(5) For the purposes of this Act, where no
interest is payable in respect of a loan, a nil rate of interest shall be taken
to be payable in respect of the loan.
17
Exempt loan benefits
(1) Where:
(a) a loan is made by a person who
carries on a business that consists of or includes making loans to members of
the public; and
(b) the rate of interest payable in
respect of the loan:
(i) is specified in a
document in existence at the time the loan is made;
(ii) is not less than the
rate of interest in respect of a similar arm’s length loan made by the person,
at or about that time, to a member of the public in the ordinary course of
carrying on that business; and
(iii) cannot be varied;
the making of the loan is an exempt benefit.
(2) Where:
(a) a loan is made by a person who
carries on a business that consists of or includes making loans to members of
the public; and
(b) the rate of interest from time to
time payable in respect of the loan in respect of a year of tax is not less
than the rate of interest applicable at the time concerned in respect of a
similar arm’s length loan made by the person, at or about the time the loan
referred to in paragraph (a) is made, to a member of the public in the
ordinary course of carrying on that business;
the making of the loan is an exempt benefit in relation to
that year of tax.
(3) Where:
(a) a loan consists of an advance by
an employer to a current employee of the employer in respect of his or her
employment;
(b) the sole purpose of the making of
the loan is to enable the employee to meet expenses incurred by the employee:
(i) in the course of
performing the duties of that employment; and
(ii) not later than 6
months after the loan is made;
(c) the amount of the loan does not
substantially exceed the amount of those expenses that could reasonably be
expected to be incurred by the employee; and
(d) the employee is required:
(i) to account to the
employer, not later than 6 months after the loan is made, for expenses met from
the loan; and
(ii) to repay (whether by
set‑off or otherwise) any amount not so accounted for;
the making of the loan is an exempt benefit.
(4) Where:
(a) the making of a loan consisting of
an advance by an employer to an employee of the employer constitutes a benefit
in respect of the employment of the employee in respect of a year of tax (in
this subsection called the current year of tax);
(b) the sole purpose of the making of
the loan is to enable the employee to pay any of the following amounts payable
by the employee in respect of accommodation:
(i) a rental bond;
(ii) a security deposit in
respect of electricity, gas or telephone services;
(iii) any similar amount;
(c) the employee is required to repay
(whether by set‑off or otherwise) the loan not later than 12 months after
the loan is made;
(d) any of the following benefits is
provided in, or in respect of, any year of tax to the employee in respect of
that employment:
(i) an expense payment
benefit where the recipients expenditure is in respect of a lease or licence in
respect of that accommodation;
(ii) a housing benefit
where the housing right is in respect of that accommodation;
(iii) a residual benefit
where the recipients benefit is constituted by the subsistence of a lease or
licence in respect of that accommodation; and
(e) either of the following
subparagraphs apply:
(i) by virtue of section 21
or subsection 47(5), the benefit referred to in paragraph (d) is an exempt
benefit in relation to the year of tax referred to in that paragraph;
(ii) the benefit referred
to in paragraph (d) is a fringe benefit in relation to the year of tax
referred to in that paragraph and, under section 61C, the taxable value of
the fringe benefit is reduced by the extent to which that taxable value is
attributable to the subsistence of a lease or licence in respect of the
accommodation during a particular period in that year of tax;
the making of the loan is an exempt benefit in relation to
the current year of tax.
Subdivision B—Taxable value of loan fringe benefits
18
Taxable value of loan fringe benefits
(1) Subject to this Part, the taxable value,
in relation to a year of tax, of a loan fringe benefit provided in respect of
the year of tax is the amount (if any) by which the notional amount of interest
in relation to the loan in respect of the year of tax exceeds the amount of
interest that has accrued on the loan in respect of the year of tax.
19
Reduction of taxable value—otherwise deductible rule
(1) Where:
(a) the recipient of a loan fringe benefit
in relation to an employer in relation to a year of tax is an employee of the
employer; and
(b) if the recipient had, on the last
day of the period (in this subsection called the loan period)
during the year of tax when the recipient was under an obligation to repay the
whole or any part of the loan, incurred and paid unreimbursed interest (in this
subsection called the gross interest), in respect of the loan, in
respect of the loan period, equal to the notional amount of interest in
relation to the loan in relation to the year of tax—a once‑only deduction
(in this subsection called the gross deduction) would, or would
if not for section 82A of the Income Tax Assessment Act 1936, and
Divisions 28 and 900 of the Income Tax Assessment Act 1997, have been
allowable to the recipient under either of those Acts in respect of the gross
interest; and
(ba) the amount (in this subsection
called the notional deduction) calculated in accordance with the
formula:
where:
GD is the gross
deduction; and
RD is:
(i) if no interest accrued
on the loan in respect of the loan period—nil; or
(ii) if interest accrued on
the loan in respect of the loan period—the amount (if any) that would, or that
would but for section 82A of the Income Tax Assessment Act 1936,
and Divisions 28 and 900 of the Income Tax Assessment Act 1997,
have been allowable as a once‑only deduction to the recipient under the Income
Tax Assessment Act 1936 or the Income Tax Assessment Act 1997 in
respect of that interest if that interest had been incurred and paid by the
recipient on the last day of the loan period;
exceeds nil; and
(c) except
where the fringe benefit is:
(i) an employee credit
loan benefit in relation to the year of tax; or
(ii) an employee share loan
benefit in relation to the year of tax;
the recipient gives to the
employer, before the declaration date, a declaration, in a form approved by the
Commissioner, in respect of the loan concerned; and
(ca) where:
(ii) the loan fringe
benefit is a car loan benefit in respect of a car held by the recipient during
a period (in this subsection also called the holding period) in
the year of tax; and
(iii) the substantiation
rules set out in Division 15 have been complied with in relation to the
car in relation to the holding period;
the following conditions are
satisfied:
(iv) the recipient gives to
the employer, before the declaration date, a car substantiation declaration for
the car for the year of tax;
(v) in a case where the
substantiation rules require log book records or odometer records to be
maintained by or on behalf of the recipient in relation to the car—the car
substantiation declaration is accompanied by a copy of those documents; and
(d) where paragraph (ca) does not
apply and the loan fringe benefit is a car loan benefit in respect of a car
held by the recipient during a period (in this subsection also called the holding
period) in the year of tax, the recipient gives to the employer, before
the declaration date:
(i) a declaration, in a
form approved by the Commissioner, that purports to set out:
(A) the
holding period; and
(B) the
number of whole business kilometres travelled by the car during the holding
period; and
(C) the
number of whole kilometres travelled by the car during the holding period; or
(ii) where the average
number of business kilometres per week travelled by the car during the holding
period exceeded 96:
(A) a
declaration referred to in subparagraph (i); or
(B) a
declaration, in a form approved by the Commissioner, that purports to set out
the holding period and includes a statement by the recipient that the average
number of business kilometres per week travelled by the car during the holding
period exceeded 96;
the taxable value, but for Division 14, of the loan
fringe benefit in relation to the year of tax is the amount calculated in
accordance with the formula:
where:
TV is the amount that, but for this
subsection and Division 14, would be the taxable value of the loan fringe
benefit in relation to the year of tax; and
ND is:
(e) if neither paragraph (ca) nor
(d) applies and paragraph (i) does not apply—the notional deduction; or
(f) if paragraph (ca) applies
and paragraph (i) does not apply—whichever of the following amounts is
applicable:
(i) if it would be
concluded that the amount of interest that has accrued on the loan in respect
of the loan period would have been the same even if the loan fringe benefit
were not applied or used in producing assessable income of the recipient—the
business use percentage of the amount that, but for this subsection and
Division 14, would be the taxable value of the loan fringe benefit in
relation to the year of tax;
(ii) if subparagraph (i)
does not apply—the business use percentage of the notional amount of interest
in relation to the loan in relation to the year of tax; or
(g) where:
(i) paragraph (d)
applies; and
(ii) a declaration referred
to in subparagraph (d)(i) has been given to the employer; and
(iia) paragraph (i) does
not apply;
whichever of the following
amounts is the least:
(iii) the notional
deduction;
(iv) if it would be
concluded that the amount of interest that has accrued on the loan in respect
of the loan period would have been the same even if the loan fringe benefit
were not applied or used in producing assessable income of the recipient—33
% of the amount that, but
for this subsection and Division 14, would be the taxable value of the
loan fringe benefit in relation to the year of tax;
(v) if subparagraph (iv)
does not apply—33% of the notional
amount of interest in relation to the loan in relation to the year of tax; or
(h) where:
(i) subparagraph (d)(ii)
applies; and
(ii) a declaration referred
to in subparagraph (d)(i) has not been given to the employer; and
(iia) paragraph (i) does
not apply;
whichever of the following
amounts is applicable:
(iii) if it would be
concluded that the amount of interest that has accrued on the loan in respect
of the loan period would have been the same even if the loan fringe benefit
were not applied or used in producing assessable income of the recipient—33% of the amount that, but
for this subsection and Division 14, would be the taxable value of the
loan fringe benefit in relation to the year of tax;
(iv) if subparagraph (iii)
does not apply—33% of the notional
amount of interest in relation to the loan in relation to the year of tax; or
(i) if, under subsection 138(3), the
loan fringe benefit is deemed to have been provided to the recipient only—the
amount calculated in accordance with subsection (5).
(2) Where a part of a loan to which a loan
fringe benefit relates is used by an employee to:
(a) purchase a particular car; or
(b) pay a Division 28 car
expense;
subsection (1) and the definition of car loan
benefit in subsection 136(1) apply as if that part of the loan had been
a separate loan.
(3) Where:
(a) apart from this subsection, paragraph (1)(ca)
applies in relation to a fringe benefit in relation to an employer in respect
of a car held by the recipient during a period in the year of tax; and
(b) whichever of the following amounts
is the greater exceeds the amount that, apart from this subsection, would be
ascertained under paragraph (1)(f) as representing the component ND in the
formula in subsection (1):
(i) in all cases—the
amount that would have been ascertained under paragraph (1)(g) as
representing that component if:
(A) paragraph (1)(d)
had applied in relation to the fringe benefit; and
(B) a
declaration of the kind referred to in subparagraph (1)(d)(i) had been
given to the employer;
(ii) in a case where the
average number of business kilometres per week travelled by the car during the
holding period exceeded 96—the amount that would have been ascertained under paragraph (1)(h)
as representing that component if:
(A) subparagraph (1)(d)(ii)
had applied in relation to that fringe benefit; and
(B) a
declaration of the kind referred to in subparagraph (1)(d)(i) had not been
given to the employer; and
(C) a declaration
of the kind referred to in
sub-subparagraph (1)(d)(ii)(B) had been given to the employer;
this Act applies, and shall be deemed always to have
applied, as if the amount represented by that component had been calculated as
mentioned in whichever of subparagraphs (b)(i) or (ii) of this subsection
is applicable.
(4) Nothing in section 74 prevents the
amendment of an assessment for the purpose of giving effect to subsection (3).
(5) For the purposes of paragraph (1)(i)
(which applies to a loan fringe benefit that, under subsection 138(3), is
deemed to have been provided to an employee only), the amount is calculated in
accordance with the formula:
where:
employee’s percentage of interest:
(a) is the percentage of the interest
held by the employee, during a period (in this subsection called the holding
period) in the year of tax, in the asset or other thing that:
(i) is purchased or paid
for using all or part of the loan to which the loan fringe benefit relates; and
(ii) is applied or used for
the purpose of producing assessable income of the employee; and
(b) does not include the percentage of
the interest held in that asset or other thing by the employee’s associate or
associates during the holding period.
unadjusted ND is the amount that would be
ascertained as representing the component ND in the formula in
subsection (1) if paragraph (1)(i) did not apply in relation to the
loan fringe benefit.
Division 5—Expense payment fringe benefits
Subdivision A—Expense payment benefits
20
Expense payment benefits
Where a person (in this section referred
to as the provider):
(a) makes a payment in discharge, in
whole or in part, of an obligation of another person (in this section referred
to as the recipient) to pay an amount to a third person in respect
of expenditure incurred by the recipient; or
(b) reimburses another person (in this
section also referred to as the recipient), in whole or in part,
in respect of an amount of expenditure incurred by the recipient;
the making of the payment referred to in paragraph (a),
or the reimbursement referred to in paragraph (b), shall be taken to
constitute the provision of a benefit by the provider to the recipient.
20A
Exemption—no‑private‑use declaration
(1) An expense payment fringe benefit that is
covered by a
no‑private‑use declaration is an exempt benefit.
(2) An employer may make a no‑private‑use
declaration that covers all the employer’s expense payment
fringe benefits for an FBT year for which the employer will only pay or
reimburse so much of the expense that is the subject of the benefit as would
result in the taxable value of the benefit being nil.
(3) The declaration must be in a form
approved in writing by the Commissioner and be made by the declaration date.
21
Exempt accommodation expense payment benefits
Where:
(a) an expense payment benefit is
provided in a year of tax to a current employee of an employer in respect of
his or her employment;
(b) the recipients expenditure is in
respect of accommodation for eligible family members;
(ba) the accommodation is not provided
while the employee is undertaking travel in the course of performing the duties
of that employment;
(c) the accommodation is required
solely by reason that the employee is required to live away from his or her
usual place of residence in order to perform the duties of that employment; and
(d) the employee gives to the
employer, before the declaration date, a declaration, in a form approved by the
Commissioner, purporting to set out:
(i) the employee’s usual
place of residence; and
(ii) the place at which the
employee actually resided while living away from his or her usual place of
residence;
the benefit is an exempt benefit in relation to the year
of tax.
22
Exempt car expense payment benefits
Where:
(a) an expense payment benefit
provided to an employee of an employer in respect of his or her employment is
constituted by the reimbursement of the employee, in whole or in part, in
respect of an amount of a Division 28 car expense incurred by the employee
in relation to a car owned by, or leased to, the employee;
(b) in a case where the car is leased
to the employee—the recipients expenditure is not attributable to a period when
the lessor is the provider of a car benefit in relation to the car in relation
to the employee;
(c) the benefit is not in respect of
relocation transport;
(ca) the benefit is not in respect of
an employment interview or selection test;
(cb) the benefit is not associated
with:
(i) a work‑related
medical examination of the employee;
(ii) work‑related
medical screening of the employee;
(iii) work‑related
preventative health care of the employee;
(iv) work‑related
counselling of the employee or of an associate of the employee; or
(v) migrant language
training of the employee or of an associate of the employee;
(cc) neither of the following
subparagraphs applies in relation to the transport to which the benefit
relates:
(i) the transport was
provided wholly or partly to enable the employee, or an associate of the
employee, to have a holiday;
(ii) the transport was
provided at a time when the employee had ceased to perform the duties of that
employment; and
(d) the reimbursement is calculated by
reference to the distance travelled by the car;
the expense payment benefit is an exempt benefit.
Subdivision B—Taxable value of expense payment fringe benefits
22A
Taxable value of in‑house expense payment fringe benefits
(1) Subject to this Part, the taxable value
in relation to a year of tax of an in‑house property expense payment
fringe benefit (in this subsection called the actual fringe benefit)
provided during the year of tax is the amount that, if:
(a) the provision of property to which
the actual fringe benefit relates were an in‑house property fringe
benefit (in this subsection called the notional fringe benefit);
and
(b) the recipients contribution in
relation to the notional fringe benefit were equal to the recipients
expenditure reduced by whichever of the following amounts is applicable:
(i) the amount of the
payment referred to in paragraph 20(a) reduced by the amount of the recipients
contribution in relation to the actual fringe benefit;
(ii) the amount of the
reimbursement referred to in paragraph 20(b);
would have been calculated under section 42 as the
taxable value, but for section 44 and Division 14, of the notional
fringe benefit in relation to the year of tax.
(2) Subject to this Part, the taxable value
in relation to a year of tax of an in‑house residual expense payment
fringe benefit (in this subsection called the actual fringe benefit)
provided during the year of tax is the amount that, if:
(a) the provision of the residual
benefit to which the actual fringe benefit relates were an in‑house
residual fringe benefit (in this subsection called the notional fringe
benefit); and
(b) the recipients contribution in
relation to the notional fringe benefit were equal to the recipients
expenditure reduced by whichever of the following amounts is applicable:
(i) the amount of the
payment referred to in paragraph 20(a) reduced by the amount of the recipients
contribution in relation to the actual fringe benefit;
(ii) the amount of the
reimbursement referred to in paragraph 20(b);
would have been calculated under whichever of sections 48
and 49 is applicable as the taxable value, but for section 52 and Division 14,
of the notional fringe benefit in relation to the year of tax.
(3) For the purposes of subsection (2),
section 49 has effect as if:
(a) “the current identical benefit in
relation to” were omitted from paragraph 49(a);
(b) the reference in paragraph 49(b)
to the recipients current benefit were a reference to the recipients overall
benefit; and
(c) “insofar as it relates to the
recipients current benefit” were omitted from section 49.
(4) Where the recipients expenditure in
relation to each of 2 or more in‑house expense payment fringe benefits
(whether or not in relation to the same year of tax) is the same expenditure,
this Act applies, and shall be deemed to have applied, as if all the payments
or reimbursements to which those fringe benefits relate had been made at the
time when the first of those payments or reimbursements was made and not
otherwise.
(5) Nothing in section 74 prevents the
amendment of an assessment for the purpose of giving effect to subsection (4).
23 Taxable
value of external expense payment fringe benefits
Subject to this Part, the taxable value
in relation to a year of tax of an external expense payment fringe benefit
provided during the year of tax is the amount of the payment referred to in
paragraph 20(a), or the reimbursement referred to in paragraph 20(b), as the
case requires, reduced, in a case to which paragraph 20(a) applies, by the
amount of the recipients contribution.
24
Reduction of taxable value—otherwise deductible rule
(1) Where:
(a) the recipient of an expense
payment fringe benefit in relation to an employer in relation to a year of tax
is an employee of the employer; and
(b) if the recipient had, at the time
when the recipients expenditure was incurred, incurred and paid unreimbursed
expenditure (in this subsection called the gross expenditure), in
respect of the same matter in respect of which the recipients expenditure was
incurred, equal to:
(i) in the case of an in‑house
expense payment fringe benefit—the amount that, but for this subsection and
Division 14 and the recipients contribution, would be the taxable value of
the expense payment fringe benefit in relation to the year of tax; or
(ii) in the case of an
external expense payment fringe benefit—the amount of the recipients
expenditure;
a once‑only deduction (in
this subsection called the gross deduction) would, or would if
not for section 82A of the Income Tax Assessment Act 1936, and
Divisions 28 and 900 of the Income Tax Assessment Act 1997, have
been allowable to the recipient under either of those Acts in respect of the
gross expenditure; and
(ba) the amount (in this subsection
called the notional deduction) calculated in accordance with the
formula:
where:
GD is the gross
deduction; and
RD is:
(i) if there is no
recipients portion in relation to the expense payment fringe benefit—nil; or
(ii) if there is a
recipients portion in relation to the expense payment fringe benefit—the amount
(if any) that would, or that would but for section 82A of the Income
Tax Assessment Act 1936, and Divisions 28 and 900 of the Income Tax
Assessment Act 1997, have been allowable as a once‑only deduction to
the recipient under either of those Acts in respect of the recipients
expenditure (assuming that any payment of that expenditure by the recipient had
been paid by the recipient at the time when the recipients expenditure was
incurred);
exceeds nil; and
(c) in the case of an expense payment
fringe benefit that is not an eligible incidental travel expense payment
benefit or an eligible overtime meal expense payment benefit:
(ia) where the recipients
expenditure is in respect of fuel or oil for a motor vehicle owned by, or
leased to, the recipient:
(A) where
the fringe benefit is an eligible small expense payment fringe benefit or an
undocumentable expense payment fringe benefit—substitute documentary evidence
of the recipients expenditure is maintained by or on behalf of the provider
and, if the provider is not the employer, that documentary evidence, or a copy,
is given to the employer before the declaration date; or
(B) in any
case—documentary evidence of the recipients expenditure is obtained by the
recipient and that documentary evidence, or a copy, is given to the employer
before the declaration date; or
(C) in any
case—the recipient gives to the employer, before the declaration date, a
declaration, in a form approved by the Commissioner, in respect of the
recipients expenditure; or
(i) where subparagraph (ia)
does not apply and the fringe benefit is an undocumentable expense payment
fringe benefit or an eligible small expense payment fringe benefit:
(A) documentary
evidence of the recipients expenditure is obtained by the recipient and that
documentary evidence, or a copy, is given to the employer before the declaration
date; or
(B) substitute
documentary evidence of the recipients expenditure is maintained by or on
behalf of the provider and, if the provider is not the employer, that
documentary evidence, or a copy, is given to the employer before the
declaration date; or
(ii) in any other
case—documentary evidence of the recipients expenditure is obtained by the
recipient and that documentary evidence, or a copy, is given to the employer
before the declaration date; and
(d) where the expense payment fringe
benefit is an extended travel expense payment benefit (other than an
international aircrew expense payment benefit)—the recipient gives to the
employer, before the declaration date, a travel diary in relation to the travel
undertaken by the recipient to which the fringe benefit relates; and
(e) except where the expense payment
fringe benefit is:
(i) an exclusive employee
expense payment benefit; or
(ia) covered by a recurring
fringe benefit declaration (see section 152A); or
(ii) an eligible overtime
meal expense payment benefit; or
(iii) an eligible incidental
travel expense payment benefit; or
(iv) an extended travel
expense payment benefit; or
(v) a car expense payment
benefit;
the recipient gives to the
employer, before the declaration date, a declaration, in a form approved by the
Commissioner, in respect of the recipients expenditure; and
(ea) where:
(i) the expense payment
fringe benefit is a car expense payment benefit in respect of a car held by the
recipient during a period (in this section called the holding period)
in the year of tax; and
(ii) the substantiation
rules set out in Division 15 have been complied with in relation to the
car in relation to the holding period;
the following conditions are
satisfied:
(iii) the recipient gives to
the employer, before the declaration date, a car substantiation declaration for
the car for the year of tax;
(iv) in a case where the
substantiation rules require log book records or odometer records to be
maintained by or on behalf of the recipient in relation to the car—the car
substantiation declaration is accompanied by a copy of those documents; and
(f) where paragraph (ea) does
not apply and the expense payment fringe benefit is a car expense payment
benefit in respect of a car held by the recipient during a period (in this
subsection also called the holding period) in the year of tax—the
recipient gives to the employer, before the declaration date:
(i) a declaration, in a
form approved by the Commissioner, that purports to set out:
(A) the
holding period; and
(B) the
number of whole business kilometres travelled by the car during the holding
period; and
(C) the
number of whole kilometres travelled by the car during the holding period; or
(ii) where the average
number of business kilometres per week travelled by the car during the holding
period exceeded 96:
(A) a
declaration referred to in subparagraph (i); or
(B) a
declaration, in a form approved by the Commissioner, that purports to set out
the holding period and includes a statement by the recipient that the average
number of business kilometres per week travelled by the car during the holding
period exceeded 96;
the taxable value, but for Division 14, of the
expense payment fringe benefit in relation to the year of tax is the amount
calculated in accordance with the formula:
where:
TV is the amount that, but for this
subsection and Division 14, would be the taxable value of the expense
payment fringe benefit in relation to the year of tax; and
ND is:
(g) if neither paragraph (ea) nor
paragraph (f) applies and paragraph (l) does not apply—the notional
deduction; or
(h) if paragraph (ea) applies and
paragraph (l) does not apply—whichever of the following amounts is
applicable:
(i) if it would be
concluded that the amount of the providers portion would have been the same
even if the recipients expenditure were not incurred in producing assessable
income of the recipient—the business use percentage of the amount that, but for
this subsection and Division 14, would be the taxable value of the expense
payment fringe benefit in relation to the year of tax;
(ii) if subparagraph (i)
does not apply:
(A) in the
case of an in‑house expense payment fringe benefit—the business use
percentage of the amount that, but for this subsection and Division 14 and
the recipients contribution, would be the taxable value of the expense payment
fringe benefit in relation to the year of tax; or
(B) in the
case of an external expense payment fringe benefit—the business use percentage
of the recipients expenditure; or
(j) where:
(i) paragraph (f)
applies; and
(ii) a declaration referred
to in subparagraph (f)(i) has been given to the employer; and
(iia) paragraph (l) does
not apply;
whichever of the following
amounts is the least:
(iii) the notional
deduction;
(iv) if it would be
concluded that the amount of the providers portion would have been the same
even if the recipients expenditure were not incurred in producing assessable
income of the recipient—33% of the
amount that, but for this subsection and Division 14, would be the taxable
value of the expense payment fringe benefit in relation to the year of tax;
(v) if subparagraph (iv)
does not apply:
(A) in the
case of an in‑house expense payment fringe benefit—33% of the amount that but for
this subsection and Division 14 and the recipients contribution, would be
the taxable value of the expense payment fringe benefit in relation to the year
of tax; or
(B) in the
case of an external expense payment fringe benefit—33% of the recipients
expenditure; or
(k) where:
(i) subparagraph (f)(ii)
applies; and
(ii) a declaration referred
to in subparagraph (f)(i) has not been given to the employer; and
(iia) paragraph (l) does
not apply;
whichever of the following
amounts is applicable:
(iii) if it would be
concluded the amount of the providers portion would have been the same even if
the recipients expenditure were not incurred in producing assessable income of
the recipient—33% of the amount
that, but for this subsection and Division 14, would be the taxable value
of the expense payment fringe benefit in relation to the year of tax;
(iv) if subparagraph (iii)
does not apply:
(A) in the
case of an in‑house expense payment fringe benefit—33% of the amount that, but
for this Subdivision and Division 14 and the recipients contribution,
would be the taxable value of the expense payment fringe benefit in relation to
the year of tax; or
(B) in the
case of an external expense payment fringe benefit—33% of the recipients
expenditure; or
(l) if, under subsection 138(3), the
expense payment fringe benefit is deemed to have been provided to the recipient
only—the amount calculated in accordance with subsection (9).
(2) For the purposes of the application of
this section in relation to a fringe benefit, where the recipient:
(a) while undertaking travel referred
to in paragraph (1)(d), engages in an activity in the course of producing
assessable income of the recipient; and
(b) does not make, as mentioned in the
definition of travel diary in subsection 136(1), an entry
relating to the activity, being an entry of the kind referred to in that
definition;
the activity shall be deemed not to have been engaged in
by the recipient in the course of producing assessable income.
(3) Where the
sum of:
(a) the recipients expenditure in
respect of a small expense payment fringe benefit in relation to an employee in
relation to an employer in relation to a year of tax; and
(b) the total of the recipients
expenditure in respect of all other small expense payment fringe benefits in
relation to the employer in relation to the employee in relation to the year of
tax, being fringe benefits provided before the fringe benefit referred to in paragraph (a);
does not exceed $200, the fringe benefit referred to in paragraph (a)
is an eligible small expense payment fringe benefit.
(3A) For the purposes of this section, where the
Commissioner is satisfied, having regard to the nature of the recipients
expenditure in respect of an expense payment fringe benefit, that it would be
unreasonable to expect the recipient to have obtained documentary evidence of
the recipients expenditure, the expense payment fringe benefit shall be deemed
to be, and always to have been, an undocumentable expense payment fringe
benefit.
(4) For the purposes of paragraph (1)(c),
the part of a petty cash book or similar document that sets out the particulars
that would be set out in documentary evidence of the recipients expenditure
(other than particulars of the date on which the documentary evidence was made
out) is taken to be substitute documentary evidence of the recipients
expenditure. The entry must be in English.
(5) Where:
(a) the recipients expenditure in
relation to each of 2 or more expense payment fringe benefits (whether or not
in relation to the same year of tax) is the same expenditure; and
(b) paragraph (1)(b) applies in
relation to the recipients expenditure;
this Act applies, and shall be deemed always to have
applied, as if all the payments or reimbursements to which those fringe
benefits relate had been made at the time when the first of those payments or
reimbursements was made and not otherwise, and nothing in section 74
prevents the amendment of an assessment for the purpose of giving effect to
this subsection.
(6) For the purposes of the application of
this section to an in‑house expense payment fringe benefit, a reference
to the recipients contribution in relation to the fringe benefit is a reference
to the amount ascertained under whichever of paragraphs 22A(1)(b) or (2)(b) is
applicable.
(7) Where:
(a) apart from this subsection, paragraph (1)(ea)
applies in relation to a fringe benefit in relation to an employer in respect
of a car held by the recipient during a period in a year of tax; and
(b) whichever of the following amounts
is the greater exceeds the amount that, apart from this subsection, would be
ascertained under paragraph (1)(h) as representing the component ND in the
formula in subsection (1):
(i) in all cases—the
amount that would have been ascertained under paragraph (1)(j) as representing
that component if:
(A) paragraph (1)(f)
had applied in relation to the fringe benefit; and
(B) a
declaration of the kind referred to in subparagraph (1)(f)(i) had been
given to the employer;
(ii) in a case where the
average number of business kilometres per week travelled by the car during the
holding period exceeded 96—the amount that would have been ascertained under paragraph (1)(k)
as representing that component if:
(A) subparagraph (1)(f)(ii)
had applied in relation to that fringe benefit; and
(B) a
declaration of the kind referred to in subparagraph (1)(f)(i) had not been
given to the employer; and
(C) a
declaration of the kind referred to in sub-subparagraph (1)(f)(ii)(B) had
been given to the employer;
this Act applies, and shall be deemed always to have
applied, as if the amount represented by that component had been calculated as mentioned
in whichever of subparagraphs (b)(i) or (ii) of this subsection is
applicable.
(8) Nothing in section 74 prevents the
amendment of an assessment for the purpose of giving effect to subsection (7).
(9) For the purposes of paragraph (1)(l)
(which applies to an expense payment fringe benefit that, under subsection
138(3), is deemed to have been provided to an employee only), the amount is
calculated in accordance with the formula:
where:
employee’s percentage of interest:
(a) is the percentage of the interest
held by the employee, during a period (in this subsection called the holding
period) in the year of tax, in the asset or other thing that:
(i) relates to the matter
in respect of which the expense payment fringe benefit is provided; and
(ii) is applied or used for
the purpose of producing assessable income of the employee; and
(b) does not include the percentage of
the interest held in that asset or other thing by the employee’s associate or
associates during the holding period.
unadjusted ND is the amount that would be
ascertained as representing the component ND in the formula in
subsection (1) if paragraph (1)(l) did not apply in relation to the
expense payment fringe benefit.
Division 6—Housing fringe benefits
Subdivision A—Housing benefits
25
Housing benefits
The subsistence during the whole or a
part of a year of tax of a housing right granted by a person (in this section
referred to as the provider) to another person (in this section
referred to as the recipient) shall be taken to constitute a
benefit provided by the provider to the recipient in respect of the year of
tax.
Subdivision B—Taxable value of housing fringe benefits
26
Taxable value of non‑remote housing fringe benefits
(1) Subject to this Part, the taxable value
of a housing fringe benefit provided in respect of the employment of an
employee in relation to a year of tax is:
(a) where the recipients unit of
accommodation is not located in a State or internal Territory—so much of the
market value of the recipients current housing right as exceeds the recipients
rent;
(b) where:
(i) paragraph (a)
does not apply;
(ii) the recipients unit of
accommodation is a caravan or mobile home or is in a hotel, motel, hostel or
guesthouse; and
(iii) during the whole or a
part of the tenancy period, the provider carried on a business consisting of or
including the provision to outsiders, in respect of identical or similar
caravans or mobile homes or in respect of identical or similar units of
accommodation in the hotel, motel, hostel or guesthouse, of leases or licences
that are identical or similar to the recipients overall housing right;
the amount calculated in
accordance with the formula AB, where:
A is the market
value of the recipients current housing right; and
B is:
(iv) in a case where, if the
fringe benefit were not a housing fringe benefit, it would be an in‑house
residual fringe benefit—0.75; and
(v) in any other case—1;
reduced by the recipients rent;
and
(c) in any other case—the amount
calculated in accordance with the formula:
where:
A is the statutory
annual value of the recipients current housing right;
B is the number of
whole days in the tenancy period; and
C is the number of
days in the year of tax;
reduced by the recipients rent.
(2) For the purposes of the application of subsection (1)
in relation to a housing fringe benefit in relation to an employer in relation
to a year of tax (in this subsection referred to as the current year of
tax), the statutory annual value of the recipients current housing
right is:
(a) if the current year of tax is a
base year of tax in relation to the recipients current housing right—the amount
calculated in accordance with the formula:
where:
A is the market
value of the recipients current housing right;
B is the number of
days in the current year of tax; and
C is the number of
whole days in the tenancy period; and
(b) in any other case—the amount
ascertained in accordance with the formula AB, where:
A is:
(i) if the year of tax
immediately preceding the current year of tax was a base year of tax for the
purpose of calculating the taxable value of:
(A) a
housing fringe benefit in relation to the employer in respect of the recipients
overall housing right or in respect of an equivalent housing right; or
(B) each of
2 or more such housing fringe benefits;
the statutory annual
value for the purposes of calculating the taxable value of the fringe benefit
referred to in sub-subparagraph (A) or the weighted average of the
statutory annual values for the purpose of calculating the taxable values of
the housing fringe benefits referred to in sub-subparagraph (B) (those
statutory annual values being weighted on the basis of the lengths of the
respective periods during that preceding year of tax during which the housing
rights to which those housing fringe benefits relate subsisted), as the case
may be; and
(ii) in any other case—the
statutory annual value for the purpose of calculating the taxable values of
housing fringe benefits in relation to the employer in relation to the year of
tax immediately preceding the current year of tax, being housing fringe
benefits in respect of the recipients overall housing right or equivalent
housing rights; and
B is the
indexation factor in respect of the current year of tax in respect of the State
or Territory in which the recipients unit of accommodation is situated.
(3) For the purposes of the application of subsection (2)
in relation to a housing fringe benefit in relation to an employer in relation
to a year of tax (in this subsection referred to as the current year of
tax), the current year of tax is a base year of tax in relation to the
recipients current housing right if:
(aa) the employer elects that the
current year of tax be treated as a base year of tax in relation to the
recipients overall housing right or an equivalent housing right;
(b) there was no housing fringe
benefit, in relation to the employer in relation to the year of tax immediately
preceding the current year of tax, in respect of the recipients overall housing
right or in respect of an equivalent housing right; or
(c) the following conditions are
satisfied:
(i) in relation to each of
the 9 years of tax immediately preceding the current year of tax there was a
housing fringe benefit in relation to the employer in respect of the recipients
overall housing right or an equivalent housing right;
(ii) none of those 9 years
of tax was a base year of tax for the purpose of calculating the taxable value
of a housing fringe benefit to which subparagraph (i) applies.
(4) For the purposes of this section:
(a) 2 or more housing rights shall be
taken to be included in the same class of housing rights if:
(i) the housing rights are
in respect of the same unit of accommodation; and
(ii) the conditions (other
than as to duration or consideration) of the housing rights are the same or
substantially the same; and
(b) a housing right shall be taken to
be equivalent to another housing right if each of those housing rights is
included in the same class of housing rights.
(5) For the purposes of this section, where a
material alteration to a unit of accommodation results in an increase or
decrease of not less than 10% in the market value of the right to occupy or use
the unit:
(a) the unit of accommodation after
the alteration shall be deemed to be a different unit of accommodation from the
unit of accommodation before the alteration; and
(b) if the alteration occurs during
the subsistence of a housing right granted to a person in respect of the unit
of accommodation, that housing right, as it subsists after the alteration,
shall be deemed to have been granted to the person in respect of the unit of
accommodation as it existed after the alteration and to have been so granted in
the same circumstances as the first‑mentioned housing right.
(6) A reference in subsection (5) to a
material alteration to a unit of accommodation is a reference to:
(a) additions or improvements made to,
or other work carried out in relation to;
(b) any damage to; or
(c) the addition of facilities to, or
the removal of facilities from;
the unit of accommodation or any building, place or
facility associated with the occupation or use of the unit of accommodation.
(7) An election by an employer under paragraph (3)(aa)
in relation to a year of tax:
(a) shall be made by notice in writing
to the Commissioner; and
(b) shall be lodged with the
Commissioner on or before the declaration date in relation to the year of tax.
27
Determination of market value of housing right
(1) For the purposes of determining the
market value of the recipients current housing right in relation to a housing
fringe benefit, where the recipient is entitled, pursuant to the housing right,
to require a second person to:
(a) make a payment in discharge, in
whole or in part, of an obligation of the recipient to pay an amount to a third
person in respect of expenditure incurred by the recipient; or
(b) to reimburse the recipient, in
whole or in part, in respect of an amount of expenditure incurred by the
recipient;
that entitlement shall be disregarded.
(2) For the purposes of determining the
market value of the recipients current housing right in relation to a housing
fringe benefit provided in respect of the employment of an employee, any
onerous conditions that are attached to the housing right and that relate to
his or her employment shall be disregarded.
28
Indexation factor for valuation purposes—non‑remote housing
(1) For the
purposes of section 26, the indexation factor in respect of a year of tax
(in this subsection referred to as the current year of tax) in
respect of a State or Territory is the number (calculated to 3 decimal places)
ascertained, as at the date on which the rent index number in respect of the
State or Territory for the December quarter immediately preceding the current
year of tax was first published, by dividing the sum of:
(a) the rent index number in respect
of the State or Territory in respect of the December quarter immediately
preceding the current year of tax; and
(b) the rent index numbers in respect
of the State or Territory in respect of the 3 quarters that immediately
preceded that quarter;
by the sum of:
(c) the rent index number in respect
of the State or Territory in respect of the December quarter immediately
preceding the year of tax that next preceded the current year of tax; and
(d) the rent index numbers in respect
of the State or Territory in respect of the 3 quarters that immediately
preceded the last‑mentioned quarter.
(2) Subject to subsection (3), if at any
time, whether before or after the commencement of this section, the Australian
Statistician has published or publishes a rent index number in respect of a
State or Territory in respect of a quarter in substitution for a rent index
number in respect of the State or Territory previously published in respect of
that quarter, the publication of the later rent index number shall be
disregarded for the purposes of this section.
(3) If at any time, whether before or after
the commencement of this section, the Australian Statistician has changed or
changes the reference base for the rent sub‑group of the Consumer Price
Index, then, for the purposes of the application of this section after the
change took place or takes place, regard shall be had only to the index numbers
published in terms of the new reference base.
(4) Where the factor ascertained in
accordance with subsection (1) in relation to a year of tax would, if it
were calculated to 4 decimal places, end with a number greater than 4, the
factor ascertained in accordance with that subsection in relation to that year
of tax shall be taken to be the factor calculated to 3 decimal places in
accordance with that subsection and increased by 0.001.
(5) For the purposes of this Subdivision:
(a) the Jervis Bay Territory shall be
deemed to be part of the State of New South Wales; and
(b) the Territory of Christmas Island
and the Territory of Cocos (Keeling) Islands shall be deemed to be part of the Northern
Territory.
Division 7—Living‑away‑from‑home allowance fringe
benefits
Subdivision A—Living‑away‑from‑home allowance benefits
30
Living‑away‑from‑home allowance benefits
(1) Where:
(a) at a particular time, in respect
of the employment of an employee of an employer, the employer pays an allowance
to the employee; and
(b) it would be concluded that the
whole or a part of the allowance is in the nature of compensation to the
employee for:
(i) additional expenses
(not being deductible expenses) incurred by the employee during a period; or
(ii) additional expenses
(not being deductible expenses) incurred by the employee, and other additional
disadvantages to which the employee is subject, during a period;
by reason that the employee is
required to live away from his or her usual place of residence in order to
perform the duties of that employment;
the payment of the whole, or of the part, as the case may
be, of the allowance constitutes a benefit provided by the employer to the
employee at that time.
(2) If:
(a) at a particular time after 10 October 1991, in respect of the employment of an employee of an employer, the
employer pays an allowance to the employee; and
(b) the employee’s usual place of
employment is on an oil rig, or other petroleum or gas installation, at sea;
and
(c) the employee is provided with
residential accommodation at or near that usual place of employment; and
(d) the allowance is expressed to be
paid as a living‑away‑from‑home allowance; and
(e) no part of the allowance is
covered by subsection (1); and
(f) it would be concluded that the
whole or a part of the allowance is in the nature of compensation to the
employee for disadvantages to which the employee is subject, during a period,
by reason that the employee is required to live away from his or her usual
place of residence in order to perform the duties of that employment;
the payment of the whole of the allowance constitutes a
benefit provided by the employer to the employee at that time.
Subdivision B—Taxable value of living‑away‑from‑home
allowance fringe benefits
31
Taxable value of living‑away‑from‑home allowance fringe
benefits
Subject to this Part, the taxable value
of a living‑away‑from‑home allowance fringe benefit in
relation to a year of tax is:
(a) if the fringe benefit is covered
by subsection 30(1)—the amount of the recipients allowance reduced by:
(i) any exempt
accommodation component; and
(ii) any exempt food
component; or
(b) if the fringe benefit is covered
by subsection 30(2)—the amount of the recipients allowance.
Division 8—Airline transport fringe benefits
Subdivision A—Airline transport benefits
32
Airline transport benefits
Where:
(a) in respect of the employment of an
employee of an employer, a person (in this section referred to as the provider)
provides transport, in a passenger aircraft of the provider, to another person
(in this section referred to as the recipient), being the
employee or an associate of the employee;
(b) at or about the time when that
transport commences to be provided:
(i) the provider is an
airline operator; and
(ii) either of the following
conditions is satisfied:
(A) the
employer, or an associate of the employer, is an airline operator;
(B) the
employer is a travel agent; and
(c) the transport is provided subject
to the stand‑by restrictions that customarily apply in relation to the provision
of airline transport to employees in the airline industry;
the provision of that transport and any incidental
services provided on board the aircraft shall be deemed to constitute a benefit
provided by the provider to the recipient at the time when the transport
commences to be provided, and not otherwise.
Subdivision B—Taxable value of airline transport fringe benefits
33
Taxable value of airline transport fringe benefits
Subject to this Part, the taxable value
of an airline transport fringe benefit in relation to a year of tax is the
stand‑by value of the recipients transport reduced by the amount of the
recipients contribution.
34
Reduction of taxable value—otherwise deductible rule
(1) Where:
(a) the recipient of an airline
transport fringe benefit in relation to an employer in relation to a year of
tax is an employee of the employer;
(b) if the recipient had, at the
comparison time, incurred and paid unreimbursed expenditure (in this subsection
called the gross expenditure), in respect of the provision of the
recipients transport, equal to the amount that, but for this subsection and
Division 14 and the recipients contribution, would be the taxable value of
the airline transport fringe benefit in relation to the year of tax—a once‑only
deduction (in this subsection called the gross deduction) would,
or would but for section 82A of the Income Tax Assessment Act 1936,
and Divisions 28 and 900 of the Income Tax Assessment Act 1997,
have been allowable to the recipient under either of those Acts in respect of
the gross expenditure;
(ba) the amount (in this subsection
called the notional deduction) calculated in accordance with the
formula:
where:
GD is the gross
deduction; and
RD is:
(i) if there is no
recipients contribution in relation to the airline transport fringe
benefit—nil; or
(ii) if there is a
recipients contribution in relation to the airline transport fringe benefit
equal to, or calculated by reference to, an amount of consideration paid by the
recipient to the provider or to the employer in respect of the provision of the
recipients transport—the amount (if any) that would, or that would but for
section 82A of the Income Tax Assessment Act 1936, and Divisions 28
and 900 of the Income Tax Assessment Act 1997, have been allowable as a
once‑only deduction to the recipient under either of those Acts in
respect of that consideration if that consideration had been incurred and paid
by the recipient at the comparison time;
exceeds nil;
(c) except where the fringe benefit
is:
(i) an exclusive employee
airline transport benefit; or
(ii) an extended travel
airline transport benefit;
the recipient gives to the
employer, before the declaration date, a declaration, in a form approved by the
Commissioner, in respect of the recipients transport; and
(d) where the fringe benefit is an
extended travel airline transport benefit—the recipient gives to the employer,
before the declaration date, a travel diary in relation to the travel
undertaken by the recipient in connection with the recipients transport;
the amount that, but for this subsection and Division 14,
would be the taxable value of that fringe benefit in relation to the year of
tax shall be reduced by the notional deduction.
(2) For the purposes of the application of
this section in relation to a fringe benefit, where the recipient:
(a) while undertaking travel referred
to in paragraph (1)(d), engages in an activity in the course of producing
assessable income of the recipient; and
(b) does not make, as mentioned in the
definition of travel diary in subsection 136(1), an entry
relating to the activity, being an entry of the kind referred to in that
definition;
the activity shall be deemed not to have been engaged in
by the recipient in the course of producing assessable income.
Division 9—Board fringe benefits
Subdivision A—Board benefits
35
Board benefits
Where, at a particular time, a person
(in this section referred to as the provider) provides a board
meal to another person (in this section referred to as the recipient),
the provision of the meal shall be taken to constitute a benefit provided by
the provider to the recipient at that time.
Subdivision B—Taxable value of board fringe benefits
36
Taxable value of board fringe benefits
Subject to this Part, the taxable value
of a board fringe benefit in relation to a year of tax is:
(a) in a case where the recipient had
attained the age of 12 years before the beginning of the year of tax—$2.00; or
(b) in any other case—$1.00;
reduced by the amount of the recipients contribution.
37
Reduction of taxable value—otherwise deductible rule
Where:
(a) the recipient of a board fringe
benefit in relation to an employer in relation to a year of tax is an employee
of the employer;
(b) if the recipient had, at the time
when the benefit was provided, incurred and paid unreimbursed expenditure (in
this section called the gross expenditure), in respect of the
provision of the recipients meal, equal to the amount that, but for this
subsection and Division 14 and the recipients contribution, would be the
taxable value of the board fringe benefit in relation to the year of tax—a
deduction (in this section called the gross deduction) would, or
would but for section 82A of the Income Tax Assessment Act 1936,
and Divisions 28 and 900 of the Income Tax Assessment Act 1997,
have been allowable to the recipient section 8‑1 of the Income
Tax Assessment Act 1997 in respect of the whole or a part of the gross
expenditure; and
(c) the amount (in this section called
the notional deduction) calculated in accordance with the
formula:
where:
GD is the gross
deduction; and
RD is:
(i) if there is no
recipients contribution in relation to the board fringe benefit—nil; or
(ii) if there is a
recipients contribution in relation to the board fringe benefit equal to, or
calculated by reference to, an amount of consideration paid by the recipient to
the provider or to the employer in respect of the provision of the recipients
meal—the amount (if any) that would, or that would but for section 82A of
the Income Tax Assessment Act 1936, and Divisions 28 and 900 of the
Income Tax Assessment Act 1997, have been allowable to the recipient section 8‑1
of the Income Tax Assessment Act 1997 in respect of the whole or a part
of that consideration if that consideration had been incurred and paid by the
recipient at the time when the benefit was provided;
exceeds nil;
the amount that, but for this section and Division 14,
would be the taxable value of that fringe benefit in relation to the year of
tax shall be reduced by the notional deduction.
Division 9A—Meal entertainment
Subdivision A—Meal entertainment
37A
Key principle
An employer may elect that this
Division will apply to the employer for an FBT year. If the employer does this,
the taxable value of meal entertainment fringe benefits provided to the
employer’s employees and associates of those employees by the employer will
either be half the expenses incurred for the FBT year by the employer in
providing meal entertainment benefits or, if the employer makes a further
election, an amount worked out based on a 12 week register kept by the
employer.
37AA
Division only applies if election made
An employer may elect that this Division
applies to the employer for an FBT year.
37AB
Employee contributions to be excluded
For the purposes of this Division any
reference to expenses or expenditure in relation to meal entertainment or meal
entertainment benefits excludes any contribution from an employee or an
associate of an employee that is not subject to reimbursement by the employer.
37AC
Meal entertainment benefits
Where at a particular time an employer
(the provider) to whom this Division applies provides meal
entertainment to another person (the recipient) the provision of
the meal entertainment is taken to constitute a meal entertainment benefit
provided by the provider to the recipient at that time.
37AD
Meaning of provision of meal entertainment
A reference to the provision of
meal entertainment is a reference to the provision of:
(a) entertainment by way of food or
drink; or
(b) accommodation or travel in
connection with, or for the purpose of facilitating, entertainment to which paragraph (a)
applies; or
(c) the payment or reimbursement of
expenses incurred in providing something covered by paragraph (a) or (b);
whether or not:
(d) business discussions or business
transactions occur; or
(e) in connection with the working of
overtime or otherwise in connection with the performance of the duties of any
office or employment; or
(f) for the purposes of promotion or
advertising; or
(g) at or in connection with a
seminar.
37AE
Fringe benefits only arise if employer is provider
No meal entertainment fringe benefit
arises where the employer in relation to whom the benefit would otherwise arise
is not the provider of the benefit.
37AF
No other fringe benefits arise if election made
If a meal entertainment fringe benefit
arises in respect of the provision of meal entertainment, no other fringe
benefit arises in relation to any person in respect of the provision of the
meal entertainment.
37AG
Some benefits still arise
To avoid doubt, sections 37AE and
37AF do not prevent a fringe benefit in relation to an employer arising under
any provision of this Act where the employer is not the provider of the benefit.
Subdivision B—50/50 split method of valuing meal entertainment
37B
Key principle
If an employer elects that this
Division applies, then (unless the employer elects that Subdivision C applies)
the taxable value of meal entertainment fringe benefits provided to the
employer’s employees and associates of those employees by the employer is half
the expenses incurred for the FBT year by the employer in providing meal
entertainment benefits.
37BA
Taxable value using 50/50 split method
If this Division applies to an employer
for an FBT year then, unless the employer elects that Subdivision C applies,
the total taxable value of meal entertainment fringe benefits of the employer
for the FBT year is 50% of the expenses incurred by the employer in providing meal
entertainment for the FBT year.
Note: This means that the employer’s aggregate
fringe benefits amount (see section 5C) for the FBT year will
include 50% of the total expenses incurred by the employer for the provision of
meal entertainment to all persons in the FBT year.
Subdivision C—12 week register method
37C
Key principle
If an employer elects that this
Subdivision applies, the taxable value of meal entertainment fringe benefits is
to be calculated by reference to a 12 week register kept by the employer.
37CA
Election by employer
An employer who elects that this
Division applies may elect also that this Subdivision applies to meal
entertainment provided by the employer for an FBT year if the employer has a
valid meal entertainment register for that year.
37CB
Taxable value using 12 week register method
(1) If the employer elects that this
Subdivision applies for an FBT year then, despite any other provision of this
Act, the taxable value of meal entertainment fringe benefits for the employer
for the FBT year is worked out using the formula:
Note: This means that the employer’s aggregate
fringe benefits amount (see section 5C) for the FBT year
will include a proportion of the expenses incurred by the employer for the
provision of meal entertainment for all persons in the FBT year. The proportion
is worked out on the basis of the 12 week register.
(2) The register percentage is
the percentage worked out using the formula:
where:
total value of meal entertainment fringe benefits
means the total value of meal entertainment fringe benefits that are
provided by the employer in the 12 week period covered by the employer’s
register.
total value of meal entertainment means the
total value of meal entertainment provided by the employer during the 12 week
period covered by the register.
(3) The total meal entertainment
expenditure is the total of expenses incurred by the employer in
providing meal entertainment for the FBT year.
37CC
Choosing the 12 week period for a register
(1) The register must be kept for a
continuous period of at least
12 weeks throughout which meal entertainment is provided by the employer.
(2) The period for which the register is kept
must be representative of the first FBT year for which it is valid.
(3) If the register does not meet these
conditions it is not valid.
37CD
FBT years for which register is valid
12 week period in one FBT year
(1) If the 12 week period begins and ends in
the same FBT year, the register is valid for that FBT year and, subject to subsection (3),
for each of the 4 FBT years immediately following that year.
12 week period over 2 FBT years
(2) If the 12 week period begins in one FBT
year and ends in another FBT year, the register is only valid for the second
FBT year and, subject to subsection (3), for each of the 4 FBT years
immediately following that year.
When register ceases to be valid
(3) A register that is valid for an FBT year
ceases to be valid at the end of that FBT year if the total of expenses
incurred by the employer in providing meal entertainment for that FBT year is
more than 20% higher than the corresponding total for the first FBT year for
which the register was valid. A register also ceases to be valid for an FBT
year if there is a later valid register for that FBT year.
37CE
Matters to be included in register
(1) The register must include the details of
the following:
(a) the date the employer provided
meal entertainment;
(b) for each recipient of meal
entertainment—whether the recipient is an employee of the employer or an associate
of an employee of the employer;
(c) the cost of the meal
entertainment;
(d) the kind of meal entertainment
provided;
(e) where the meal entertainment is
provided;
(f) if the meal entertainment is
provided on the employer’s premises—whether it is provided in an in‑house
dining facility within the meaning of section 32‑55
of the Income Tax Assessment Act 1997.
(2) A person responsible for making entries
in the register must make the entry as soon as practicable after he or she
knows the details required by subsection (1).
37CF
False or misleading entries invalidate register
For the purposes of this Act, a register
is not valid if the register contains an entry that is false or misleading in a
material particular.
Division 10—Tax‑exempt body entertainment fringe benefits
Subdivision A—Tax‑exempt body entertainment benefits
38 Tax‑exempt
body entertainment benefits
Where, at a particular time, a person
(in this section referred to as the provider) incurs non‑deductible
exempt entertainment expenditure that is wholly or partly in respect of the
provision, in respect of the employment of an employee, of entertainment to a
person (in this section referred to as the recipient) being the
employee or an associate of the employee, the incurring of the expenditure
shall be taken to constitute a benefit provided by the provider to the
recipient at that time in respect of that employment.
Subdivision B—Taxable value of tax‑exempt body entertainment fringe
benefits
39
Taxable value of tax‑exempt body entertainment fringe benefits
Subject to this Part, the taxable value
of a tax‑exempt body entertainment fringe benefit in relation to an
employer in relation to a year of tax is so much of the expenditure referred to
in section 38 as is attributable to the provision of the entertainment
referred to in that section.
Division 10A—Car parking fringe benefits
Subdivision A—Car parking benefits
39A
Car parking benefits
(1) If the following conditions are satisfied
in relation to a daylight period, or a combination of daylight periods, on a
particular day:
(a) during the period or periods, a
car is parked on one or more premises of a person (the provider),
where:
(i) the premises, or each
of the premises, on which the car is parked are business premises, or associated
premises, of the provider; and
(ii) a commercial parking
station is located within a 1 km radius of the premises, or each of the
premises, on which the car is parked; and
(iii) the lowest fee charged
by the operator of any such commercial parking station in the ordinary course
of business to members of the public for all‑day parking on the first
business day of the FBT year is more than the car parking threshold;
(b) the total duration of the period
or periods exceeds 4 hours;
(c) any of the following applies:
(i) a car benefit relating
to the car is provided on that day to an employee or an associate of an
employee in respect of the employment of the employee;
(ii) the car is owned by,
or leased to, an employee or an associate of an employee at any time during the
period or periods;
(iii) the car is made
available to an employee or an associate of an employee at any time during the
period or periods by another person, where:
(A) the
other person is neither the employer of the employee nor an associate of the
employer of the employee; and
(B) the
other person did not make the car available under an arrangement to which the
employer of the employee, or an associate of the employer of the employee, is a
party;
(d) the provision of parking facilities
for the car during the period or periods is in respect of the employment of the
employee;
(e) on that day, the employee has a
primary place of employment;
(f) during the period or periods, the
car is parked at, or in the vicinity of, that primary place of employment;
(g) on that day, the car is used in
connection with travel by the employee between:
(i) the place of residence
of the employee; and
(ii) that primary place of
employment;
(h) the provision of parking
facilities for the car during the period or periods is not taken, under the
regulations, to be excluded from this section;
(i) the day is on or after 1 July 1993;
the provision of parking facilities for the car during the
period or periods is taken to constitute a benefit provided by the provider to
the employee or the associate of the employee in respect of the employment of
the employee.
(2) For the purposes of this section:
(a) the carparking threshold for the
FBT year beginning on 1 April 1995 is $5.00; and
(b) for later years the carparking
threshold is the threshold for the previous FBT year as adjusted on the first
business day of the later FBT year by a factor equivalent to the movement in
the preceding twelve months in the All Groups Consumer Price Index number
(being the weighted average of the 8 capital cities) published by the
Australian Statistician.
(2A) However, the factor mentioned in paragraph (2)(b)
is taken to be 1 if the movement described in that paragraph is down.
(3) Subject to subsection (4), if at any
time, whether before or after the commencement of this Act, the Australian
Statistician has published or publishes an index number in respect of a quarter
in substitution for an index number previously published by the Australian
Statistician in respect of that quarter, the publication of the later index
number is to be disregarded for the purposes of this section.
(4) If at any time, whether before or after
the commencement of this section, the Australian Statistician has changed or
changes the reference base for the Consumer Price Index, then, for the purposes
of the application of this section after the change, regard is to be had only
to the index numbers published in terms of the new reference base.
39AA
Anti‑avoidance—fee on first business day not representative
For the purposes of subparagraph
39A(1)(a)(iii), any fee charged on the first business day of an FBT year that
is not representative is to be disregarded.
39AB
When fees are not representative
A fee charged by an operator of a
commercial parking station on a particular day is not representative
if the fee is substantially greater or less than the average of the lowest
fee charged by the operator in the ordinary course of business to members of
the public for all‑day parking on each of the days in whichever of the
following periods is chosen by the employer:
(a) the 4 week period beginning on the
day; or
(b) the 4 week period ending on the
day.
39B
When commercial parking stations are located within a 1 km radius of business
premises or associated premises
For the purposes of this Division, a
commercial parking station is taken to be located within a 1 km radius of
particular business premises or particular associated premises if, and only if,
a car entrance to the commercial parking station is situated less than 1 km, by
the shortest practicable route, from a car entrance to those premises.
Subdivision B—Taxable value of car parking fringe benefits
39C
Taxable value of car parking fringe benefits—commercial parking station
method
Subject to this Part, the taxable value,
in relation to an FBT year, of a car parking fringe benefit provided on a day
in the FBT year in connection with one or more premises is equal to:
(a) if, on that day, there is only one
commercial parking station located within a 1 km radius of any of those
premises—the lowest fee charged by the operator of the parking station in the
ordinary course of business to members of the public for all‑day parking
on that day; or
(b) if, on that day, there are 2 or
more commercial parking stations located within a 1 km radius of any of those
premises—the lowest fee charged by any of the operators of those parking
stations in the ordinary course of business to members of the public for all‑day
parking on that day;
reduced by the amount of the recipients contribution.
39D
Taxable value of car parking fringe benefits—market value basis
[Employer may choose market value basis]
(1) An employer may elect that this section
apply in relation to any or all of the car parking fringe benefits in relation
to the employer in relation to a particular FBT year.
[Market value basis of working out taxable value]
(2) Subject to this Part, if an election is
made under subsection (1) in relation to a car parking fringe benefit
provided on a day in an FBT year, the taxable value, in relation to the FBT
year, of the fringe benefit is:
(a) the amount that the recipient
could reasonably be expected to have been required to pay the provider in
respect of the provision of the benefit if it were assumed that the provider
and the recipient were dealing with each other at arm’s length;
reduced by:
(b) the amount of the recipients
contribution.
[Valuer’s report must be given to employer]
(3) An election purporting to be made under subsection (1)
in relation to one or more car parking fringe benefits is of no effect unless:
(a) a suitably qualified valuer gives
to the employer, before the declaration date, a report, in a form approved by
the Commissioner, about the valuation of the fringe benefits; and
(b) the valuer is at arm’s length in
relation to the valuation; and
(c) the return of the employer of the
FBT year, in so far as it relates to the taxable values of the fringe benefits,
is based on the report.
39DA
Taxable value of car parking fringe benefits—average cost method
Election
(1) An employer may elect that this section
applies to any or all of the employer’s car parking fringe benefits for a
particular FBT year.
Taxable value
(2) Subject to this Part, if an election
covers a car parking fringe benefit, the taxable value of the fringe benefit is
the average cost worked out under subsection (3) reduced by the recipients
contribution.
Method of working out average cost
(3) The average cost is:
where:
A is the lowest fee charged in the ordinary
course of business to members of the public for all‑day parking by any
operator of a commercial parking station located within a 1 km radius of any of
the relevant parking premises on the day on which a car parking benefit is
first provided in that FBT year in relation to the employer in connection with
any of those premises.
B is the lowest fee charged in the ordinary
course of business to members of the public for all‑day parking by any
operator of a commercial parking station located within a 1 km radius of any of
the relevant parking premises on the day on which a car parking benefit is last
provided in that FBT year in relation to the employer in connection with any of
those premises.
relevant parking premises means the premises
referred to in paragraph 39A(1)(a).
Fees must be representative
(4) An election is of no effect if the fees
referred to in subsection (3) are not representative (see
section 39AB).
39E
Fees charged by commercial parking stations for all‑day parking
[Daily rate equivalent for periodic parking
arrangements]
(1) For the purposes of this Division, if the
operator of a commercial parking station provides all‑day parking in the
ordinary course of business to members of the public on a weekly, monthly,
yearly or other periodic basis, the operator is taken to charge a fee for all‑day
parking on a particular day during the period equal to the amount worked out
using the formula:
where:
Total fee is the total fee charged by the
operator in respect of all‑day parking on days in that period.
Business days in period means the number of
business days in that period.
[Anti‑avoidance]
(2) If either
or both of the following apply:
(a) a transaction between the operator
of a commercial parking station and a customer is not at arm’s length;
(b) the operator of a commercial
parking station sets the level of a fee for the sole or dominant purpose of
enabling one or more employers to obtain reductions in the taxable values of
car parking fringe benefits;
then, for the purposes of this Subdivision:
(c) if only paragraph (a)
applies—it is to be assumed that the fee is the fee that would have been
payable if the operator and the customer had been dealing with each other at
arm’s length in relation to the transaction; and
(d) if only paragraph (b) applies—it
is to be assumed that the fee is the fee that would have been payable if it had
been set without that purpose in mind; and
(e) if both paragraphs (a) and
(b) apply—it is to be assumed that the fee is the fee that would have been
payable if:
(i) the operator and the
customer had been dealing with each other at arm’s length in relation to the
transaction; and
(ii) it had been set
without that purpose in mind.
Subdivision C—Statutory formula method—spaces
39F
The key principle
Under this Subdivision, an employer
may elect to calculate the value of certain car parking fringe benefits by
using a statutory formula based on the number and value of spaces available to
employees covered by the election.
39FA
Spaces method of calculating total taxable value of car parking fringe benefits
Election
(1) If a provider provides one or more car
parking benefits in respect of one or more employees of an employer in a
particular FBT year, the employer may elect that this Subdivision applies to
the employer’s car parking fringe benefits for some or all of the employees for
that FBT year.
Employer must specify employees covered by election
(2) The employer must specify that the
election covers:
(a) all the employees; or
(b) all employees of a particular
class; or
(c) particular employees.
Total value of car parking fringe benefits
(3) Despite any other provision of this Act
(other than section 39FB) the total taxable value of the employer’s car
parking fringe benefits for employees covered by the election for the FBT year
is the amount worked out using the spaces method under subsection (4).
Note: Section 39FB covers the situation where
the number of spaces available to employees exceeds the number of employees.
Method
(4) The spaces method is:
Step 1: Work
out an amount using the following formula, for each space for which there is,
in the FBT year, at least one car parking benefit for an employee covered by
the election:
Step 2: Work
out the total of all the amounts calculated under Step 1 (the total
statutory benefit).
Step 3: Subtract
from the total statutory benefit the sum of all relevant recipients
contributions.
Note 1: Section 39FC defines daily rate
amount.
Note 2: Section 39FD defines availability
period.
Note 3: Section 39FE defines relevant
recipients contribution.
(5) The election is of no effect if, in
working out the daily rate for a space, the fees referred to in subsection
39DA(3) are not representative (see section 39AB).
39FB
Number of spaces exceeds number of employees
(1) This section applies if, throughout the
parking period (see subsection (5)), the average number of employees
covered by the election is less than the average number of spaces (eligible
spaces) for which there is an availability period.
Formula to reduce total statutory benefits
(2) If this section applies, the total
statutory benefit (see Step 2 in subsection 39FA(4)) is multiplied by the
following fraction:
(3) The average number of employees
is:
(4) The average number of eligible
spaces is:
(5) The parking period is
the period:
(a) beginning on the first day in the
FBT year on which the parking of a car in any space referred to in subsection
39FA(4) gives rise to a car parking fringe benefit of the employer for an
employee covered by the election; and
(b) ending on the last day in the FBT
year on which the parking of a car in any space referred to in subsection
39FA(4) gives rise to a car parking fringe benefit of the employer for an
employee covered by the election.
Number of employees and number of spaces must be
representative
(6) This section does not apply if the number
of employees or the number of eligible spaces referred to in subsections (3)
and (4) are not representative (see subsection (7)).
Meaning of not representative
(7) A number of employees, or a number of
eligible spaces, as the case requires, is not representative if
the number of employees, or eligible spaces, as the case requires, is
substantially greater or less than the average number throughout whichever of
the following periods is chosen by the employer:
(a) the 4 week period ending on the
first day of the parking period; or
(b) the 4 week period beginning on the
last day of the parking period.
39FC
Meaning of daily rate amount
The daily rate amount for
a space is the amount that would be worked out using whichever of the following
methods that the taxpayer chooses:
(a) the commercial parking station
method;
(b) the market value method;
(c) the average cost method;
as the taxable value of the car parking fringe benefit for
the space, if there were no recipients contribution.
39FD
Meaning of availability period
An availability period for
a space begins on the first day in the FBT year on which there is a car parking
benefit for the space for an employee covered by the election and ends on the
last day in the FBT year on which there is a car parking benefit for the space
for an employee covered by the election.
39FE
Meaning of relevant recipients contribution
A relevant recipients contribution
is a recipients contribution in respect of any car parking fringe benefit
provided in respect of the employment of an employee covered by the election
for the FBT year.
Subdivision D—12 week record keeping method
39G
The key principle
Under this
Subdivision, an employer may keep a 12 week register of car parking provided to
employees. An employer who keeps such a register may elect that the total value
of certain car parking fringe benefits for an FBT year for which the register
is valid is to be determined in accordance with the register.
39GA
Employer may elect to use 12 week record keeping method
(1) An employer may elect that this
Subdivision applies to the employer’s car parking fringe benefits for some or
all of the employer’s employees for that FBT year if the employer has a valid
register for that FBT year covering those employees.
(2) The employer must specify that the
election covers:
(a) all the employees; or
(b) all employees of a particular
class; or
(c) particular employees.
39GB
Value of fringe benefits for year
Despite any other provision of this Act
(other than this section), the total taxable value of the employer’s car
parking fringe benefits for employees covered by the election for the FBT year
is the amount worked out using the formula:
39GC
Meaning of total value of car parking benefits (register)
The total value of car parking
benefits (register), in relation to the FBT year, means the amount that
would be the total taxable value of car parking fringe benefits for employees
covered by the election for the 12 week period for which a register is kept,
assuming that:
(a) the register had been kept in that
FBT year; and
(b) the value of the benefits were
calculated in accordance with the information in the register; and
(c) the value of the benefits were
calculated using whichever of the following methods that the taxpayer chooses:
(i) the commercial parking
station method;
(ii) the market value
method;
(iii) the average cost
method.
39GD
Meaning of car parking availability period
The car parking availability
period is the period:
(a) beginning on the first day in the
FBT year on which there is a car parking benefit for an employee covered by the
election; and
(b) ending on the last day in the FBT
year on which there is a car parking benefit for an employee covered by the
election.
39GE
Choosing the 12 week period for a register
(1) The register must be kept for a
continuous period of at least 12 weeks throughout which car parking benefits
are provided to employees covered by the election.
(2) The period for which the register is kept
must be representative of usage for the first FBT year for which it is valid.
(3) If subsection (1) or (2) is not
satisfied, the register is not valid.
39GF
FBT years for which register is valid
12 week period in one FBT year
(1) If the 12 week period begins and ends in
the one FBT year, the register is valid for that FBT year and, subject to subsections (3)
and (4), for each of the 4 FBT years immediately following that year.
12 week period over 2 FBT years
(2) If the 12 week period begins in one FBT
year and ends in another FBT year, the register is only valid for the second
FBT year and, subject to subsections (3) and (4), for each of the 4 years
immediately following that year.
When register ceases to be valid—increase in benefits
(3) A register that is valid for an FBT year
ceases to be valid at the end of that FBT year if the number of car parking
fringe benefits for the employer for employees covered by the election
increases by more than 10% on any day in that FBT year.
Note: This means that if the number of car parking
fringe benefits increases by more than 10%, the employer will have to keep a
new register in the FBT year following the year of the increase if the employer
wants to use the method in this Subdivision for that following year.
When a register ceases to be valid—later register
(4) A register that is valid for an FBT year
ceases to be valid if there is a later valid register for that FBT year that
covers the same employee.
39GG
Matters to be included in register
(1) The register must include details of the
following:
(a) the date on which each car covered
by subsection (4) was parked;
(b) whether the car was parked for a
total that exceeds 4 hours;
(c) whether the car travelled between
the place of residence of an employee covered by the election and his or her
primary place of employment on that day;
(d) the place where the car was
parked.
(2) The person responsible for making entries
in the register must make the entry as soon as practicable after he or she
knows the details required by subsection (1).
(3) If subsection (1) or (2) is not
satisfied, the register is not valid.
(4) A car is
covered by this subsection if:
(a) a car benefit relating to the car
is provided on a day during the 12 week period to an employee covered by the
election in respect of the employee’s employment; or
(b) the car is owned by, or leased to,
an employee covered by the election at any time during the 12 week period; or
(c) the car is made available by
another person to an employee covered by the election at any time during the 12
week period where:
(i) the other person is
not the employee’s employer; and
(ii) the other person did
not make the car available under an arrangement to which the employee’s
employer is a party.
39GH
Fraudulent entries invalidate register
For the purposes of this Act, a register
is not valid if the register contains an entry that is false or misleading in a
material particular.
Division 11—Property fringe benefits
Subdivision A—Property benefits
40
Property benefits
Where, at a particular time, a person
(in this section referred to as the provider) provides property
to another person (in this section referred to as the recipient),
the provision of the property shall be taken to constitute a benefit provided
by the provider to the recipient at that time.
41
Exempt property benefits
(1) Where:
(a) a property benefit is provided to
a current employee of an employer in respect of his or her employment; and
(b) the property is provided to, and
consumed by, the employee on a working day and on business premises of:
(i) the employer; or
(ii) if the employer is a
company, of the employer or of a company that is related to the employer;
the benefit is an exempt benefit.
(2) This section does not apply to food or
drink provided to, and consumed by, an employee if the food or drink is
provided:
(a) because of the employee agreeing
to receive the food or drink in return for a reduction in the employee’s salary
or wages that would not have happened apart from the agreement; or
(b) as part of the employee’s
remuneration package, in circumstances where it is reasonable to
conclude that the employee’s salary or wages would be greater if the food or
drink were not made part of that package.
Subdivision B—Taxable value of property fringe benefits
42
Taxable value of in‑house property fringe benefits
(1) Subject to this Part, the taxable value
of an in‑house property fringe benefit in relation to an employer in
relation to a year of tax is:
(a) where the recipients property was
manufactured, produced, processed or treated by the provider:
(i) if identical property
that was manufactured, produced, processed or treated, as the case may be, by
the provider was, at or about the provision time, sold by the provider in the
ordinary course of business to purchasers being manufacturers, wholesalers or
retailers, an amount equal to:
(A) if any
of that identical property was, at or about the provision time, sold by the
provider under an arm’s length transaction or arm’s length transactions—the
lowest price at which it was sold under such a transaction; or
(B) if sub-subparagraph (A)
does not apply—the lowest price at which any of that identical property could
reasonably be expected to have been sold by the provider at or about the
provision time under an arm’s length transaction;
increased, where sales
tax was not, or would not have been, payable, by the provider in respect of the
sale concerned, by the amount of any sales tax payable by the provider in
respect of the provision of the recipient’s property to the recipient;
(ii) where subparagraph (i)
does not apply but identical property that was manufactured, produced,
processed or treated, as the case may be, by the provider was, at or about the
provision time, sold by the provider:
(A) in the
ordinary course of business to members of the public under an arm’s length
transaction or arm’s length transactions; and
(B) in
similar circumstances and subject to identical terms and conditions (other than
as to price) as those that applied in relation to the provision of the
recipients property to the recipient;
an amount equal to 75%
of the lowest price at which that property was so sold to a member of the
public; or
(iii) in any other case—an
amount equal to 75% of the notional value of the recipients property at the
provision time;
(b) where paragraph (a) does not
apply and the property was acquired by the provider—an amount equal to the
lesser of:
(i) the arm’s length price
in respect of the acquisition of the recipients property by the provider
increased, in a case where sales tax was not payable by the person from whom
the provider acquired the property in respect of the disposal of the property
to the provider, by the amount of any sales tax payable in respect of the
provision of the recipients property to the recipient; or
(ii) the notional value of
the recipients property at the provision time; or
(c) in any other case—an amount equal
to 75% of the notional value of the recipients property at the provision time;
reduced by the amount of the recipients contribution.
(2) In subsection (1), arm’s
length price, in respect of the acquisition of the recipients property
by the provider, means:
(a) if the recipients property was
acquired by the provider in the ordinary course of business under an arm’s
length transaction—the cost price of the recipients property to the provider;
or
(b) in any other case—the amount that
the provider could reasonably be expected to have been required to pay to
acquire the recipients property under an arm’s length transaction in the
ordinary course of business.
43
Taxable value of external property fringe benefits
Subject to this Part, the taxable value
of an external property fringe benefit in relation to an employer in relation
to a year of tax is:
(a) where the provider was the
employer or an associate of the employer and the recipients property was
purchased by the provider under an arm’s length transaction at or about the
provision time—the cost price of the recipients property to the provider;
(b) where the provider was not the
employer or an associate of the employer and the employer, or an associate of
the employer, incurred expenditure to the provider under an arm’s length
transaction in respect of the provision of the property—the amount of that
expenditure; or
(c) in any other case—the notional
value of the recipients property at the provision time;
reduced by the amount of the recipients contribution.
44
Reduction of taxable value—otherwise deductible rule
(1) Where:
(a) the recipient of a property fringe
benefit in relation to an employer in relation to a year of tax is an employee
of the employer; and
(b) if the recipient had, at the
provision time, incurred and paid unreimbursed expenditure (in this subsection
called the gross expenditure), in respect of the purchase of the
recipients property, equal to the amount that, but for this subsection and
Division 14 and the recipients contribution, would be the taxable value of
the property fringe benefit in relation to the year of tax—a once‑only
deduction (in this subsection called the gross deduction) would,
or would if not for section 82A of the Income Tax Assessment Act 1936,
and Divisions 28 and 900 of the Income Tax Assessment Act 1997,
have been allowable to the recipient under either of those Acts in respect of
the gross expenditure; and
(ba) the amount (in this subsection
called the notional deduction) calculated in accordance with the
formula:
where:
GD is the gross
deduction; and
RD is:
(i) if there is no
recipients contribution in relation to the property fringe benefit—nil; or
(ii) if there is a
recipients contribution in relation to the property fringe benefit equal to, or
calculated by reference to, an amount of consideration paid by the recipient to
the provider or to the employer in respect of the provision of the recipients
property—the amount (if any) that would, or that would but for section 82A
of the Income Tax Assessment Act 1936, and Divisions 28 and 900 of
the Income Tax Assessment Act 1997, have been allowable as a once‑only
deduction to the recipient under either of those Acts in respect of that
consideration if that consideration had been incurred and paid by the recipient
at the provision time;
exceeds nil; and
(c) except where the property fringe
benefit is:
(i) an exclusive employee
property benefit; or
(ia) covered by a recurring
fringe benefit declaration (see section 152A); or
(ii) an extended travel
property benefit; or
(iii) a car property
benefit;
the recipient gives to the
employer, before the declaration date, a declaration, in a form approved by the
Commissioner, in respect of the recipients property; and
(d) where the property fringe benefit
is an extended travel property benefit (other than an international aircrew
property benefit)—the recipient gives to the employer, before the declaration
date, a travel diary in relation to the travel undertaken by the recipient to
which the fringe benefit relates; and
(da) where:
(i) the property fringe
benefit is a car property benefit in respect of a car held by the recipient
during a period (in this section called the holding period) in
the year of tax; and
(ii) the substantiation
rules set out in Division 15 have been complied with in relation to the
car in relation to the holding period;
the following conditions are
satisfied:
(iii) the recipient gives to
the employer, before the declaration date, a car substantiation declaration for
the car for the year of tax;
(iv) in a case where the
substantiation rules require log book records or odometer records to be
maintained by or on behalf of the recipient in relation to the car—the car
substantiation declaration is accompanied by a copy of those documents; and
(e) where paragraph (da) does not
apply and the property fringe benefit is a car property benefit in respect of a
car held by the recipient during a period (in this section also called the holding
period) in the year of tax—the recipient gives to the employer, before
the declaration date:
(i) a declaration, in a
form approved by the Commissioner, that purports to set out:
(A) the
holding period; and
(B) the
number of whole business kilometres travelled by the car during the holding
period; and
(C) the
number of whole kilometres travelled by the car during the holding period; or
(ii) where the average
number of business kilometres per week travelled by the car during the holding
period exceeded 96:
(A) a
declaration referred to in subparagraph (i); or
(B) a
declaration, in a form approved by the Commissioner, that purports to set out
the holding period and includes a statement by the recipient that the average
number of business kilometres per week travelled by the car during the holding
period exceeded 96;
the taxable value, but for Division 14, of the property
fringe benefit in relation to the year of tax is the amount calculated in
accordance with the formula:
where:
TV is the amount that, but for this
subsection and Division 14, would be the taxable value of the property
fringe benefit in relation to the year of tax; and
ND is:
(f) if neither paragraph (da)
nor paragraph (e) applies and paragraph (k) does not apply—the
notional deduction; or
(g) where paragraph (da) applies
and paragraph (k) does not apply—whichever of the following amounts is
applicable:
(i) if it would be
concluded that the amount of the recipients contribution would have been the
same even if the property fringe benefit were not applied or used in producing
assessable income of the recipient—the business use percentage of the amount
that, but for this subsection and Division 14, would be the taxable value
of the property fringe benefit in relation to the year of tax;
(ii) if subparagraph (i)
does not apply—the business use percentage of the amount that, but for this
subsection and Division 14 and the recipients contribution, would be the
taxable value of the property fringe benefit in relation to the year of tax; or
(h) where:
(i) paragraph (e)
applies; and
(ii) a declaration referred
to in subparagraph (e)(i) has been given to the employer; and
(iia) paragraph (k) does
not apply;
whichever of the following
amounts is the least:
(iii) the notional
deduction;
(iv) if it would be
concluded that the amount of the recipients contribution would have been the
same even if the property fringe benefit were not applied or used in producing
assessable income of the recipient—33% of the
amount that, but for this subsection and Division 14, would be the taxable
value of the property fringe benefit in relation to the year of tax;
(v) if subparagraph (iv)
does not apply—33% of the amount
that, but for this subsection and Division 14 and the recipients
contribution, would be the taxable value of the property fringe benefit in
relation to the year of tax; or
(j) where:
(i) subparagraph (e)(ii)
applies; and
(ii) a declaration referred
to in subparagraph (e)(i) has not been given to the employer; and
(iia) paragraph (k) does
not apply;
whichever of the following
amounts is applicable:
(iii) if it would be
concluded that the amount of the recipients contribution would have been the
same even if the property fringe benefit were not applied or used in producing
assessable income of the recipient—33% of the
amount that, but for this subsection and Division 14, would be the taxable
value of the property fringe benefit in relation to the year of tax;
(iv) if subparagraph (iii)
does not apply—33% of the amount
that, but for this subsection and Division 14 and the recipients
contribution, would be the taxable value of the property fringe benefit in
relation to the year of tax; or
(k) if, under subsection 138(3), the
property fringe benefit is deemed to have been provided to the recipient only—the
amount calculated in accordance with subsection (5).
(2) For the purposes of the application of
this section in relation to a fringe benefit, where the recipient:
(a) while undertaking travel referred
to in paragraph (1)(d), engages in an activity in the course of producing
assessable income of the recipient; and
(b) does not make, as mentioned in the
definition of travel diary in subsection 136(1), an entry
relating to the activity, being an entry of the kind referred to in that
definition;
the activity shall be deemed not to have been engaged in
by the recipient in the course of producing assessable income.
(3) Where:
(a) apart from this subsection, paragraph (1)(da)
applies in relation to a fringe benefit in relation to an employer in respect of
a car held by the recipient during a period in a year of tax; and
(b) whichever of the following amounts
is the greater exceeds the amount that, apart from this subsection, would be
ascertained under paragraph (1)(g) as representing the component ND in the
formula in subsection (1):
(i) in all cases—the
amount that would have been ascertained under paragraph (1)(h) as
representing that component if:
(A) paragraph (1)(e)
had applied in relation to the fringe benefit; and
(B) a
declaration of the kind referred to in subparagraph (1)(e)(i) had been
given to the employer;
(ii) in a case where the
average number of business kilometres per week travelled by the car during the
holding period exceeded 96—the amount that would have been ascertained under paragraph (1)(j)
as representing that component if:
(A) subparagraph (1)(e)(ii)
had applied in relation to that fringe benefit; and
(B) a
declaration of the kind referred to in subparagraph (1)(e)(i) had not been
given to the employer; and
(C) a
declaration of the kind referred to in sub-subparagraph (1)(e)(ii)(B) had
been given to the employer;
this Act applies, and shall be deemed always to have
applied, as if the amount represented by that component had been calculated as
mentioned in whichever of subparagraphs (b)(i) or (ii) of this subsection
is applicable.
(4) Nothing in section 74 prevents the
amendment of an assessment for the purpose of giving effect to subsection (3).
(5) For the purposes of paragraph (1)(k)
(which applies to a property fringe benefit that, under subsection 138(3), is
deemed to have been provided to an employee only), the amount is calculated in
accordance with the formula:
where:
employee’s percentage of interest:
(a) is the percentage of the interest
held by the employee, during a period (in this subsection called the holding
period) in the year of tax, in the asset or other thing that:
(i) is the property to
which the property fringe benefit relates; and
(ii) is applied or used for
the purpose of producing assessable income of the employee; and
(b) does not include the percentage of
the interest held in that asset or other thing by the employee’s associate or
associates during the holding period.
unadjusted ND is the amount that would be
ascertained as representing the component ND in the formula in
subsection (1) if paragraph (1)(k) did not apply in relation to the
property fringe benefit.
Division 12—Residual fringe benefits
Subdivision A—Residual benefits
45
Residual benefits
A benefit is a residual benefit for the
purposes of this Act if the benefit is not a benefit by virtue of a provision
of Subdivision A of Divisions 2 to 11 (inclusive).
46
Year of tax in which residual benefits taxed
(1) Subject to this section, a residual
benefit that is provided during a period shall be deemed to have been provided
in respect of each year of tax during which any part of that period occurred.
(2) Where:
(a) a residual benefit (in this
subsection referred to as the eligible benefit), not being a
residual benefit constituted by a lease or licence in respect of property, is
provided on the basis that, in respect of each of a number of regular periods
(in this subsection referred to as a billing period) commencing
on or after 1 July 1986 (whether or not there were any such periods before
that date), a payment is to be made in respect of the provision of the benefit
during the billing period; and
(b) identical benefits are provided to
members of the public on the same basis and in the ordinary course of a
business carried on by the person providing the eligible benefit;
the following provisions have effect:
(c) the provision of the eligible
benefit during each billing period shall be taken to constitute a separate
benefit;
(d) each such separate residual
benefit shall be deemed to have been provided at the time at which the payment
in respect of the billing period concerned is due and payable, and not
otherwise.
47
Exempt residual benefits
(1) Where:
(a) in respect of the employment of a
current employee, the employer, or an associate of the employer, provides a
residual benefit to the employee that consists of transport of the employee,
otherwise than in an aircraft:
(i) between:
(A) the
place of residence of the employee; and
(B) the
place of employment of the employee or any other place from which or at which
the employee performs duties of that employment; or
(ii) in a case where the
place referred to in
sub-subparagraph (i)(B) is in a metropolitan area—on a regular and
scheduled service over a route wholly within that metropolitan area;
(b) where the provider is the
employer—the employer carries on a business of providing transport to members
of the public;
(c) where the provider is an associate
of the employer—the employer and the associate each carries on a business of providing
transport to members of the public;
(d) the transport referred to in paragraph (a)
is provided in the same, or substantially the same, circumstances as transport
provided to members of the public in the ordinary course of carrying on a
business of providing transport to members of the public; and
(e) the employee is employed in the
business of providing transport to members of the public;
the benefit is an exempt benefit.
(1A) Where:
(a) a person is an employee of a
government body; and
(b) the person’s duties of employment
are performed in a police service; and
(c) the person is provided with a
residual benefit consisting of the provision of travel on public transport; and
(d) the benefit is provided for the
purpose of travel between:
(i) the person’s place of
residence; and
(ii) the person’s primary
place of employment;
the benefit is an exempt benefit.
(2) Where:
(a) a residual benefit provided to a
current employee in respect of his or her employment consists of:
(i) the provision, or use,
of a recreational facility; or
(ii) the care of children
of the employee in a child care facility; and
(b) the recreational facility or child
care facility, as the case may be, is located on business premises of:
(i) the employer; or
(ii) if the employer is a
company, of the employer or of a company that is related to the employer;
the benefit is an exempt benefit.
(3) Where a residual benefit provided to a
current employee in respect of his or her employment consists of the use of
property (other than a motor vehicle) that is ordinarily located on business
premises of, and is wholly or principally used directly in connection with
business operations of:
(a) the employer; or
(b) if the employer is a company—the
employer or a company that is related to the employer;
the benefit is an exempt benefit.
(4) For the purposes of subsection (3),
toilets, bathroom facilities, food or drink vending machines, tea or coffee
making facilities, water dispensers or other amenities (not being facilities
for drinking or dining) for the use of employees of an employer shall be taken
to be principally used directly in connection with business operations of the
employer.
(4A) For the purposes of subsection (3), a
building site, construction site or any similar place where a person carries on
business operations shall be taken to be business premises of the person.
(5) Where:
(a) a residual benefit consisting of
the subsistence, during a year of tax, of a lease or licence in respect of a
unit of accommodation is provided to an employee of an employer in respect of
his or her employment;
(b) the unit of accommodation is for
the accommodation of eligible family members and is provided solely by reason
that the employee is required to live away from his or her usual place of
residence in order to perform the duties of that employment;
(c) the accommodation is not provided
while the employee is undertaking travel in the course of performing the duties
of that employment; and
(d) either of the following conditions
is satisfied:
(i) subsection (7)
applies in relation to the provision of transport for the employee in
connection with travel in the period in the year of tax when the lease or
licence subsisted, being travel between the employee’s usual place of residence
and the employee’s usual place of employment;
(ii) the employee gives to
the employer, before the declaration date, a declaration, in a form approved by
the Commissioner, purporting to set out:
(A) the
employee’s usual place of residence; and
(B) the place
at which the employee actually resided while living away from his or her usual
place of residence;
the benefit is an exempt benefit in relation to the year
of tax.
(6) Where:
(a) a residual benefit consisting of
the provision or use of a motor vehicle is provided in a year of tax in respect
of the employment of a current employee;
(aa) the motor vehicle is not:
(i) a taxi let on hire to
the provider; or
(ii) a car, not being:
(A) a panel
van or utility truck; or
(B) any
other road vehicle designed to carry a load of less than 1 tonne (other than a
vehicle designed for the principal purpose of carrying passengers); and
(b) there was no private use of the
motor vehicle during the year of tax and at a time when the benefit was
provided other than:
(i) work‑related
travel of the employee; and
(ii) other private use of
the motor vehicle by the employee or an associate of the employee, being other
use that was minor, infrequent and irregular;
the benefit is an exempt benefit in relation to the year
of tax.
(6A) Where:
(a) a residual benefit consisting of
the provision or use of a motor vehicle is provided by a particular person (in
this subsection called the provider) in a year of tax in respect
of the employment of a current employee of an employer;
(b) at all times during the year of
tax when the motor vehicle was held by the provider, the motor vehicle was
unregistered; and
(c) during the period in the year of
tax when the motor vehicle was held by the provider, the motor vehicle was
wholly or principally used directly in connection with business operations of:
(i) the employer; or
(ii) if the employer is a
company—the employer or a company that is related to the employer;
the benefit is an exempt benefit in relation to the year
of tax.
(6B) A reference in subsection (6A) to a
motor vehicle held by a provider is a reference to:
(a) a motor vehicle owned by the
provider;
(b) a motor vehicle leased to the
provider; or
(c) a motor vehicle otherwise made
available to the provider by another person.
(7) Where, during a period of employment with
an employer:
(a) an employee’s usual place of
employment is:
(i) on an oil rig, or
other installation, at sea; or
(ii) at a location in a
State or internal Territory but not in, or adjacent to, an eligible urban area;
(b) the employee is provided with
residential accommodation, at or near that usual place of employment, by:
(i) the employer;
(ii) an associate of the
employer; or
(iii) a person (in this
subparagraph referred to as the arranger) other than the employer
or an associate of the employer under an arrangement between:
(A) the
employer or an associate of the employer; and
(B) the
arranger or another person;
(c) the employee, on a regular basis:
(i) works for a number of
days and has a number of days off; and
(ii) on completion of the
working days, travels from that usual place of employment to his or her usual
place of residence and, on completion of the days off, returns from his or her
usual place of residence to that usual place of employment; and
(d) the employee is provided with
transport on a regular basis in connection with the travel referred to in subparagraph (c)(ii)
and that transport is provided by:
(i) the employer;
(ii) an associate of the
employer; or
(iii) a person (in this
subparagraph referred to as the arranger) other than the employer
or an associate of the employer under an arrangement between:
(A) the
employer or an associate of the employer; and
(B) the
arranger or another person;
and, having regard to the location of that usual place of
employment and the location of the employee’s usual place of residence, it
would be unreasonable to expect the employee to travel between those places on
work days on a daily basis, the residual benefit constituted by the provision
of the transport referred to in paragraph (d) is an exempt benefit.
(8) If:
(a) a residual benefit provided in
respect of the employment of an employee arose out of priority of access, for a
child or children of the employee, to:
(i) a place that is an
eligible child care centre for the purposes of any provision of the Child
Care Act 1972; or
(ii) family day care
provided before the commencement of item 1 of Schedule 10 to the A
New Tax System (Family Assistance) (Consequential and Related Measures) Act
(No. 2) 1999; or
(iii) care outside school
hours provided before the commencement of item 1 of Schedule 10 to
the A New Tax System (Family Assistance) (Consequential and Related
Measures) Act (No. 2) 1999; or
(iv) care in school
vacations provided before the commencement of item 1 of Schedule 10
to the A New Tax System (Family Assistance) (Consequential and Related
Measures) Act (No. 2) 1999; or
(v) an approved centre
based long day care service within the meaning of the A New Tax System
(Family Assistance) (Administration) Act 1999; or
(vi) an approved family day
care service within the meaning of the A New Tax System (Family Assistance)
(Administration) Act 1999; or
(vii) an approved outside
school hours care service within the meaning of the A New Tax System (Family
Assistance) (Administration) Act 1999; or
(viii) an approved in‑home
care service within the meaning of the A New Tax System (Family Assistance)
(Administration) Act 1999; and
(b) in order to obtain that priority
of access, the employer of the employee, or an associate of the employer, made
a contribution under a program administered by the Department of Health,
Housing, Local Government and Community Services;
the residual benefit is an exempt benefit.
47A
Exemption—no‑private‑use declaration
(1) A residual fringe benefit that is covered
by a no‑private‑use declaration is an exempt benefit.
(2) An employer may make a no‑private‑use
declaration that covers all the employer’s residual fringe
benefits for an FBT year that are covered by a consistently enforced policy in
relation to the use of the property that is the subject of the benefit that
would result in the taxable value of the benefit being nil.
(3) The declaration must be in a form
approved in writing by the Commissioner and be made by the declaration date.
Subdivision B—Taxable value of residual fringe benefits
48
Taxable value of in‑house non‑period residual fringe benefits
Subject to this Part, the taxable value
of an in‑house non‑period residual fringe benefit in relation to an
employer in relation to a year of tax is:
(a) where, at or about the comparison
time, identical benefits were provided by the provider:
(i) in the ordinary course
of business to members of the public under an arm’s length transaction or arm’s
length transactions; and
(ii) in similar
circumstances and subject to identical terms and conditions (other than as to
price) as those that applied in relation to the provision of the recipients
benefit to the recipient;
an amount equal to 75% of the
lowest price at which an identical benefit was so sold to a member of the
public; or
(b) in any other case—an amount equal
to 75% of the notional value of the benefit at the comparison time;
reduced by the amount of the recipients contribution.
49
Taxable value of in‑house period residual fringe benefits
Subject to this Part, the taxable value
of an in‑house period residual fringe benefit in relation to a year of
tax is:
(a) where, at or about the comparison
time, identical overall benefits were provided by the provider:
(i) in the ordinary course
of business to members of the public under an arm’s length transaction or arm’s
length transactions; and
(ii) in similar
circumstances and subject to identical terms and conditions (other than as to
price) as those that applied in relation to the provision of the recipients
overall benefit;
an amount equal to 75% of the
lowest amount paid or payable by any such member of the public in respect of
the current identical benefit in relation to an identical overall benefit so
provided; or
(b) in any other case—an amount equal
to 75% of the notional value of the recipients current benefit;
reduced by the amount of the recipients contribution
insofar as it relates to the recipients current benefit.
50
Taxable value of external non‑period residual fringe benefits
Subject to this Part, the taxable value
of an external non‑period residual fringe benefit in relation to an
employer in relation to a year of tax is:
(a) where the provider was the
employer or an associate of the employer and the benefit was purchased by the
provider under an arm’s length transaction—the amount paid or payable by the
provider for the benefit;
(b) where the provider was not the
employer or an associate of the employer and the employer, or an associate of
the employer, incurred expenditure to the provider under an arm’s length
transaction in respect of the provision of the benefit—the amount of that
expenditure; or
(c) in any other case—the notional
value of the benefit at the comparison time;
reduced by the amount of the recipients contribution.
51
Taxable value of external period residual fringe benefits
Subject to this Part, the taxable value
of an external period residual fringe benefit in relation to an employer in
relation to a year of tax is:
(a) where the provider was the
employer or an associate of the employer and the recipients overall benefit was
purchased by the provider under an arm’s length transaction—the amount paid or
payable by the provider in respect of the recipients current benefit;
(b) where the provider was not the
employer or an associate of the employer and the employer, or an associate of
the employer, incurred expenditure to the provider under an arm’s length
transaction in respect of the provision of the recipients current benefit—the
amount of that expenditure; or
(c) in any other case—the notional
value of the recipients current benefit;
reduced by the amount of the recipients contribution
insofar as it relates to the recipients current benefit.
52
Reduction of taxable value—otherwise deductible rule
(1) Where:
(a) the recipient of a residual fringe
benefit in relation to an employer in relation to a year of tax is an employee
of the employer; and
(b) if the recipient had, at the
comparison time, incurred and paid unreimbursed expenditure (in this subsection
called the gross expenditure), in respect of the provision of the
recipients benefit, equal to the amount that, but for this subsection and
Division 14 and the recipients contribution, would be the taxable value of
the residual fringe benefit in relation to the year of tax—a once‑only
deduction (in this subsection called the gross deduction) would,
or would if not for section 82A of the Income Tax Assessment Act 1936,
and Divisions 28 and 900 of the Income Tax Assessment Act 1997,
have been allowable to the recipient under either of those Acts in respect of
the gross expenditure; and
(ba) the amount (in this subsection
called the notional deduction) calculated in accordance with the
formula:
where:
GD is the gross
deduction; and
RD is:
(i) if there is no
recipients contribution in relation to the residual fringe benefit—nil; or
(ii) if there is a
recipients contribution in relation to the residual fringe benefit equal to, or
calculated by reference to, an amount of consideration paid by the recipient to
the provider or to the employer in respect of the provision of the recipients
benefit—the amount (if any) that would, or that would but for section 82A
of the Income Tax Assessment Act 1936, and Divisions 28 and 900 of
the Income Tax Assessment Act 1997 have been allowable as a once‑only
deduction to the recipient under either of those Acts in respect of so much of
that consideration as was taken into account for the purposes of section 4‑15
or 8‑1 of the Income Tax Assessment Act 1997, if that
consideration had been incurred and paid by the recipient at the comparison
time;
exceeds nil; and
(c) except where the fringe benefit
is:
(i) an exclusive employee
residual benefit; or
(ia) covered by a recurring
fringe benefit declaration (see section 152A); or
(ii) an extended travel
residual benefit; or
(iii) a car residual
benefit;
the recipient gives to the
employer, before the declaration date, a declaration, in a form approved by the
Commissioner, in respect of the recipients benefit; and
(d) where the fringe benefit is an
extended travel residual benefit (other than an international aircrew residual
benefit)—the recipient gives to the employer, before the declaration date, a
travel diary in relation to the travel undertaken by the recipient to which the
fringe benefit relates; and
(da) where:
(i) the fringe benefit is
a car residual benefit in respect of a car held by the recipient during a
period (in this section called the holding period) in the year of
tax; and
(ii) the substantiation
rules set out in Division 15 have been complied with in relation to the
car in relation to the holding period;
the following conditions are
satisfied:
(iii) the recipient gives to
the employer, before the declaration date, a car substantiation declaration for
the car for the year of tax;
(iv) in a case where the
substantiation rules require log book records or odometer records to be
maintained by or on behalf of the recipient in relation to the car—the car substantiation
declaration is accompanied by a copy of those documents; and
(e) where paragraph (da) does not
apply and the fringe benefit is a car residual benefit in respect of a car held
by the recipient during a period (in this section also called the holding
period) in the year of tax—the recipient gives to the employer, before
the declaration date:
(i) a declaration, in a
form approved by the Commissioner, that purports to set out:
(A) the
holding period; and
(B) the
number of whole business kilometres travelled by the car during the holding
period; and
(C) the
number of whole kilometres travelled by the car during the holding period; or
(ii) where the average
number of business kilometres per week travelled by the car during the holding
period exceeded 96:
(A) a
declaration referred to in subparagraph (i); or
(B) a
declaration, in a form approved by the Commissioner, that purports to set out
the holding period and includes a statement by the recipient that the average
number of business kilometres per week travelled by the car during the holding
period exceeded 96;
the taxable value, but for Division 14, of the
residual fringe benefit in relation to the year of tax is the amount calculated
in accordance with the formula:
where:
TV is the amount that, but for this
subsection and Division 14, would be the taxable value of the residual
fringe benefit in relation to the year of tax; and
ND is:
(f) if neither paragraph (da)
nor paragraph (e) applies and paragraph (k) does not apply—the
notional deduction; or
(g) where paragraph (da) applies
and paragraph (k) does not apply—whichever of the following amounts is
applicable:
(i) if it would be
concluded that the amount of the recipients contribution would have been the
same even if the residual fringe benefit were not applied or used in producing
assessable income of the recipient—the business use percentage of the amount
that, but for this subsection and Division 14, would be the taxable value
of the residual fringe benefit in relation to the year of tax;
(ii) if subparagraph (i)
does not apply—the business use percentage of the amount that, but for this
subsection and Division 14 and the recipients contribution, would be the
taxable value of the residual fringe benefit in relation to the year of tax; or
(h) where:
(i) paragraph (e)
applies; and
(ii) a declaration referred
to in subparagraph (e)(i) has been given to the employer; and
(iia) paragraph (k) does
not apply;
whichever of the following
amounts is the least:
(iii) the notional
deduction;
(iv) if it would be
concluded that the amount of the recipients contribution would have been the
same even if the residual fringe benefit were not applied or used in producing
assessable income of the recipient—33% of the
amount that, but for this subsection and Division 14, would be the taxable
value of the residual fringe benefit in relation to the year of tax;
(v) if subparagraph (iv)
does not apply—33% of the amount
that, but for this subsection and Division 14 and the recipients
contribution, would be the taxable value of the residual fringe benefit in
relation to the year of tax; or
(j) where:
(i) subparagraph (e)(ii)
applies; and
(ii) a declaration referred
to in subparagraph (e)(i) has not been given to the employer; and
(iia) paragraph (k) does
not apply;
whichever of the following
amounts is applicable:
(iii) if it would be
concluded that the amount of the recipients contribution would have been the
same even if the residual fringe benefit were not applied or used in producing
assessable income of the recipient—33% of the
amount that, but for this subsection and Division 14, would be the taxable
value of the residual fringe benefit in relation to the year of tax;
(iv) if subparagraph (iii)
does not apply—33% of the amount
that, but for this subsection and Division 14 and the recipients
contribution, would be the taxable value of the residual fringe benefit in
relation to the year of tax; or
(k) if, under subsection 138(3), the
residual fringe benefit is deemed to have been provided to the recipient
only—the amount calculated in accordance with subsection (5).
(2) For the purposes of the application of
this section in relation to a fringe benefit, where the recipient:
(a) while undertaking travel referred
to in paragraph (1)(d), engages in an activity in the course of producing
assessable income of the recipient; and
(b) does not make, as mentioned in the
definition of travel diary in subsection 136(1), an entry
relating to the activity, being an entry of the kind referred to in that
definition;
the activity shall be deemed not to have been engaged in
by the recipient in the course of producing assessable income.
(3) Where:
(a) apart from this subsection, paragraph (1)(da)
applies in relation to a fringe benefit in relation to an employer in respect
of a car held by the recipient during a period in a year of tax; and
(b) whichever of the following amounts
is the greater exceeds the amount that, apart from this subsection, would be
ascertained under paragraph (1)(g) as representing the component ND in the
formula in subsection (1):
(i) in all cases—the
amount that would have been ascertained under paragraph (1)(h) as
representing that component if:
(A) paragraph (1)(e)
had applied in relation to the fringe benefit; and
(B) a
declaration of the kind referred to in subparagraph (1)(e)(i) had been
given to the employer;
(ii) in a case where the
average number of business kilometres per week travelled by the car during the
holding period exceeded 96—the amount that would have been ascertained under paragraph (1)(j)
as representing that component if:
(A) subparagraph (1)(e)(ii)
had applied in relation to that fringe benefit; and
(B) a declaration
of the kind referred to in subparagraph (1)(e)(i) had not been given to
the employer; and
(C) a
declaration of the kind referred to in
sub-subparagraph (1)(e)(ii)(B) had been given to the employer;
this Act applies, and shall be deemed always to have
applied, as if the amount represented by that component had been calculated as
mentioned in whichever of subparagraphs (b)(i) or (ii) of this subsection
is applicable.
(4) Nothing in section 74 prevents the
amendment of an assessment for the purpose of giving effect to subsection (3).
(5) For the purposes of paragraph (1)(k)
(which applies to a residual fringe benefit that, under subsection 138(3), is
deemed to have been provided to an employee only), the amount is calculated in
accordance with the formula:
where:
employee’s percentage of interest:
(a) is the percentage of the interest
held by the employee, during a period (in this subsection called the holding
period) in the year of tax, in the asset or other thing:
(i) to which the residual
fringe benefit relates; and
(ii) that is applied or
used for the purpose of producing assessable income of the employee; and
(b) does not include the percentage of
the interest held in that asset or other thing by the employee’s associate or
associates during the holding period.
unadjusted ND is the amount that would be
ascertained as representing the component ND in the formula in
subsection (1) if paragraph (1)(k) did not apply in relation to the
residual fringe benefit.
Division 13—Miscellaneous exempt benefits
53
Motor vehicle fringe benefit fuel etc. to be exempt in certain cases
(1) For the purposes of this Act:
(a) a car expense payment benefit;
(b) a car property benefit; or
(c) a car residual benefit;
in respect of a car, being a benefit that is attributable
to a period when a car fringe benefit was provided, or would but for subsection
8(2) have been provided, in relation to the car, is an exempt benefit.
(2) Where the provision or use of a motor
vehicle would, but for subsection 47(6), be a residual fringe benefit in
relation to a period in a year of tax, subsection (1) applies in relation
to the motor vehicle as if:
(a) the motor vehicle were a car; and
(b) a car fringe benefit were provided
during that period in relation to the motor vehicle.
(3) In this section:
car expense payment benefit means an expense
payment benefit where the recipients expenditure is a car expense.
car property benefit means a property benefit
where, if the recipient had incurred expenditure in respect of the provision of
the recipients property, that expenditure would have been a car expense.
car residual benefit means a residual benefit
where, if the recipient had incurred expenditure in respect of the provision of
the recipients benefit, that expenditure would have been a car expense.
54
Provision of food or drink to be exempt benefit in certain cases
Where:
(a) a board fringe benefit in relation
to an employer is provided on a particular day;
(b) on that day, the provider of the
fringe benefit also provides food or drink (not being a meal) to the recipient
of the fringe benefit; and
(c) the food or drink:
(i) is provided to, and
consumed by, the recipient on that day on eligible premises of the employer;
and
(ii) is not provided at a
party, reception or other social function;
the provision of the food or drink is an exempt benefit.
55
Benefits provided by certain international organisations to be exempt
A benefit provided in respect of the
employment of an employee of an employer is an exempt benefit if:
(a) the employer is an organisation
that, but for subsections 66(2) and (3), would be exempt from a liability to
pay tax in respect of the benefit by virtue of the operation of the International
Organisations (Privileges and Immunities) Act 1963; or
(b) the employer is an organisation
established by an agreement to which Australia is a party and which obliges Australia
to grant the employer an exemption from a liability to pay tax in respect of
the benefit.
56
Preservation of diplomatic and consular immunities
A benefit that, but for subsections
66(2) and (3), would be exempt from tax by virtue of the Consular Privileges
and Immunities Act 1972 or the Diplomatic Privileges and Immunities Act
1967 is an exempt benefit.
57
Exempt benefits—employees of religious institutions
Where:
(a) the employer of an employee is a
religious institution;
(b) the employee is a religious
practitioner;
(c) a benefit is provided to, or to a
spouse or a child of, the employee; and
(d) the benefit is not provided principally
in respect of duties of the employee other than:
(i) any pastoral duties;
or
(ii) any other duties or
activities that are directly related to the practice, study, teaching or
propagation of religious beliefs;
the benefit is an exempt benefit.
57A
Exempt benefits—public benevolent institutions, health promotion charities,
some hospitals and public ambulance services
(1) Where the employer of an employee is a
public benevolent institution endorsed under subsection 123C(1) or (5), a
benefit provided in respect of the employment of the employee is an exempt
benefit.
(2) Where:
(a) the employer of an employee is a
government body; and
(b) the duties of the employment of
the employee are exclusively performed in, or in connection with:
(i) a public hospital; or
(iii) a hospital carried on
by a society that is a non‑profit society for the purposes of section 65J
or by an association that is a non‑profit association for the purposes of
section 65J;
a benefit provided in respect of the employment of the
employee is an exempt benefit.
(3) A benefit provided in respect of the
employment of an employee is an exempt benefit if:
(a) the employer of the employee is a
public hospital; or
(b) the employer provides public
ambulance services or services that support those services and the employee is
predominantly involved in connection with the provision of those services.
(4) A benefit provided in respect of the
employment of an employee is an exempt benefit if the employer of the employee
is a hospital carried on by:
(a) a society that is a non‑profit
society for the purposes of section 65J; or
(b) an association that is a non‑profit
association for the purposes of section 65J.
Note: Subsection 65J(5) explains:
(a) which societies are non‑profit societies
for the purposes of section 65J; and
(b) which associations are non‑profit
associations for the purposes of section 65J.
(5) A benefit provided in respect of the
employment of an employee is an exempt benefit if:
(a) the employer of the employee is a
health promotion charity; and
(b) the health promotion charity is
endorsed under subsection 123D(1).
58
Exempt benefits—live‑in residential care workers
(1) Where, during a period:
(a) the employer of an employee is:
(i) a government body; or
(ii) a religious
institution or a non‑profit company;
whose activities consist of, or
include, caring for elderly persons or disadvantaged persons;
(b) the duties of the employment of
the employee consist of, or consist principally of:
(i) caring for elderly persons
and any children of those elderly persons who reside with those elderly
persons; or
(ii) caring for
disadvantaged persons and any children of those disadvantaged persons who
reside with those disadvantaged persons;
(c) in the performance of those duties,
the employee lives, together with elderly persons or disadvantaged persons, in
residential premises of the employer; and
(d) the fact that the person lives in
those premises is directly related to the provision, in the course of the
performance of the duties of the employment of the employee, of care to the
elderly persons or disadvantaged persons living in those premises;
any benefit arising from the provision, during that
period, of:
(e) that accommodation to the employee
or to the employee and a spouse or child of the employee who resides in those
premises with the employee;
(f) residential fuel in connection
with that accommodation for use by the employee or by the employee and a spouse
or child of the employee; or
(g) meals provided on those premises
to the employee or to a spouse or child of the employee who resides in those
premises with the employee;
(h) food or drink (other than meals)
for consumption during that period by the employee or by a spouse or child of
the employee who resides in those premises with the employee;
is an exempt benefit.
(2) In this section:
residential premises means a house or hostel
used exclusively for the provision of residential accommodation to:
(a) elderly persons or disadvantaged
persons and children of elderly persons or disadvantaged persons;
(b) persons the duties of whose
employment consist of, or consist principally of, caring for persons referred
to in paragraph (a); and
(c) spouses and children of persons
referred to in paragraph (b).
58A
Exempt benefits—employment interviews and selection tests
Where:
(a) a car benefit, an expense payment
benefit, a property benefit or a residual benefit is provided in, or in respect
of, a year of tax in respect of the employment of an employee of an employer;
(b) the benefit is in respect of an
employment interview or selection test; and
(c) in the case of an expense payment
benefit:
(i) the benefit is not
constituted by the reimbursement of the recipient, in whole or in part, in
respect of an amount of a Division 28 car expense incurred by the
recipient in relation to a car owned by, or leased to, the recipient, being a
reimbursement calculated by reference to the distance travelled by the car; and
(ii) documentary evidence
of the recipients expenditure is obtained by the recipient and that documentary
evidence, or a copy, is given to the employer before the declaration date;
the benefit is an exempt benefit in relation to the year
of tax.
58AA
Exempt benefits—engagement of relocation consultant
(1) A benefit is an exempt benefit in
relation to a year of tax if:
(a) the benefit is an expense payment
benefit, or a residual benefit, provided in, or in respect of, the year of tax
in respect of the employment of an employee; and
(b) the benefit is in respect of, or
consists of, the engagement of a relocation consultant; and
(c) the engagement of the relocation
consultant is required solely for one or more of the following reasons:
(i) the employee is
required to live away from his or her usual place of residence to perform the
duties of the employment mentioned in paragraph (a) (the new
employment duties);
(ii) having lived away from
his or her usual place of residence to perform the new employment duties, the
employee is required to return there to perform them, or because the employee
has ceased to perform them;
(iii) the employee is
required to change his or her usual place of residence to perform those duties;
and
(d) the relocation consultant is
engaged to help a family member:
(i) if subparagraph (c)(i)
applies—to settle, or to remain, at or near the location where the employee
performs the new employment duties while living away from his or her usual
place of residence; or
(ii) if subparagraph (c)(ii)
applies—to settle at the location of the employee’s usual place of residence;
or
(iii) if subparagraph (c)(iii)
applies—to settle, or to remain, at the location of the employee’s new usual
place of residence; and
(e) the benefit is not provided under
a non‑arm’s length arrangement; and
(f) if the benefit is an expense
payment benefit—documentary evidence of the recipients expenditure is obtained
by the recipient and that documentary evidence, or a copy, is given to the
employer before the declaration date.
(2) Without limiting subsection (1), a
reference in that subsection to helping a family member to settle, or to
remain, at a location includes:
(a) a relocation consultant finding,
or providing information to the family member about, accommodation for the
family member at the location; or
(b) a relocation consultant providing
information to the family member about education facilities or other community
amenities and services at the location;
but does not include a reference to a relocation
consultant paying expenses on behalf of a family member.
58B
Exempt benefits—removals and storage of household effects as a result of
relocation
(1) Where:
(a) either of the following benefits
is provided in, or in respect of, a year of tax in respect of the employment of
an employee:
(i) an expense payment benefit
where the recipients expenditure is in respect of the removal or storage of
household effects of the employee;
(ii) a residual benefit
where the recipients benefit consists of the removal or storage of household
effects of the employee;
(b) the removal or storage is required
solely because:
(i) the employee is
required to live away from his or her usual place of residence in order to
perform the duties of that employment;
(ii) the employee, having
lived away from his or her usual place of residence in order to perform the
duties of that employment, is required to return to his or her usual place of
residence:
(A) in order
to perform those duties; or
(B) because
the employee has ceased to perform those duties; or
(iii) the employee is
required to change his or her usual place of residence in order to perform the
duties of that employment;
(c) the removal or storage is required
to enable a family member to:
(i) if subparagraph (b)(i)
applies—take up residence, or to continue to reside, at or near the place where
the employee performs the duties of that employment while living away from his
or her usual place of residence;
(ii) if subparagraph (b)(ii)
applies—take up residence at the employee’s usual place of residence; or
(iii) if subparagraph (b)(iii)
applies—take up residence, or to continue to reside, at the employee’s new
usual place of residence;
(d) if subparagraph (b)(iii)
applies:
(i) the removal takes
place, or the storage commences to be provided, within 12 months after the day
on which the employee commenced to perform the duties of that employment at the
employee’s new place of employment; and
(ii) the benefit is not
provided under a non‑arm’s length arrangement;
(e) if subparagraph (a)(i)
applies—documentary evidence of the recipients expenditure is obtained by the
recipient and that documentary evidence, or a copy, is given to the employer
before the declaration date; and
(f) the removal or storage was not
provided in connection with travel undertaken by the employee in the course of
performing the duties of that employment;
the benefit is an exempt benefit in relation to the year
of tax.
(2) For the purposes of this section:
(a) a reference to the household
effects of an employee is a reference to tangible property (whether or not
owned by a family member) kept primarily for the personal use of family
members; and
(b) without limiting the generality of
an expression used in subsection (1), the recipients expenditure shall be
taken to be in respect of, and the recipients benefit shall be taken to consist
of, the removal or storage of household effects if the expenditure or benefit
is in respect of, or consists of, the transport, packing, unpacking or
insurance of the household effects in connection with the removal or storage of
the household effects.
58C
Exempt benefits—sale or acquisition of dwelling as a result of relocation
(1) Where:
(a) during a particular period (in
this subsection called the former home holding period), an
employee of an employer, or an associate of an employee of an employer, holds:
(i) a prescribed interest
in land on which:
(A) there is
a building constituting or containing a dwelling;
(B) the
employee or associate proposes to construct, or complete the construction of, a
building constituting or containing a dwelling;
(ii) a prescribed interest
in a stratum unit in relation to a dwelling; or
(iii) a proprietary right in
respect of a dwelling, being a flat or home unit;
(b) the employee or associate sells or
proposes to sell, the interest or right solely because the employee is required
to change his or her usual place of residence in order to perform the duties of
his or her employment;
(c) the employer first notifies the
employee at a time (in this subsection called the notice time)
during the former home holding period that the employee is required to perform
the duties of that employment at the employee’s new place of employment; and
(d) at the notice time, the employee
occupied, or proposed to occupy, the dwelling, or proposed to occupy the
proposed dwelling, as his or her usual place of residence;
the following subsections have effect.
(2) Where:
(a) either of the following benefits
is provided in respect of that employment of the employee in, or in respect of,
a year of tax:
(i) an expense payment
benefit where the recipients expenditure is incidental to the sale of that
interest or right;
(ii) a residual benefit
where the recipients benefit is incidental to the sale of that interest or
right;
(aa) the employee or associate entered
into a contract for the sale of the interest or right within 2 years after the
day (the new employment day) on which the employee commenced to
perform the duties of that employment at the employee’s new place of
employment;
(b) if, apart from this paragraph,
this subsection would apply in relation to 2 or more dwellings or proposed
dwellings in relation to the change in the employee’s usual place of
residence—the employer of the employee elects that this subsection apply in
relation to only one of those dwellings or proposed dwellings;
(c) if paragraph (b) applies—the
benefit relates to the dwelling or proposed dwelling in respect of which the
election is made;
(d) if subparagraph (a)(i)
applies—documentary evidence of the recipients expenditure is obtained by the
recipient and that documentary evidence, or a copy, is given to the employer
before the declaration date; and
(e) the benefit is not provided under
a non‑arm’s length arrangement;
the benefit is an exempt benefit in relation to the year
of tax.
(3) Where:
(a) at a particular time, the employee
or an associate of the employee acquires:
(i) a prescribed interest
in land on which:
(A) there is
a building constituting or containing another dwelling;
(B) the
employee or associate proposes to construct, or complete the construction of, a
building constituting or containing another dwelling;
(ii) a prescribed interest
in a stratum unit in relation to another dwelling; or
(iii) a proprietary right in
respect of another dwelling, being a flat or home unit;
(b) the employee or associate acquires
the interest or right solely because the employee is required to change his or
her usual place of residence in order to perform the duties of that employment
at the employee’s new place of employment;
(c) the employee or associate entered
into a contract for the acquisition of the interest or right on a day (the contract
day) within 4 years after the new employment day;
(ca) if, on the contract day, the
employee or associate holds an interest or right in another dwelling in a
situation where:
(i) if that interest or
right were sold within 2 years after the new employment day; and
(ii) if a benefit of a kind
referred to in subsection (2) were provided in relation to that interest
or right;
the benefit would be an exempt
benefit under subsection (2)—not more than 2 years have elapsed since the
new employment day;
(d) immediately after the completion
of the acquisition, the employee occupied the other dwelling, or proposed to
occupy the other proposed dwelling, as his or her usual place of residence;
(e) any of the following benefits is
provided in respect of that employment of the employee in, or in respect of, a
year of tax:
(i) an expense payment
benefit where the recipients expenditure is incidental to the acquisition of
that interest or right;
(ii) a residual benefit
where the recipients benefit is incidental to the acquisition of that interest
or right;
(iii) an expense payment
benefit where the recipients expenditure is in respect of the act of connecting
or re‑connecting a telephone service to the other dwelling or proposed
dwelling;
(iv) a residual benefit
where the recipients benefit is constituted by the act of connecting or re‑connecting
a telephone service to the other dwelling or proposed dwelling;
(v) an expense payment
benefit where the recipients expenditure is in respect of the act of re‑connecting
gas or electricity to the other dwelling or proposed dwelling;
(vi) a residual benefit
where the recipients benefit is constituted by the act of re‑connecting
gas or electricity to the other dwelling or proposed dwelling;
(f) if subparagraph (e)(iii) or
(iv) applies—immediately before the change, a telephone service was provided to
the unit of accommodation that was the employee’s usual place of residence
before the change;
(g) if subparagraph (e)(i), (iii)
or (v) applies—documentary evidence of the recipients expenditure is obtained
by the recipient and that documentary evidence, or a copy, is given to the
employer before the declaration date; and
(h) the benefit is not provided under
a non‑arm’s length arrangement;
the benefit is an exempt benefit in relation to the year
of tax.
(4) An election by an employer under subsection (2)
in relation to a year of tax:
(a) shall be made by notice in writing
to the Commissioner; and
(b) shall be lodged with the
Commissioner on or before the declaration date.
(5) If:
(a) a benefit is an exempt benefit in
relation to a year of tax under subsection (3); and
(b) paragraph (3)(ca) applied to
the employee; and
(c) the employee or associate does not
enter into a contract for the sale of the interest or right in the other
dwelling referred to in that paragraph within 2 years after the new employment
day;
this Act has effect as if:
(d) a benefit equivalent to the exempt
benefit were provided in respect of the employment of the employee in, or in
respect of, the year of tax in which that period of 2 years expired; and
(e) that equivalent benefit were not
an exempt benefit.
58D
Exempt benefits—connection or re‑connection of certain utilities as a
result of relocation
(1) Where:
(a) either of the following benefits
is provided in, or in respect of, a year of tax in respect of the employment of
an employee of an employer:
(i) an expense payment
benefit where the recipients expenditure is in respect of the act of connecting
or re‑connecting a telephone service to a unit of accommodation;
(ii) a residual benefit
where the recipients benefit is constituted by the act of connecting or re‑connecting
a telephone service to a unit of accommodation;
(b) the unit of accommodation is for
the accommodation of family members;
(c) the accommodation is required
solely because:
(i) the employee is
required to live away from his or her usual place of residence in order to
perform the duties of that employment; or
(ii) the employee is
required to change his or her usual place of residence in order to perform the
duties of that employment;
(d) if subparagraph (a)(i)
applies—documentary evidence of the recipients expenditure is obtained by the
recipient and that documentary evidence, or a copy, is given to the employer
before the declaration date; and
(e) if subparagraph (c)(ii)
applies:
(i) the telephone service
is connected or re‑connected not later than 12 months after the day on
which the employee commenced to perform the duties of that employment at the
employee’s new place of employment;
(ii) immediately before the
change, a telephone service was provided to the unit of accommodation that was
the employee’s usual place of residence before the change; and
(iii) the benefit was not
provided under a non‑arm’s length arrangement;
the benefit is an exempt benefit in relation to the year
of tax.
(2) Where:
(a) either of the following benefits
is provided in, or in respect of, a year of tax in respect of the employment of
an employee of an employer:
(i) an expense payment
benefit where the recipients expenditure is in respect of the act of re‑connecting
gas or electricity to a unit of accommodation;
(ii) a residual benefit
where the recipients benefit is constituted by the act of re‑connecting
gas or electricity to a unit of accommodation;
(b) the unit of accommodation is for
the accommodation of family members;
(c) the accommodation is required
solely because:
(i) the employee is
required to live away from his or her usual place of residence in order to
perform the duties of that employment; or
(ii) the employee is
required to change his or her usual place of residence in order to perform the
duties of that employment;
(d) if subparagraph (a)(i)
applies—documentary evidence of the recipients expenditure is obtained by the
recipient and that documentary evidence, or a copy, is given to the employer
before the declaration date; and
(e) if subparagraph (c)(ii)
applies:
(i) the gas or electricity
is re‑connected not later than 12 months after the day on which the
employee commenced to perform the duties of that employment at the employee’s
new place of employment; and
(ii) the benefit was not
provided under a non‑arm’s length arrangement;
the benefit is an exempt benefit in relation to the year
of tax.
58E
Exempt benefits—leasing of household goods while living away from home
Where:
(a) either of the following benefits
(in this section called a household goods leasing benefit) is
provided in, or in respect of, a year of tax in respect of the employment of an
employee:
(i) an expense payment
benefit where the recipients expenditure is in respect of a lease or licence in
respect of goods;
(ii) a residual benefit
where the recipients benefit consists of the subsistence of a lease or licence
in respect of goods;
(b) the goods are primarily for
domestic use by, and in connection with accommodation for, family members;
(c) either of the following benefits
is provided in, or in respect of, the year of tax to the employee in respect of
that employment:
(i) an expense payment
benefit where the recipients expenditure is in respect of a lease or licence in
respect of that accommodation;
(ii) a residual benefit
where the recipients benefit is constituted by the subsistence of a lease or
licence in respect of that accommodation; and
(d) by virtue of section 21 or
subsection 47(5), the benefit referred to in paragraph (c) is an exempt
benefit in relation to the year of tax;
the household goods leasing benefit is an exempt benefit
in relation to the year of tax.
58F
Exempt benefits—relocation transport
Where:
(a) a car benefit, an expense payment
benefit, a property benefit or a residual benefit is provided in, or in respect
of, a year of tax in respect of the employment of an employee of an employer;
(b) the benefit is in respect of
relocation transport; and
(c) in the case of an expense payment
benefit:
(i) the benefit is not
constituted by the reimbursement of the recipient, in whole or in part, in
respect of an amount of a Division 28 car expense incurred by the
recipient in relation to a car owned by, or leased to, the recipient, being a
reimbursement calculated by reference to the distance travelled by the car; and
(ii) documentary evidence
of the recipients expenditure is obtained by the recipient and that documentary
evidence, or a copy, is given to the employer before the declaration date;
the benefit is an exempt benefit in relation to the year
of tax.
58G
Exempt benefits—motor vehicle parking
(1) Each of the following benefits is an
exempt benefit:
(a) an expense payment benefit, where:
(i) the recipients
expenditure is in respect of the provision of motor vehicle parking facilities;
and
(ii) the benefit is not an
eligible car parking expense payment benefit;
(b) a residual benefit where the
recipients benefit consists of motor vehicle parking facilities.
(2) If the employer of an employee is:
(a) a scientific institution (other
than an institution carried on by a company, society or association for the
purposes of profit or gain to its individual shareholders or members); or
(b) a religious institution; or
(c) a charitable institution; or
(d) a public educational institution;
the following benefits provided in respect of the
employment of the employee are exempt benefits:
(e) an eligible car parking expense
payment benefit;
(f) a car parking benefit.
(3) If:
(a) the employer of an employee is a
government body; and
(b) the employee is exclusively employed
in, or in connection with, a public educational institution;
the following benefits provided in respect of the
employment of the employee are exempt benefits:
(c) an eligible car parking expense
payment benefit;
(d) a car parking benefit.
58GA
Exempt benefits—small business car parking
Exemption
(1) A car parking benefit provided in an FBT
year in respect of the employment of an employee is an exempt benefit if:
(a) the car is not parked at a
commercial parking station; and
(b) the employer of the employee is
not a public company (see subsection (3)), or a subsidiary of a public
company (see subsection (3)), in relation to the day on which the benefit
is provided; and
(c) the employer is not a government
body; and
(d) either:
(i) the sum of the
employer’s ordinary income and statutory income for the year of income ending
most recently before the start of the FBT year is less than $10 million; or
(ii) the employer is a
small business entity for the year of income ending most recently before the start
of the FBT year.
New employers
(2) However, if an employer to which
subparagraph (1)(d)(i) applies:
(a) in the case of a tax‑exempt
employer (see subsection (3))—did not start to carry out operations or
activities; or
(b) in any other case—did not start to
carry out business operations;
until after the start of the year of income mentioned in
subparagraph (1)(d)(i), then:
(c) that subparagraph does not apply;
and
(d) the employer must make a
reasonable estimate of the amount that would be the sum of the employer’s
ordinary income and statutory income for the year of income (the business
start‑up year) in which the employer did start those operations
or activities, or those business operations; and
(e) that estimate is to be made on the
assumption that the employer had started the operations or activities, or the
business operations, at the start of the business start‑up year; and
(f) the benefit is an exempt benefit
only if that estimate is less than $10 million.
Definitions
(3) In this
section:
ordinary income has the same meaning as in
the Income Tax Assessment Act 1997.
public company means a company covered by
paragraph 103A(2)(a) of the Income Tax Assessment Act 1936, but reading
the reference in that paragraph to the last day of the year of income as a
reference to the day on which the benefit is provided.
small business entity has the meaning
given by subsection 995‑1(1) of the Income Tax Assessment Act 1997.
statutory income has the same meaning as in
the Income Tax Assessment Act 1997.
subsidiary of a public company means a
subsidiary of a public company within the meaning of subsection 103A(4) of the Income
Tax Assessment Act 1936, but reading:
(a) a reference in section 103A
of that Act to a year of income as a reference to the day on which the benefit
is provided; and
(b) a reference in that section to a
public company as a reference to a public company within the meaning of this
section.
tax‑exempt employer means an employer
all of whose income is wholly exempt from income tax.
58H Exempt
benefits—newspapers and periodicals used for business purposes
(1) Where:
(a) any of the following benefits is
provided to an employee in respect of his or her employment:
(i) an expense payment
benefit where the recipients expenditure is in respect of a newspaper or
periodical;
(ii) a property benefit
where the recipients property is a newspaper or periodical;
(iii) a residual benefit
where the recipients benefit consists of the making available of a newspaper or
periodical; and
(b) the newspaper or periodical was
for use by the employee for the purpose, or for purposes that included the
purpose, of gaining or producing salary or wages of the employee in respect of
that employment;
the benefit is an exempt benefit.
(2) In determining for the purposes of paragraph (1)(b)
whether a newspaper or periodical was for use for the purpose of gaining or
producing salary or wages, no regard shall be had to a purpose that is a merely
incidental purpose.
58J
Exempt benefits—compensable work‑related trauma
(1) Where:
(a) a benefit is provided in respect
of the employment of an employee for or in respect of compensable work‑related
trauma suffered by the employee; and
(b) either of the following
subparagraphs applies:
(i) the benefit is
provided under a workers’ compensation law that applies to that employment;
(ii) the benefit is not
provided under a workers’ compensation law but the provision of the benefit is
reasonable having regard to all relevant matters including, but without
limiting the generality of the foregoing, the value of the benefit and the
nature and effects of the trauma;
the benefit is an exempt benefit.
(2) Where:
(a) a residual benefit provided in, or
in respect of, a year of tax in respect of the employment of an employee is
constituted by the subsistence, during the year of tax, of a contingent right
(whether arising under a contract of insurance or otherwise) to a benefit for
or in respect of compensable work‑related trauma suffered by the
employee; and
(b) in the case of a contingent right
arising under a contract of insurance—the contract of insurance does not
provide for a benefit that is not for or in respect of compensable work‑related
trauma suffered by any employee;
the benefit is an exempt benefit in relation to the year
of tax.
58K
Exempt benefits—in‑house health care facilities
Where:
(a) a benefit consisting of the
provision of health care is provided in respect of the employment of an
employee of an employer; and
(b) the health care is provided:
(i) in an in‑house health
care facility of the employer; or
(ii) by a member of the
staff of an in‑house health care facility of the employer in the
performance of his or her duties as such a member;
the benefit is an exempt benefit.
58L
Exempt benefits—certain travel to obtain medical treatment
(1) Where:
(a) a person (in this subsection
called the traveller):
(i) is provided with
transport by another person; or
(ii) provides transport for
himself or herself;
(b) any of the following benefits is
provided in, or in respect of, a year of tax in respect of the employment of an
employee of an employer:
(i) a car benefit relating
to a particular car where the application or availability of the car is in
respect of the provision of the transport;
(ii) an expense payment benefit
where the recipients expenditure is in respect of the provision of:
(A) the
transport; or
(B) meals or
accommodation for the traveller;
(iii) a property benefit
where the recipients property consists of meals for the traveller;
(iv) a residual benefit
where the recipients benefit consists of the provision of:
(A) the
transport; or
(B) accommodation
for the traveller;
(c) the transport is required solely
because a person (in this subsection called the patient) requires
medical treatment;
(d) the medical treatment is provided
in a particular place (in this subsection called the treatment place)
at a time during a period when the employee is, or would but for that
requirement to obtain treatment or any other temporary absence be, performing
the duties of that employment in another place (in this subsection called the overseas
employment place), being a place in:
(i) a foreign country;
(ii) a part of a foreign
country; or
(iii) a territory,
dependency or colony (however described) of a foreign country;
(e) the transport is between:
(i) a place at or near the
overseas employment place; and
(ii) a place at or near the
treatment place;
(f) if the patient is not the
employee—the patient is a family member and lives with the employee at or near
the overseas employment place;
(g) if the traveller is not the
patient—either of the following conditions is satisfied:
(i) the traveller
accompanies the patient because:
(A) the
patient has not attained the age of 18 years and requires the traveller as an
escort; or
(B) the
patient requires the traveller as an escort for medical reasons;
(ii) the traveller is a
family member and accompanies or visits the patient where it is customary for
family members to accompany or visit patients receiving medical treatment of
the same nature and duration as the medical treatment required by the patient;
(h) the meals or accommodation:
(i) are:
(A) in
connection with the transport; or
(B) required
solely in connection with the presence of the traveller at the treatment place
for purposes related to the medical treatment of the patient; and
(ii) where sub-subparagraph (i)(B)
applies and the traveller is the patient—are not provided to the patient in a
hospital, clinic or similar place in connection with the medical treatment of
the patient;
(j) either of the following
conditions is satisfied:
(i) the treatment place
was the place nearest to the overseas employment place at which medical
treatment suitable for the patient could be provided;
(ii) the total cost associated
with obtaining medical treatment at the treatment place was equal to, or less
than, the lowest total cost associated with obtaining medical treatment at any
of the places at which medical treatment suitable for the patient could have
been provided; and
(k) if subparagraph (b)(ii)
applies—documentary evidence of the recipients expenditure is obtained by the
recipient and that documentary evidence, or a copy, is given to the employer
before the declaration date;
the benefit is an exempt benefit in relation to the year
of tax.
(2) A reference in this section to medical
treatment is a reference to an act or thing where a payment in respect of the
act or thing is a medical expense within the meaning of section 159P of
the Income Tax Assessment Act 1936.
58LA
Exempt benefits—compassionate travel
Where:
(a) any of the following benefits is
provided in, or in respect of, a year of tax in respect of the employment of an
employee of an employer, being benefits in relation to the transport of a
person (in this section called the traveller) who is the employee
or a close relative of the employee:
(i) a car benefit relating
to a particular car where the application or availability of the car is in
respect of the provision of the transport;
(ii) an expense payment
benefit where the recipients expenditure is in respect of the provision of:
(A) the
transport; or
(B) meals or
accommodation for the traveller in connection with the transport;
(iii) a property benefit
where the recipients property consists of meals for the traveller in connection
with the transport;
(iv) a residual benefit
where the recipients benefit consists of the provision of:
(A) the
transport; or
(B) accommodation
for the traveller in connection with the transport;
(b) the sole reason that the transport
is required is:
(i) if the traveller is
the employee:
(A) to
enable the traveller to attend the funeral of a close relative of the
traveller; or
(B) to
enable the traveller to visit a close relative of the traveller in connection
with a serious illness of the close relative or of the traveller; or
(ii) if the traveller is a
close relative of the employee:
(A) to
enable the traveller to attend the funeral of the employee;
(B) to
enable the traveller to visit the employee in connection with a serious illness
of the employee or of the traveller;
(C) to
enable the traveller to attend the funeral of another close relative of the
employee; or
(D) to
enable the traveller to visit another close relative of the employee in
connection with a serious illness of the other close relative or of the
traveller;
(c) the travel to which the transport
relates commences during a period in respect of which any of the following
conditions is satisfied (or, in a case to which sub-subparagraph (b)(ii)(A)
applies, would have been satisfied but for the employee’s death):
(i) during that period,
the employee is undertaking travel in the course of performing the duties of
that employment;
(ii) in a case to which subparagraph (i)
does not apply—the employee is required, during that period, to live away from
his or her usual place of residence in order to perform the duties of that
employment;
(iii) in a case to which
neither subparagraph (i) nor (ii) applies—during that period, the usual
place of residence of the employee is at, or the employee is performing duties
of that employment at, a place that:
(A) is in a
State or internal Territory; and
(B) is not
at a location in, or adjacent to, an eligible urban area;
(d) in a case to which sub-subparagraph (b)(ii)(C)
or (D) applies—the travel to which the transport relates commences during a
period during which the traveller ordinarily resides with the employee; and
(e) if subparagraph (a)(ii)
applies and the recipients expenditure is incurred after 25 May 1988—documentary
evidence of the recipients expenditure is obtained by the recipient and that
documentary evidence, or a copy, is given to the employer before the
declaration date;
the benefit is an exempt benefit in relation to the year
of tax.
58M
Exempt benefits—work‑related medical examinations, work‑related
medical screening, work‑related preventative health care, work‑related
counselling, migrant language training
(1) Where any of the following benefits is
provided in respect of the employment of an employee:
(a) an expense payment benefit where
the recipients expenditure is in respect of:
(i) a work‑related
medical examination of the employee;
(ii) work‑related
medical screening of the employee;
(iii) work‑related
preventative health care of the employee;
(iv) work‑related
counselling of the employee or of an associate of the employee; or
(v) migrant language
training of the employee or of an associate of the employee;
(b) a property benefit where the
recipients property is required solely for the purposes of:
(i) a work‑related
medical examination of the employee;
(ii) work‑related
medical screening of the employee;
(iii) work‑related
preventative health care of the employee;
(iv) work‑related
counselling of the employee or of an associate of the employee; or
(v) migrant language
training of the employee or of an associate of the employee;
(c) a residual benefit where the
recipients benefit consists of the provision of:
(i) a work‑related
medical examination of the employee;
(ii) work‑related
medical screening of the employee;
(iii) work‑related
preventative health care of the employee;
(iv) work‑related
counselling of the employee or of an associate of the employee; or
(v) migrant language
training of the employee or of an associate of the employee;
the benefit is an exempt benefit.
(2) Where:
(a) a car benefit, an expense payment
benefit, a property benefit or a residual benefit is provided in, or in respect
of, a year of tax in respect of the employment of an employee of an employer;
(b) the benefit is associated with:
(i) a work‑related
medical examination of the employee;
(ii) work‑related
medical screening of the employee;
(iii) work‑related
preventative health care of the employee;
(iv) work‑related
counselling of the employee or of an associate of the employee; or
(v) migrant language
training of the employee or of an associate of the employee; and
(c) in the case of an expense payment
benefit:
(i) the benefit is not
constituted by the reimbursement of the recipient, in whole or in part, in
respect of an amount of a Division 28 car expense incurred by the
recipient in relation to a car owned by, or leased to, the recipient, being a
reimbursement calculated by reference to the distance travelled by the car; and
(ii) documentary evidence
of the recipients expenditure is obtained by the recipient and that documentary
evidence, or a copy, is given to the employer before the declaration date;
the benefit is an exempt benefit in relation to the year
of tax.
58N
Exempt benefits—emergency assistance
Where:
(a) a benefit is provided in respect
of the employment of an employee of an employer;
(b) the benefit is provided solely by
way of the grant of emergency assistance to the recipient; and
(c) if the benefit is:
(i) an expense payment
benefit where the recipients expenditure is wholly or partly in respect of
health care;
(ii) a property benefit
where the recipients property is supplied in connection with the provision of
health care;
(iii) a residual benefit
where the recipients benefit consists of the provision of health care; or
(iv) a loan benefit
constituted by the making of a loan where the purpose of the making of the loan
is wholly or partly to enable the recipient to meet expenses incurred by the
recipient in respect of health care;
the health care is provided:
(v) by an employee of the
employer or, if the employer is a company, of the employer or of a company that
is related to the employer;
(vi) on premises of the
employer or, if the employer is a company, of the employer or of a company that
is related to the employer; or
(vii) at or adjacent to a
place where employees of the employer or, if the employer is a company, of the
employer or of a company that is related to the employer perform the duties of
their employment;
the benefit is an exempt benefit.
58P
Exempt benefits—minor benefits
(1) Where:
(a) a benefit (in this section called
a minor benefit) is provided in, or in respect of, a year of tax
(in this section called the current year of tax) in respect of the
employment of an employee of an employer;
(b) the benefit is not an airline
transport benefit;
(c) in the case of an expense payment
benefit, a property benefit or a residual benefit—if the minor benefit were an
expense payment fringe benefit, a property fringe benefit or a residual fringe
benefit, as the case may be, in relation to the employer, the expense payment
fringe benefit, the property fringe benefit or the residual fringe benefit, as
the case requires, would not be an in‑house fringe benefit;
(d) in the case of a tax‑exempt
body entertainment benefit where the provider incurs non‑deductible
exempt entertainment expenditure that is wholly or partly in respect of the
provision of entertainment to the employee or an associate of the employee:
(i) the provision of
entertainment to the employee or the associate of the employee, as the case may
be:
(A) is
incidental to the provision of entertainment to outsiders; and
(B) neither
consists of, nor is provided in connection with, the provision of a meal (other
than a meal consisting of light refreshments) to the employee or the associate
of the employee, as the case may be; or
(ii) the entertainment is
provided to the employee or the associate of the employee, as the case may be:
(A) on
eligible premises of the employer; and
(B) solely
as a means of recognising the special achievements of the employee in a matter
relating to the employment of the employee;
(e) the notional taxable value of the
minor benefit in relation to the current year of tax is less than $300; and
(f) having regard to:
(i) the infrequency and
irregularity with which associated benefits, being benefits that are identical
or similar to:
(A) the
minor benefit; or
(B) benefits
provided in connection with the provision of the minor benefit;
have been or can
reasonably be expected to be provided;
(ii) the amount that is, or
might reasonably be expected to be, the sum of the notional taxable values of
the minor benefit and any associated benefits, being benefits that are identical
or similar to the minor benefit, in relation to the current year of tax or any
other year of tax;
(iii) the amount that is, or
might reasonably be expected to be, the sum of the notional taxable values of
any other associated benefits in relation to the current year of tax or any
other year of tax;
(iv) the practical
difficulty for the employer in determining the notional taxable values in
relation to the current year of tax of:
(A) if the
minor benefit is not a car benefit—the minor benefit; and
(B) if there
are any associated benefits that are not car benefits—those associated
benefits; and
(v) the circumstances
surrounding the provision of the minor benefit and any associated benefits
including, but without limiting the generality of the foregoing:
(A) whether
the benefit concerned was provided to assist the employee to deal with an
unexpected event; and
(B) whether
the benefit concerned was provided otherwise than wholly or principally by way
of a reward for services rendered, or to be rendered, by the employee;
it would be concluded that it
would be unreasonable to treat the minor benefit as a fringe benefit in
relation to the employer in relation to the current year of tax;
the minor benefit is an exempt benefit in relation to the
current year of tax.
(2) For the purposes of this section, a
benefit is an associated benefit in relation to a minor benefit if, and only
if:
(a) any of the following subparagraphs
applies:
(i) the benefit is
identical or similar to the minor benefit;
(ii) the benefit is
provided in connection with the provision of the minor benefit;
(iii) the benefit is
identical or similar to a benefit provided in connection with the provision of
the minor benefit;
(b) the benefit and the minor benefit
both relate to the same employment of a particular employee; and
(c) the benefit is not an exempt
benefit by virtue of a provision of this Act other than this section.
58PA
Exempt benefits—worker entitlement contributions
If:
(a) a person makes a contribution to
an approved worker entitlement fund; and
(b) the contribution is made under an
industrial instrument; and
(c) the contribution is either:
(i) made for the purposes
of ensuring that an obligation under the industrial instrument to make leave
payments (including payments in lieu of leave) or payments when an employee
ceases employment is met; or
(ii) for the reasonable
administrative costs of the fund;
the contribution is an exempt benefit.
58PB
Meaning of approved worker entitlement funds
(1) A fund is an approved worker
entitlement fund if the fund:
(a) is established by or under a law
of the Commonwealth, a State or a Territory for the purpose of ensuring that
long service leave is paid; and
(b) is operating under that law.
(2) A fund is also an approved worker
entitlement fund if:
(a) the fund is prescribed for the
purposes of this paragraph; and
(b) a declaration under subsection (3)
is not in force in relation to the fund.
(3) The Treasurer may declare, by legislative
instrument, that a fund is not an approved worker entitlement fund.
(4) Before the Governor‑General makes a
regulation under paragraph (2)(a) prescribing a fund for the purposes of
that paragraph, the Commissioner must be satisfied that:
(a) the management of the fund
(including the management of the investments of the fund) is carried out at
arm’s length from the contributors to the fund and their associates; and
(b) under the fund’s constituting
documents:
(i) no more than 5% of the
total assets of the fund are to be invested in an entity controlled by a
contributor or an associate of a contributor; and
(ii) the assets of the fund
are not to be used to provide or facilitate any form of financial assistance,
including a loan, to a contributor, a person in respect of whom contributions
are made or an associate of a contributor or an associate of a person in
respect of whom contributions are made; and
(c) under the fund’s constituting
documents, payments from contributions to the fund are to be made only for the
following purposes:
(i) to pay worker
entitlements to persons in respect of whom contributions are made, or to death
benefits dependants (within the meaning of the Income Tax Assessment Act
1997) or legal personal representatives (within the meaning of that Act) of
those persons;
(ii) to make investments to
generate income from the assets of the fund;
(iii) to reimburse
contributors who have paid entitlements directly to persons in respect of whom
contributions are made;
(iv) to return contributions
to contributors;
(v) to pay, for the benefit
of a person in respect of whom contributions are made, an employment
termination payment (within the meaning of the Income Tax Assessment Act
1997) into a complying superannuation fund (within the meaning of section 45
of the Superannuation Industry (Supervision) Act 1993), a complying
approved deposit fund (within the meaning of section 47 of the Superannuation
Industry (Supervision) Act 1993) or a retirement savings account (within
the meaning of the Retirement Savings Accounts Act 1997);
(vi) to transfer
contributions to another approved worker entitlement fund;
(vii) to pay the reasonable
administrative expenses of the fund;
(viii) to pay amounts to a
contributor’s external administrator that would otherwise be payable as
mentioned in subparagraph (iii) or (iv) to the contributor;
(ix) to pay interest on, or
to repay, money lent to the fund; and
(d) under the fund’s constituting
documents, payments from the income of the fund are to be made only for the
following purposes:
(i) a purpose mentioned in
subparagraphs (c)(ii) to (ix);
(ii) to make payments to
contributors to the fund;
(iii) to make payments to
other persons where the payment is specified in subsection (5); and
(e) under the fund’s constituting
documents:
(i) an account must be
kept for each person in respect of whom contributions to the fund are made; and
(ii) the account must be
kept in a manner that enables entitlements in respect of the person to be
calculated.
(5) A payment made by a fund to a person in
the following circumstances is specified for the purposes of subparagraph (4)(d)(iii):
(a) a contribution has been made to
the fund in respect of the person; and
(b) the contribution would be an
exempt benefit under section 58PA if the fund were an approved worker
entitlement fund; and
(c) either:
(i) the payment is of a
worker entitlement the contribution for which would be an exempt benefit under
section 58PA if the fund were an approved worker entitlement fund; or
(ii) the payment is of some
kind other than a worker entitlement.
58PC
Exempt benefits—existing worker entitlement funds
(1) If:
(a) a person makes a contribution to
an existing worker entitlement fund or an approved worker entitlement fund; and
(b) the contribution is made in
accordance with existing industrial practice; and
(c) the contribution is either:
(i) made for the purposes
of ensuring that an obligation to make leave payments (including payments in
lieu of leave) or payments when an employee ceases employment is met; or
(ii) for the reasonable
administrative costs of the fund; and
(d) the contribution is made during
the FBT year beginning on 1 April 2003, 1 April 2004 or 1 April 2005;
the contribution is an exempt benefit.
(2) A fund is an existing worker
entitlement fund if the fund accepted contributions during the FBT year
beginning on 1 April 2002 for the purposes of ensuring that obligations to
make leave payments (including payments in lieu of leave) or payments when an
employee ceases employment are met.
(3) A contribution is made in accordance with
existing industrial practice if the taxpayer or another person in
the taxpayer’s industry:
(a) made payments in the FBT year
beginning on 1 April 2002 to an existing worker entitlement fund; or
(b) made payments in the FBT year beginning
on 1 April 2003 to an approved worker entitlement fund;
for the purposes of ensuring that an obligation to make
leave payments (including payments in lieu of leave) or payments when an
employee ceases employment is met.
58Q
Exempt benefits—long service awards
(1) Where:
(a) a long service award benefit (in
this section called the current long service award benefit) is
provided in, or in respect of, a year of tax in respect of the employment of an
employee;
(b) the current long service award
benefit is in recognition of a particular recognised long service period (in
this section called the current recognised long service period)
of the employee;
(c) if there is no other long service
award benefit provided in, or in respect of, any year of tax in respect of that
employment in recognition of a different recognised long service period of the
employee that is shorter than the current recognised long service period—the
sum of the notional taxable values of the current long service award benefit
and any other long service award benefits provided in, or in respect of, any
year of tax in respect of the employment of the employee in recognition of the
current recognised long service period does not exceed the amount calculated in
accordance with the formula:
where RLS is the number of whole
years in the recognised long service period of the employee that was recognised
by the provision of the current long service award benefit; and
(d) if paragraph (c) does not
apply—the sum of the notional taxable values of the current long service award
benefit and any other long service award benefits provided in, or in respect
of, any year of tax in respect of the employment of the employee in recognition
of the current recognised long service period does not exceed the amount
calculated in accordance with the formula:
where:
RLS is the number
of whole years in the recognised long service period of the employee that was
recognised by the provision of the current long service award benefit; and
ERLS is the number
of whole years in the longest recognised long service period of the employee
that:
(i) is shorter than the
current recognised long service period; and
(ii) was recognised by the
provision of one or more long service award benefits in, or in respect of, any
year of tax, in respect of the employment of the employee;
the current long service award benefit is an exempt
benefit in relation to the year of tax.
(2) Nothing in section 74 prevents the
amendment of an assessment for the purpose of giving effect to this section.
58R
Exempt benefits—safety awards
Where:
(a) one or more safety award benefits
are provided in, or in respect of, a year of tax in respect of the employment
of an employee of an employer; and
(b) the notional taxable value of that
safety award benefit, or the sum of the notional taxable values of those safety
award benefits, in relation to that year of tax, does not exceed $200;
the safety award benefit, or the safety award benefits, as
the case may be, are exempt benefits in relation to that year of tax.
58S
Exempt benefits—trainees engaged under Australian Traineeship System
Where:
(a) an employee is a trainee employed
under a training agreement as part of the scheme known as the Australian
Traineeship System;
(b) any of the following benefits is
provided in, or in respect of, a year of tax in respect of that employment of
the employee:
(i) an expense payment
benefit where the recipients expenditure is in respect of accommodation, or
food or drink, for the employee;
(ii) a housing benefit
where the housing right is in respect of accommodation for the employee;
(iii) a board benefit in
respect of a meal for the employee;
(iv) a property benefit
where the recipients property consists of food or drink for the employee;
(v) a residual benefit
where the recipients benefit consists of the subsistence of a lease or licence
in respect of a unit of accommodation for the accommodation of the employee;
(c) in a case where the benefit
relates to food or drink—the food or drink is not provided at a party,
reception or other social function; and
(d) either of the following conditions
are satisfied:
(i) the benefit is
provided pursuant to the provisions of an industrial instrument relating to the
employment of the employee;
(ii) it is customary for
employers in the industry in which the employee is employed to provide benefits
of the same kind as the benefit provided to the recipient and to provide such
benefits in similar circumstances to those that applied in relation to the
provision of the benefit to the recipient;
the benefit is an exempt benefit in relation to the year
of tax.
58T
Exempt benefits—live‑in domestic workers employed by religious
institutions or by religious practitioners
Where, during a particular period:
(a) the employer of an employee is:
(i) a religious
institution; or
(ii) a religious
practitioner;
(b) the duties of the employment of
the employee consist of, or consist principally of, rendering domestic services
or personal services, or both, for:
(i) one or more religious
practitioners who reside in one or more units of accommodation located on a
particular parcel of land; and
(ii) any relatives of that
religious practitioner, or of those religious practitioners, who reside in the
unit of accommodation with the religious practitioner concerned;
(c) the employee resides in a unit of
accommodation located on the same parcel of land; and
(d) the fact that the employee resides
in the unit of accommodation is directly related to the rendering, in the
course of the performance of the duties of the employment of the employee, of
those domestic services or of those personal services;
any benefit arising from the provision, during that
period, of:
(e) that accommodation to the employee
or to the employee and a spouse or child of the employee who resides in that
unit of accommodation with the employee;
(f) residential fuel in connection
with that accommodation for use by the employee or by the employee and a spouse
or child of the employee;
(g) meals provided on the parcel of
land to the employee or to a spouse or child of the employee who resides in
that unit of accommodation with the employee; or
(h) food or drink (other than meals)
for consumption, during that period, by the employee or by a spouse or child of
the employee who resides in that unit of accommodation with the employee;
is an exempt benefit.
58U
Exempt benefits—live‑in help for elderly and disadvantaged persons
Where, during a particular period:
(a) the employer of an employee is a
natural person;
(b) the duties of the employment of
the employee consist of, or consist principally of:
(i) caring for one or more
elderly persons and any child or children of that elderly person, or those
elderly persons, who reside with the elderly person concerned; or
(ii) caring for one or more
disadvantaged persons and any child or children of that disadvantaged person,
or those disadvantaged persons, who reside with the disadvantaged person
concerned;
(c) in the performance of those
duties, the employee resides in the same unit of accommodation as the person or
persons being cared for; and
(d) the fact that the employee resides
in that unit of accommodation is directly related to the provision, in the
course of the performance of the duties of the employment of the employee, of
care to the elderly person or elderly persons or to the disadvantaged person or
disadvantaged persons;
any benefit arising from the provision, during that
period, of:
(e) that accommodation to the employee
or to the employee and a spouse or child of the employee who resides in that
unit of accommodation with the employee;
(f) residential fuel in connection
with that accommodation for use by the employee or by the employee and a spouse
or child of the employee;
(g) meals provided in that unit of
accommodation to the employee or to a spouse or child of the employee who
resides in that unit of accommodation with the employee; or
(h) food or drink (other than meals)
for consumption, during that period, by the employee or by a spouse or child of
the employee who resides in that unit of accommodation with the employee;
is an exempt benefit.
58V
Exempt benefits—food and drink for non‑live‑in domestic employees
Where:
(a) the employer of an employee is:
(i) a natural person; or
(ii) a religious
institution;
(b) if the employer is a natural
person—the duties of the employment of the employee consist of, or consist
principally of, rendering domestic services for the employer or one or more
relatives of the employer at a place of residence of the employer;
(c) if the employer is a religious
institution—the duties of the employment of the employee consist of, or consist
principally of, rendering domestic services for one or more religious
practitioners or one or more relatives of religious practitioners at a place of
residence of the religious practitioner concerned; and
(d) the employee is not provided with
residential accommodation in respect of that employment;
any benefit arising from the provision of food or drink
consumed by the employee at that place of residence at or about the time the
employee was engaged in the performance of the duties of that employment is an
exempt benefit.
Note: Section 960‑255 of the Income
Tax Assessment Act 1997 may be relevant to determining who a person’s
relatives are for the purposes of paragraphs (b) and (c).
58W
Exempt benefits—deposits under the Small Superannuation Accounts Act
1995
When section applies
(1) This section applies if:
(a) a benefit is provided in respect
of the employment of an employee; and
(b) the benefit consists of the making
of a deposit, or purported deposit, under the Small Superannuation Accounts
Act 1995.
Exempt benefit
(2) The benefit is an exempt benefit.
Definition
(3) In this section:
deposit has the same meaning as in the Small
Superannuation Accounts Act 1995.
58X
Exempt benefits—provision of certain work related items
(1) Any of the following benefits provided by
an employer to an employee of the employer in respect of the employee’s
employment is an exempt benefit:
(a) an expense payment benefit where
the recipients expenditure is in respect of an eligible work related item;
(b) a property benefit where the
recipients property is an eligible work related item;
(c) a residual benefit where the
recipients benefit consists of the making available of an eligible work related
item.
(2) Subject to subsection (3), each of
the following is an eligible work related item if it is primarily
for use in the employee’s employment:
(a) a portable electronic device;
(b) an item of computer software;
(c) an item of protective clothing;
(d) a briefcase;
(e) a tool of trade.
(3) An item (the later item)
listed in subsection (2) is not an eligible work related item
if, earlier in the FBT year, an expense payment benefit or a property benefit
of the employee has arisen in relation to another item that has substantially
identical functions to the later item.
(4) However, the rule in subsection (3)
does not apply if the later item is a replacement for the other item.
Example: The later item would be a replacement for the
other item if the other item were lost or destroyed, or needed replacing
because of developments in technology.
58Y
Exempt benefits—membership fees and subscriptions
(1) Either of the following benefits provided
by an employer to an employee of the employer in respect of the employee’s
employment is an exempt benefit:
(a) an expense payment benefit where
the recipients expenditure is in respect of an eligible membership or
subscription;
(b) a property benefit where the
recipients property is an eligible membership or subscription.
(2) Each of the following is an eligible
membership or subscription:
(a) a subscription to a trade or
professional journal;
(b) an entitlement to use a corporate
credit card;
(c) an entitlement to use an airport
lounge membership.
58Z
Exempt benefits—taxi travel
(1) Any benefit arising from taxi travel by
an employee is an exempt benefit if the travel is a single taxi trip beginning
or ending at the employee’s place of work.
(2) Any benefit arising from taxi travel by
an employee is an exempt benefit if the travel:
(a) is as a result of sickness of, or
injury to, the employee; and
(b) is the whole or a part of the
journey directly between any of the following:
(i) the employee’s place
of work; or
(ii) the employee’s place
of residence; or
(iii) any other place that
it is necessary, or appropriate, for the employee to go as a result of the
sickness or injury.
58ZB
Exempt benefits—approved student exchange programs
(1) Where:
(a) a
benefit is provided in, or in respect of, a year of tax in respect of the
employment of an employee of an employer; and
(b) the benefit is in respect of
participation in an approved student exchange program by the employee or an
associate of the employee; and
(c) the employer or an associate of
the employer did not select, or take part in the selection of, the employee or
associate as a participant in the program;
the benefit is an exempt benefit in relation to the year
of tax.
(2) An approved student exchange
program is a student exchange program run by a body that is registered
as a student exchange body with the relevant State or Territory body in
accordance with the National Guidelines for Student Exchange that are published
by the National Co‑ordinating Committee for International Secondary
Student Exchange.
58ZC
Exempt benefits—remote area housing benefits
Remote area housing benefit to be exempt
(1) A housing benefit that is a remote area
housing benefit is an exempt benefit.
What constitutes remote area housing benefit
(2) A housing benefit in relation to an
employer for a year of tax and for a unit of accommodation, being a benefit
provided to an employee of the employer in respect of the employee’s
employment, is a remote area housing benefit if:
(a) during the whole of the tenancy
period, the unit of accommodation was located in a State or internal Territory
and was not at a location in, or adjacent to, an eligible urban area; and
(b) during the whole of the tenancy
period, the recipient was a current employee of the employer and the usual
place of employment of the recipient was not at a location in, or adjacent to,
an eligible urban area; and
(d) it would be concluded that it was
necessary for the employer, during the year of tax, to provide, or to arrange
for the provision of, residential accommodation for employees of the employer
because:
(i) the nature of the
employer’s business was such that employees of the employer were liable to be
frequently required to change their places of residence; or
(ii) there was not, at or
near the place or places at which the employees of the employer were employed,
sufficient suitable residential accommodation for those employees (other than
residential accommodation provided by or on behalf of the employer); or
(iii) it is customary for
employers in the industry in which the recipient was employed during the
tenancy period to provide residential accommodation for their employees free of
charge or for a rent or other consideration that is less than the market value
of the right to occupy or use the accommodation concerned; and
(e) the recipients overall housing
right was not granted to the recipient under:
(i) a non‑arm’s
length arrangement; or
(ii) an arrangement that
was entered into by any of the parties to the arrangement for the purpose, or
for purposes that included the purpose, of enabling the employer to obtain the
benefit of the application of this section.
Discretion to treat accommodation or place of
employment as being remote
(3) For the purposes of subsection (2):
(a) if a unit of accommodation:
(i) is at a location in,
or adjacent to, an eligible urban area; and
(ii) is adjacent to, or in
close proximity to, another unit of accommodation that is occupied or used and
is not at a location in, or adjacent to, an eligible urban area;
the Commissioner may, if the
Commissioner considers that it is appropriate to do so having regard to all the
circumstances, treat the first‑mentioned unit of accommodation as not
being at a location in, or adjacent to, an eligible urban area; and
(b) if the usual place of employment
of a person:
(i) is at a location in,
or adjacent to, an eligible urban area; and
(ii) is adjacent to, or in
close proximity to, another location at which people are employed, being
another location that is not in, or adjacent to, an eligible urban area;
the Commissioner may, if the
Commissioner considers that it is appropriate to do so having regard to all the
circumstances, treat that place of employment of the first‑mentioned
person as not being at a location in, or adjacent to, an eligible urban area.
58ZD
Exempt benefits—meals on working days
If:
(a) an employer is carrying on a
business of primary production for the purposes of the Income Tax Assessment
Act 1997; and
(b) the business is carried on at a
location in a State or internal Territory that is not in, or adjacent to, an
eligible urban area; and
(c) a benefit consisting of a meal
that is ready for consumption is provided on a working day to a person; and
(d) the benefit is not, or does not
include, the provision of meal entertainment as defined in section 37AD;
and
(e) the benefit is:
(i) a board benefit; or
(ii) a property benefit; or
(iii) an expense payment
benefit; or
(iv) a residual benefit; and
(f) the person to whom the benefit is
provided is:
(i) an employee of the
employer, being an employee who is employed in the business and is primarily so
employed at a location referred to in paragraph (b); or
(ii) if the benefit is a
board benefit—an associate of an employee referred to in subparagraph (i);
and
(g) the benefit is provided in respect
of the employment of an employee referred to in subparagraph (f)(i);
the benefit is an exempt benefit.
Division 14—Reduction of taxable value of miscellaneous fringe benefits
59
Reduction of taxable value—remote area residential fuel
(1) If:
(a) residential fuel is for use:
(i) in connection with the
recipients unit of accommodation; and
(ii) during the subsistence
of the recipients overall housing right;
in relation to a remote area
housing benefit, in relation to an employer in relation to a year of tax; and
(b) any of the following conditions
are satisfied:
(i) the recipients
expenditure in relation to an expense payment fringe benefit in relation to the
employer in relation to the year of tax or a subsequent year of tax is in
respect of the supply of that residential fuel;
(ii) the recipients
property in relation to a property fringe benefit in relation to the employer
in relation to the year of tax is that residential fuel;
(iii) the recipients benefit
in relation to a residual fringe benefit in relation to the employer in
relation to the year of tax is the benefit of the consumption of that
residential fuel;
the amount that, apart from this subsection and section 62,
would be the taxable value of the fringe benefit referred to in paragraph (b)
in relation to the year of tax is reduced by 50%.
(2) Where:
(a) any of the following conditions
are satisfied:
(i) the recipients
expenditure in relation to an expense payment fringe benefit in relation to an
employer in relation to an employee in relation to a year of tax is in respect
of the supply of residential fuel;
(ii) the recipients
property in relation to a property fringe benefit in relation to an employer in
relation to an employee in relation to a year of tax is residential fuel;
(iii) the recipients benefit
in relation to a residual fringe benefit in relation to an employer in relation
to an employee in relation to a year of tax is the benefit of the consumption
of residential fuel;
(b) the residential fuel is for use in
connection with a dwelling during a period in the year of tax or, in a case to
which subparagraph (a)(i) applies, a preceding year of tax, when the
recipient of the fringe benefit occupied or used the dwelling as his or her
usual place of residence and was under an obligation to repay the whole or a
part of a remote area housing loan connected with the dwelling; and
(c) the fringe benefit was not
provided under:
(i) a non‑arm’s
length arrangement; or
(ii) an arrangement that
was entered into by any of the parties to the arrangement for the purpose, or
for purposes that included the purpose, of enabling the employer to obtain the
benefit of the application of this section;
the amount that, but for this subsection and section 62,
would be the taxable value of the fringe benefit in relation to the year of tax
shall be reduced by 50%.
(3) Where:
(a) any of the following conditions
are satisfied:
(i) the recipients
expenditure in relation to an expense payment fringe benefit in relation to an
employer in relation to an employee in relation to a year of tax is in respect
of the supply of residential fuel;
(ii) the recipients
property in relation to a property fringe benefit in relation to an employer in
relation to an employee in relation to a year of tax is residential fuel;
(iii) the recipients benefit
in relation to a residual fringe benefit in relation to an employer in relation
to an employee in relation to a year of tax is the benefit of the consumption
of residential fuel;
(b) the residential fuel is for use in
connection with a unit of accommodation during a period in the year of tax or,
in a case to which subparagraph (a)(i) applies, in a preceding year of
tax, during which:
(i) the recipient of the
fringe benefit occupied or used the unit of accommodation as his or her usual
place of residence; and
(ii) remote area housing
rent connected with the unit of accommodation accrued; and
(c) the fringe benefit was not provided
under:
(i) a non‑arm’s
length arrangement; or
(ii) an arrangement that
was entered into by any of the parties to the arrangement for the purpose, or
for purposes that included the purpose, of enabling the employer to obtain the
benefit of the application of this section;
the amount that, but for this subsection and section 62,
would be the taxable value of the fringe benefit in relation to the year of tax
shall be reduced by 50%.
60
Reduction of taxable value—remote area housing
(1) Where:
(a) the recipient of a loan fringe
benefit in relation to an employer in relation to a year of tax is an employee
of the employer;
(b) the loan is a remote area housing
loan connected with a dwelling; and
(c) the recipient occupied or used the
dwelling as his or her usual place of residence during a period in the year of
tax (in this section referred to as the occupation period) during
which the recipient was under an obligation to repay the whole or a part of the
loan;
the amount that, but for this subsection, would be the
taxable value of the fringe benefit in relation to the year of tax shall be
reduced by 50% of so much of that amount as relates to the occupation period.
(2) Where:
(a) the recipient of an expense
payment fringe benefit in relation to an employer in relation to a year of tax
is an employee of the employer;
(b) the recipients expenditure is in
respect of interest in respect of a remote area housing loan connected with a
dwelling;
(c) the recipient occupied or used the
dwelling as his or her usual place of residence during a period (in this
section referred to as the occupation period) during which the
interest accrued; and
(d) the fringe benefit was not
provided under:
(i) a non‑arm’s
length arrangement; or
(ii) an arrangement that
was entered into by any of the parties to the arrangement for the purpose, or
for purposes that included the purpose, of enabling the employer to obtain the
benefit of the application of this section;
the amount that, but for this subsection, would be the
taxable value of the fringe benefit in relation to the year of tax shall be
reduced by 50% of so much of that amount as relates to the occupation period.
(2A) Where:
(a) the recipient of an expense
payment fringe benefit in relation to an employer in relation to a year of tax
is an employee of the employer;
(b) the recipients expenditure is in
respect of remote area housing rent connected with a unit of accommodation;
(c) the recipient occupied or used the
unit of accommodation as his or her usual place of residence during a period
(in this subsection called the occupation period) during which
the rent accrued; and
(d) the fringe benefit was not
provided under:
(i) a non‑arm’s
length arrangement; or
(ii) an arrangement that
was entered into by any of the parties to the arrangement for the purpose, or
for purposes that included the purpose, of enabling the employer to obtain the
benefit of the application of this section;
the amount that, but for this subsection, would be the
taxable value of the fringe benefit in relation to the year of tax shall be
reduced by 50% of so much of the recipients expenditure as relates to the
occupation period.
(3) Where:
(a) the
recipient of a property fringe benefit in relation to an employer in relation
to a year of tax is an employee of the employer; and
(b) the
recipients property is remote area residential property;
the amount that, but for this subsection, would be the
taxable value of the fringe benefit in relation to the year of tax shall be
reduced by 50%.
(4) Where:
(a) the recipient of an expense
payment fringe benefit in relation to an employer in relation to a year of tax
is an employee of the employer; and
(b) the recipients expenditure is in
respect of remote area residential property;
the amount that, but for this subsection, would be the
taxable value of the fringe benefit in relation to the year of tax shall be
reduced by 50%.
(5) Where:
(a) the recipient of a property fringe
benefit in relation to an employer in relation to a year of tax is an employee
of the employer; and
(b) the recipients property is a
remote area residential property option fee;
the amount that, but for this subsection, would be the
taxable value of the fringe benefit in relation to the year of tax shall be
reduced by 50%.
(6) Where:
(a) the recipient of a property fringe
benefit in relation to an employer in relation to a year of tax is an employee
of the employer; and
(b) the recipients property is remote
area residential property repurchase consideration;
the amount that, but for this subsection, would be the
taxable value of the fringe benefit in relation to the year of tax shall be
reduced by 50%.
(7) Where:
(a) subsection (6) applies to a
property fringe benefit; and
(b) the amount paid by the provider of
the fringe benefit by way of consideration for the purchase of the estate or
interest concerned exceeds both:
(i) the market value of
the estate or interest at the time of the purchase; and
(ii) the guideline price of
the estate or interest at the time of the purchase;
a reference in subsection (6) to the taxable value of
the fringe benefit is a reference to so much of the taxable value as is
attributable to the amount of the guideline price.
60AA
Guideline price for repurchase of remote area residential property
(1) In this section:
index number, in relation to a quarter, means
the All Groups Consumer Price Index number, being the weighted average of the 8
capital cities, published by the Australian Statistician in respect of that
quarter.
(2) Subject to subsection (3), if at any
time, whether before or after the commencement of this section, the Australian
Statistician has published or publishes an index number in respect of a quarter
in substitution for an index number previously published by the Australian
Statistician in respect of that quarter, the publication of the later index
number shall be disregarded for the purposes of this section.
(3) If at any time, whether before or after
the commencement of this section, the Australian Statistician has changed or
changes the reference base for the Consumer Price Index, then, for the purposes
of the application of this section after the change took place or takes place,
regard shall be had only to index numbers published in terms of the new
reference base.
(4) A reference in subsection 60(7) to the
guideline price of an estate or interest in land is a reference to:
(a) if the factor ascertained in
accordance with subsections (5) and (6) in relation to the market value of
the estate or interest as at the time the estate or interest was acquired by
the employee is greater than 1—the market value as at that time multiplied by
that factor; or
(b) in any other case—the market value
as at that time.
(5) The factor to be ascertained for the
purposes of subsection (4) in relation to the market value of the estate
or interest in land as at the time of the acquisition of the estate or interest
by the employee is the number (calculated to 3 decimal places) ascertained by
dividing the index number in respect of the quarter of the year in which the
employee sold the estate or interest to the provider by the index number in
respect of the quarter of the year in which the estate or interest was acquired
by the employee.
(6) Where the factor ascertained in
accordance with subsection (5) would, if it were calculated to 4 decimal
places, end with a number greater than 4, that factor shall be taken to be the
factor calculated to 3 decimal places in accordance with that subsection and
increased by 0.001.
60A
Reduction of taxable value—remote area holiday transport fringe benefits
subject to ceiling
(1) Where one or more remote area holiday
transport fringe benefits in relation to an employer in relation to a year of
tax relate to a particular employee of the employer and to a particular holiday
for a particular family member, the amount (in this subsection called the gross
taxable value) that, but for this subsection and section 62, would
be:
(a) so much of the taxable value of
that fringe benefit as is attributable to transport, meals or accommodation in
relation to the holiday for the family member; or
(b) so much of the sum of the taxable
values of those fringe benefits as is attributable to transport, meals or
accommodation in relation to the holiday for the family member;
as the case requires, in relation to that year of tax,
shall be reduced by:
(c) 50% of the gross taxable value; or
(d) 50% of the benchmark travel amount
in relation to that fringe benefit, or in relation to those fringe benefits, in
relation to the holiday for the family member;
whichever is the less.
(2) Subsection (1) does not apply in
relation to a remote area holiday transport fringe benefit unless:
(a) subsection 143(3) applies to the
fringe benefit; and
(b) if the fringe benefit is an
expense payment fringe benefit:
(i) in the case of an
expense payment fringe benefit where:
(A) the
expense payment fringe benefit is constituted by the reimbursement of the
recipient, in whole or in part, in respect of an amount of a Division 28
car expense incurred by the recipient in relation to a car owned by, or leased
to, the recipient; and
(B) the
reimbursement is calculated by reference to the distance travelled by the car;
the recipient gives to
the employer, before the declaration date, a declaration, in a form approved by
the Commissioner, in respect of the recipients expenditure; or
(ii) in the case of an
expense payment fringe benefit where subparagraph (i) does not apply:
(A) documentary
evidence of the recipients expenditure is obtained by the recipient and that documentary
evidence, or a copy, is given to the employer before the declaration date; or
(B) the
recipient gives to the employer, before the declaration date, a declaration, in
a form approved by the Commissioner, in respect of the recipients expenditure.
(3) Where subsection (1) applies, in
relation to 2 or more years of tax, in relation to 2 or more fringe benefits
relating to a particular holiday for a particular family member, subsection (1)
has effect, in relation to each of those years of tax, as if the reference in paragraph (1)(d)
to the benchmark travel amount in relation to that fringe benefit, or those
fringe benefits, in relation to the holiday for the family member were a
reference to the amount calculated in accordance with the formula:
where:
BTA is the amount that, but for this
subsection, would be the benchmark travel amount in relation to that fringe
benefit, or in relation to those fringe benefits, in relation to the holiday
for the family member;
TV is the amount that, but for this section
and section 62, would be:
(a) so much of the taxable value, in
relation to the year of tax concerned, of that fringe benefit as is
attributable to transport, meals or accommodation in relation to the holiday
for the family member; or
(b) so much of the sum of the taxable
values, in relation to the year of tax concerned, of those fringe benefits as
is attributable to transport, meals or accommodation in relation to the holiday
for the family member; and
TTV is the amount that, but for this section
and section 62, would be so much of the sum of the taxable values, in
relation to all of those years of tax, of all of those fringe benefits as is
attributable to transport, meals or accommodation in relation to the holiday
for the family member.
(4) Where:
(a) subparagraph (2)(b)(i)
applies to an expense payment fringe benefit; and
(b) the amount of the reimbursement
concerned exceeds the reimbursement (in this subsection called the
statutory reimbursement) that would have been paid if it had been
calculated on the basis of the sum of the following rates:
(i) the basic car rate;
(ii) where 2 or more family
members travelled in the car when it provided the transport by virtue of which
the expense payment fringe benefit is a remote area holiday transport fringe
benefit—the supplementary car rate;
a reference in subsection (1) or (3) of this section
to the taxable value of the fringe benefit is a reference to so much of the
taxable value as is attributable to the amount of the statutory reimbursement.
(5) Where:
(a) a
remote area holiday transport fringe benefit in relation to an employee
consists of the provision of an allowance to the spouse or a child of the
employee; and
(b) the whole or a part of the
allowance has been expended by the recipient in obtaining the transport, meals
or accommodation in respect of which the allowance was paid;
this section applies in relation to the fringe benefit as
follows:
(c) the fringe benefit shall be
treated as if it were an expense payment fringe benefit;
(d) the amount expended as mentioned
in paragraph (b) shall be treated as if it were the recipients
expenditure;
(e) so much of the allowance as does
not exceed the recipients expenditure shall be treated as if it were a
reimbursement of the recipients expenditure.
61
Reduction of taxable value—remote area holiday transport fringe benefits not
subject to ceiling
(1A) This section does not apply in relation to
a fringe benefit in respect of remote area holiday transport if subsection
143(3) applies in relation to the fringe benefit.
(1) Where:
(a) the recipients expenditure in
relation to an expense payment fringe benefit in relation to a year of tax is
in respect of remote area holiday transport;
(c) in a case where:
(i) the expense payment
fringe benefit is constituted by the reimbursement of the recipient, in whole
or in part, in respect of an amount of a Division 28 car expense incurred
by the recipient in relation to a car owned by, or leased to, the recipient;
and
(ii) the reimbursement is
calculated by reference to the distance travelled by the car;
the recipient gives to the
employer, before the declaration date, a declaration, in a form approved by the
Commissioner, in respect of the recipients expenditure; and
(d) if paragraph (c)
does not apply:
(i) documentary
evidence of the recipients expenditure is obtained by the recipient and that
documentary evidence, or a copy, is given to the employer before the
declaration date; or
(ii) the recipient gives to
the employer, before the declaration date, a declaration, in a form approved by
the Commissioner, in respect of the recipients expenditure;
the amount that, but for this subsection, would be the
taxable value of the fringe benefit in relation to the year of tax shall be
reduced by:
(e) where paragraph (c) does not
apply—50%; and
(f) where paragraph (c)
applies—50% of so much of the amount of the reimbursement as does not exceed
the reimbursement that would have been paid if it had been calculated on the
basis of the sum of the following rates:
(i) the basic car rate;
(ii) where 2 or more family
members travelled in the car when it provided the transport by virtue of which
the recipients expenditure is in respect of remote area holiday transport—the
supplementary car rate.
(1AA) Where the recipients property in relation to
a property fringe benefit in relation to a year of tax is in respect of remote
area holiday transport, the amount that, but for this subsection and section 62,
would be the taxable value of the fringe benefit in relation to the year of tax
shall be reduced by 50%.
(2) Where the recipients benefit in relation
to a residual fringe benefit in relation to a year of tax is in respect of
remote area holiday transport, the amount that, but for this subsection and
section 62, would be the taxable value of that fringe benefit in relation
to the year of tax shall be reduced by 50%.
(3) Where:
(a) a remote area holiday transport
fringe benefit in relation to an employee consists of the provision of an
allowance to the spouse or a child of the employee; and
(b) the whole or a part of the
allowance has been expended by the recipient in obtaining the transport, meals
or accommodation in respect of which the allowance was paid;
this section applies in relation to the fringe benefit as
follows:
(c) the fringe benefit shall be
treated as if it were an expense payment fringe benefit;
(d) the amount expended as mentioned
in paragraph (b) shall be treated as if it were the recipients
expenditure;
(e) so much of the allowance as does
not exceed the recipients expenditure shall be treated as if it were a
reimbursement of the recipients expenditure.
61A
Reduction of taxable value—overseas employment holiday transport
(1) Where one or more fringe benefits, being
fringe benefits in respect of overseas employment holiday transport, in
relation to an employer in relation to a year of tax relate to a particular
employee of the employer, the amount (in this subsection called the gross
taxable value) that, but for this subsection and section 62, would
be:
(a) so much of the taxable value of
that fringe benefit as is attributable to transport, meals or accommodation for
a particular family member; or
(b) so much of the sum of the taxable
values of those fringe benefits as is attributable to transport, meals or
accommodation for a particular family member;
as the case requires, in relation to that year of tax,
shall be reduced by:
(c) 50% of the gross taxable value; or
(d) 50% of the benchmark travel amount
in relation to that fringe benefit in relation to the family member or 50% of
the greatest benchmark travel amount in relation to those fringe benefits in
relation to the family member, as the case requires;
whichever is the less.
(2) Subsection (1) does not apply in
relation to a fringe benefit in respect of overseas employment holiday
transport, being an expense payment fringe benefit, unless:
(a) in the case of an expense payment
fringe benefit where:
(i) the expense payment
fringe benefit is constituted by the reimbursement of the recipient, in whole
or in part, in respect of an amount of a Division 28 car expense incurred
by the recipient in relation to a car owned by, or leased to, the recipient;
and
(ii) the reimbursement is
calculated by reference to the distance travelled by the car;
the recipient gives to the
employer, before the declaration date, a declaration, in a form approved by the
Commissioner, purporting to set out:
(iii) particulars of the
car; and
(iv) the number of whole
kilometres travelled by the car in providing transport by virtue of which the
recipients expenditure is in respect of overseas employment holiday transport;
or
(b) in the case of an expense payment
fringe benefit where paragraph (a) does not apply—documentary evidence of
the recipients expenditure is obtained by the recipient and that documentary
evidence, or a copy, is given to the employer before the declaration date.
(3) Where:
(a) subsection (1) applies in
relation to one or more fringe benefits (in this subsection called the overseas
holiday transport fringe benefits) in relation to an employer in
relation to a year of tax, being fringe benefits that relate to a particular
employee of the employer;
(b) one or more of the overseas
holiday transport fringe benefits are home country fringe benefits in relation
to a particular holiday or holidays for a particular family member;
(c) if the home country fringe
benefit, or home country fringe benefits, referred to in paragraph (b)
relate to only one holiday for the family member—the home country holiday
amount in relation to the holiday in relation to the family member exceeds the
benchmark travel amount, or the greatest benchmark travel amount, as the case
requires, that, apart from this subsection, would be applicable under paragraph (1)(d)
in relation to the overseas holiday transport fringe benefits in relation to
the family member; and
(d) if the home country fringe
benefit, or home country fringe benefits, referred to in paragraph (b)
relate to 2 or more holidays for the family member—the greatest of the home
country holiday amounts in relation to the holidays in relation to the family
member exceeds the benchmark travel amount, or the greatest benchmark travel
amount, as the case requires, that, apart from this subsection, would be
applicable under paragraph (1)(d) in relation to the overseas holiday
transport fringe benefits in relation to the family member;
the benchmark travel amount, or the greatest benchmark
travel amount, as the case requires, that, apart from this subsection, would be
applicable under paragraph (1)(d) in relation to the overseas holiday
transport fringe benefits in relation to the family member shall be increased
by the amount of the excess referred to in whichever of paragraph (c) or
(d) of this subsection is applicable.
(4) For the purposes of subsection (3),
where the whole or a part (which whole or part is in this subsection called the
attributable portion) of the amount that, but for subsection (1)
and section 62, would be the taxable value, or of the sum of the taxable
values, in relation to the year of tax, of one or more home country fringe
benefits in relation to a particular holiday for a particular family member is
attributable to transport, meals or accommodation in relation to the holiday
for the family member, the home country holiday amount, in relation to the
holiday, in relation to the family member, is an amount equal to the
attributable portion.
(5) Where:
(a) paragraph (2)(a) applies to
an expense payment fringe benefit; and
(b) the amount of the reimbursement
concerned exceeds the reimbursement (in this subsection called the
statutory reimbursement) that would have been paid if it had been
calculated on the basis of the sum of the following rates:
(i) the basic car rate;
(ii) where 2 or more family
members travelled in the car when it provided the transport by virtue of which
the expense payment fringe benefit is in respect of overseas employment holiday
transport—the supplementary car rate;
a reference in subsection (1) or (4) of this section
to the taxable value of the fringe benefit is a reference to so much of the
taxable value as is attributable to the amount of the statutory reimbursement.
61B
Reduction of taxable value of certain expense payment fringe benefits in
respect of relocation transport
Where:
(a) an expense payment fringe benefit
in respect of relocation transport is provided in a year of tax to an employee
of an employer, or to an associate of the employee, in respect of the
employment of the employee;
(b) the fringe benefit is constituted
by the reimbursement of the recipient, in whole or in part, in respect of an
amount of a Division 28 car expense incurred by the recipient in relation
to a car owned by, or leased to, the recipient, being a reimbursement
calculated by reference to the distance travelled by the car; and
(c) the recipient gives to the
employer, before the declaration date, a declaration, in a form approved by the
Commissioner, purporting to set out:
(i) particulars of the
car; and
(ii) the number of whole
kilometres travelled by the car in providing transport by virtue of which the
benefit is in respect of relocation transport;
the amount that, but for this section, would be the
taxable value of the fringe benefit in relation to the year of tax shall be
reduced by so much of the amount of the reimbursement as does not exceed the
reimbursement that would have been paid if it had been calculated on the basis
of the sum of the following rates:
(d) the basic car rate;
(e) where 2 or more family members
travelled in the car when it provided the transport by virtue of which the
benefit is in respect of relocation transport—the supplementary car rate.
61C
Reduction of taxable value—temporary accommodation relating to relocation
(1) Where:
(a) any of the following fringe
benefits is provided in, or in respect of, a year of tax in respect of the
employment of an employee of an employer:
(i) an expense payment
fringe benefit where the recipients expenditure is in respect of:
(A) a lease
or licence in respect of a unit of accommodation occupied or used for the
temporary accommodation of family members; or
(B) a lease
or licence in respect of goods primarily for domestic use by family members,
being domestic use in connection with a unit of accommodation occupied or used
for the temporary accommodation of family members;
(ii) a housing fringe
benefit where the housing right is in respect of a unit of accommodation
occupied or used for the temporary accommodation of family members;
(iii) a residual fringe
benefit where the recipients benefit:
(A) is
constituted by the subsistence of a lease or licence in respect of a unit of
accommodation occupied or used for the temporary accommodation of family
members; or
(B) is
constituted by the subsistence of a lease or licence in respect of goods
primarily for domestic use by family members, being domestic use in connection
with a unit of accommodation occupied or used for the temporary accommodation
of family members;
(b) the temporary accommodation is
required solely because the employee is required to change his or her usual
place of residence in order to perform the duties of that employment;
(c) if the unit of accommodation is
located at or near the employee’s former usual place of residence—the temporary
accommodation was required because the unit of accommodation that was the
employee’s former usual place of residence became unavailable, or unsuitable,
for residential use by family members due to removal, storage or other
arrangements relating to the change in the usual place of residence of the
employee;
(d) if the unit of accommodation is
located at or near the employee’s new place of employment—the employee, or an
associate of the employee, either before, on, or as soon as reasonably
practicable after, the day (in this section called the relocation day)
on which the employee commenced to perform the duties of that employment at the
employee’s new place of employment, commenced sustained reasonable efforts to
acquire, or to acquire the right to occupy or use, a unit of accommodation intended
by the employee or associate, as the case may be, to provide a long‑term
place of residence for the employee; and
(e) the fringe benefit is not provided
under a non‑arm’s length arrangement;
the following provisions have effect.
(2) Where:
(a) paragraph (1)(c) applies; and
(b) a percentage (in this subsection
called the attributable percentage) of the taxable value of the
fringe benefit in relation to the year of tax is attributable to the
subsistence of the lease, licence or housing right referred to in paragraph (1)(a)
during the whole or a part of the period of 21 days that ended on the day on
which the employee commenced to perform the duties of that employment at the
employee’s new place of employment;
the amount that, but for this subsection and section 62,
would be the taxable value of the fringe benefit in relation to the year of tax
shall be reduced by the attributable percentage.
(3) Where:
(a) paragraph (1)(d) applies;
(b) any of the following subparagraphs
applies:
(ii) the employee, not
later than 4 months after the relocation day, pursuant to a contract entered
into by the employee or an associate of the employee, commences or commenced to
occupy or use a unit of accommodation intended by the employee or associate, as
the case may be, to provide a long‑term place of residence for the
employee;
(iii) the employee gives to
the employer, before the declaration date, a declaration in a form approved by
the Commissioner, in respect of the application of this section in relation to
the employee; and
(c) a percentage (in this subsection
called the attributable percentage) of the taxable value of the
fringe benefit in relation to the year of tax is attributable to the
subsistence of the lease, licence or housing right referred to in paragraph (1)(a)
during the whole or a part of the period commencing 7 days before the
relocation day and ending on the earlier or earliest of whichever of the
following days is applicable:
(i) if, during the initial
accommodation search period, a contract is or was entered into by the employee
or an associate of the employee for the acquisition of, or of the right to
occupy or use, a unit of accommodation intended by the employee or associate to
provide a long‑term place of residence for the employee—the day on which
the employee could reasonably be or have been expected to commence, or to have
commenced, to occupy or use that unit of accommodation pursuant to that
contract;
(ii) if the initial
accommodation search period ends or ended before any contract of a kind
referred to in subparagraph (i) of this paragraph is or was entered into
by the employee or an associate—the day on which that period ends or ended;
(iii) if:
(A) the unit
of accommodation that was the employee’s former usual place of residence was a dwelling
in which the employee, or an associate of the employee, held a relevant
proprietary interest;
(B) within 6
months after the relocation day, a contract for the sale of that relevant
proprietary interest is or was entered into; and
(C) the
efforts referred to in paragraph (1)(d), and the efforts of that kind that
continue or continued to be made during the initial accommodation search period
are, or were, efforts to acquire a relevant proprietary interest in a unit of
accommodation, being a dwelling;
the day occurring 12
months after the relocation day;
(iv) except in a case where subparagraph (iii)
applies—the day occurring 6 months after the relocation day;
the amount that, but for this subsection and section 62,
would be the taxable value of the fringe benefit in relation to the year of tax
shall be reduced by the attributable percentage.
(4) A reference in this section to the
acquisition of a unit of accommodation includes a reference to the acquisition
of a relevant proprietary interest in a unit of accommodation, being a
dwelling.
(5) In this section:
initial accommodation search period, in
relation to a case to which paragraph (1)(d) applies, means the period
commencing on the commencement, or the first commencement, as the case
requires, of the efforts referred to in that paragraph and ending when efforts
of that kind first cease or ceased to be made.
relevant proprietary interest, in relation to
a unit of accommodation, being a dwelling, means:
(a) in any case—a prescribed interest
in land on which a building constituting, or containing, the dwelling is
located;
(b) in any case—a prescribed interest
in a stratum unit in relation to the dwelling; or
(c) if the dwelling is a flat or home
unit—a proprietary right in respect of the dwelling.
61D
Reduction of taxable value of temporary accommodation meal fringe benefits
(1) Where:
(a) either of the following fringe
benefits (in this section called a temporary accommodation meal fringe
benefit) is provided in a year of tax to an employee of an employer, or
to an associate of the employee, in respect of the employment of the employee:
(i) an expense payment
fringe benefit where the recipients expenditure is in respect of a meal;
(ii) a property fringe
benefit where the recipients property is a meal; and
(b) the meal was for consumption by a
family member at a time when the family member was accommodated in a hotel,
motel, hostel or guest‑house;
(c) any of the following fringe
benefits is provided in, or in respect of, the year of tax in respect of that
employment:
(i) an expense payment
benefit where the recipients expenditure is in respect of that accommodation;
(ii) a housing benefit
where the housing right is in respect of that accommodation;
(iii) a residual benefit
where the recipients benefit is constituted by the subsistence of a lease or
licence in respect of that accommodation;
(d) both of the following conditions
are satisfied:
(i) under section 61C,
the taxable value of the fringe benefit referred to in paragraph (c) in
relation to the year of tax is reduced by the extent to which that taxable
value is attributable to the subsistence of a lease or licence, or a housing
right, in respect of the accommodation during a particular period in the year
of tax;
(ii) the meal was for consumption
by a family member at a time during that period; and
(e) the amount that, but for this
section and section 62 and the recipients contribution, would be the
taxable value of the temporary accommodation meal fringe benefit exceeds:
(i) in a case where the
recipient had attained the age of 12 years before the beginning of the year of
tax—$2.00; or
(ii) in any other
case—$1.00;
the amount that, but for this section and section 62
and the recipients contribution, would be the taxable value of that temporary
accommodation meal fringe benefit shall be reduced by the amount of the excess
referred to in paragraph (e).
(2) For the purposes of the application of
this section to an in‑house property expense payment fringe benefit, a
reference in this section to the recipients contribution in relation to the
fringe benefit is a reference to the amount ascertained under paragraph
22A(1)(b).
61E
Reduction of taxable value of certain expense payment fringe benefits in
respect of employment interviews or selection tests
Where:
(a) an expense payment fringe benefit
in respect of an employment interview or selection test is provided in a year
of tax to an employee of an employer in respect of the employment of the
employee;
(b) the fringe benefit is constituted
by the reimbursement of the recipient, in whole or in part, in respect of an
amount of a Division 28 car expense incurred by the recipient in relation
to a car owned by, or leased to, the recipient, being a reimbursement
calculated by reference to the distance travelled by the car; and
(c) the recipient gives to the
employer, before the declaration date, a declaration, in a form approved by the
Commissioner, purporting to set out:
(i) particulars of the
car; and
(ii) the number of whole
kilometres travelled by the car in providing transport by virtue of which the
benefit is in respect of an employment interview or selection test;
the amount that, but for this section, would be the
taxable value of the fringe benefit in relation to the year of tax shall be
reduced by so much of the amount of the reimbursement as does not exceed the
reimbursement that would have been paid if it had been calculated on the basis
of the basic car rate.
61F
Reduction of taxable value of certain expense payment fringe benefits
associated with work‑related medical examinations, work‑related
medical screenings, work‑related preventative health care, work‑related
counselling or migrant language training
Where:
(a) an expense payment fringe benefit
associated with:
(i) a work‑related
medical examination of an employee of an employer;
(ii) work‑related
medical screening of an employee of an employer;
(iii) work‑related
preventative health care of an employee of an employer;
(iv) work‑related
counselling of an employee of an employer or of an associate of an employee of
an employer; or
(v) migrant language
training of an employee of an employer or of an associate of an employee of an
employer;
is provided in a year of tax to
the employee, or to an associate of the employee, in respect of the employment
of the employee;
(b) the fringe benefit is constituted
by the reimbursement of the recipient, in whole or in part, in respect of an
amount of a Division 28 car expense incurred by the recipient in relation
to a car owned by, or leased to, the recipient, being a reimbursement
calculated by reference to the distance travelled by the car; and
(c) the recipient gives to the
employer, before the declaration date, a declaration, in a form approved by the
Commissioner, purporting to set out:
(i) particulars of the
car; and
(ii) the number of whole
kilometres travelled by the car in providing transport by virtue of which the
benefit is associated with:
(A) a work‑related
medical examination of the employee;
(B) work‑related
medical screening of the employee;
(C) work‑related
preventative health care of the employee;
(D) work‑related
counselling of the employee or of an associate of the employee; or
(E) migrant
language training of the employee or of an associate of the employee;
the amount that, but for this section, would be the
taxable value of the fringe benefit in relation to the year of tax shall be
reduced by so much of the amount of the reimbursement as does not exceed the
reimbursement that would have been paid if it had been calculated on the basis
of the sum of the following rates:
(d) the basic car rate;
(e) where:
(i) the benefit is
associated with work‑related counselling of the employee or of an
associate of the employee or with migrant language training of the employee or
of an associate of the employee; and
(ii) 2 or more family
members travelled in the car when it provided the transport by virtue of which
the benefit is associated with work‑related counselling of the employee
or of an associate of the employee or with migrant language training of the
employee or of an associate of the employee;
the supplementary car rate.
61G
Reduction of taxable value of fringe benefits if certain deductions relating to
payments to associates are not allowed
If:
(a) a fringe benefit is provided in
the year of tax in respect of the employment of a current employee; and
(b) the person providing the benefit
cannot deduct an amount under the Income Tax Assessment Act 1997 for
providing the benefit because of section 85‑15, 85‑20 or 86‑60
of that Act;
the amount that, but for this section, would be the
taxable value of the fringe benefit in relation to the year of tax is reduced
by the amount mentioned in paragraph (b).
Note: Sections 85‑15, 85‑20 and 86‑60
of the Income Tax Assessment Act 1997 limit the extent to which a person
can deduct payments to associates that relate to personal services income.
62
Reduction of aggregate taxable value of certain fringe benefits
(1) Where one or more eligible fringe
benefits in relation to an employer in relation to a year of tax relate to a
particular employee of the employer, the taxable value of that fringe benefit,
or the sum of the taxable values of those fringe benefits, as the case may be,
in relation to that year shall be reduced by:
(a) if the taxable value or the sum of
the taxable values does not exceed $1,000—an amount equal to the taxable value
or the sum of the taxable values; or
(b) in any other case—$1,000.
(2) In this section, eligible fringe
benefit means:
(a) an in‑house fringe benefit;
or
(b) an airline transport fringe
benefit.
63
Reduction of taxable value of living‑away‑from‑home food
fringe benefits
(1) Where:
(a) a living‑away‑from‑home
food fringe benefit, or 2 or more living‑away‑from‑home food
fringe benefits, in relation to an employer in relation to a year of tax
relates or relate to a particular employee;
(b) the fringe benefit or fringe
benefits are equivalent to the food component of a living‑away‑from‑home
allowance fringe benefit in respect of a particular period in the year of tax;
(c) that food component exceeds the
sum of the statutory food amounts in respect of eligible family members in
respect of that period; and
(d) the employee gives to the
employer, before the declaration date, a declaration, in a form approved by the
Commissioner, purporting to set out particulars of:
(i) the employee’s usual
place of residence during that period; and
(ii) the place at which the
employee actually resided during that period;
the following provisions apply:
(e) if there is only one living‑away‑from‑home
food fringe benefit—the amount that, but for this section and section 62,
and the recipients contribution, would be the taxable value of that fringe
benefit, shall be reduced by the amount of the excess referred to in paragraph (c);
(f) if there are 2 or more living‑away‑from‑home
food fringe benefits—the amounts that, but for this section and section 62,
and the recipients contribution, would be the taxable values of those fringe
benefits shall be reduced by amounts proportionate to those taxable values and
equal in total to the amount of the excess referred to in paragraph (c).
(2) For the purposes of the application of
this section to an in‑house property expense payment fringe benefit, a
reference in this section to the recipients contribution in relation to the
fringe benefit is a reference to the amount ascertained under paragraph
22A(1)(b).
63A
Reduction of taxable value in respect of entertainment component of certain
fringe benefits
Taxable value reduced by entertainment percentage
(1) If:
(a) the recipient of an expense
payment fringe benefit in relation to an employer in relation to a year of tax
is an employee of the employer; and
(b) a percentage of the recipients
expenditure is in respect of the provision of entertainment other than to the
recipient or an associate of the recipient;
the amount that, apart from this subsection, would be the
taxable value of the expense payment fringe benefit in relation to the year of
tax is reduced by that percentage.
Avoidance of double reduction
(2) If the taxable value of the expense
payment fringe benefit has been reduced under Division 5 by reason of a
particular matter or thing, the taxable value of the fringe benefit is not
reduced under this section in respect of the same matter or thing.
65A
Reduction of taxable value—education of children of overseas employees
Where:
(a) any of the following fringe
benefits in relation to a year of tax is provided in respect of the employment
of an employee:
(i) a car fringe benefit
where the application or availability of the car is in respect of the full‑time
education of a child of the employee, not being a child who had attained the
age of 25 years before the day on which the benefit was provided;
(ii) an expense payment
fringe benefit where the recipients expenditure is in respect of the full‑time
education of a child of the employee, not being a child who had attained the
age of 25 years before the day on which the benefit was provided;
(iii) a property fringe
benefit where the recipients property is required solely for the purposes of
the full‑time education of a child of the employee, not being a child who
had attained the age of 25 years before the provision time;
(iv) a residual fringe
benefit where the recipients benefit consists of, or is required solely for the
purposes of, the full‑time education of a child of the employee, not
being a child who had attained the age of 25 years before the comparison time;
(b) the full‑time education is:
(i) at an educational
institution; or
(ii) by a tutor;
(c) the whole or any part of the full‑time
education is undertaken by the child when the employee is an overseas employee;
(d) either of the following conditions
is satisfied:
(i) the benefit is
provided pursuant to the provisions of an industrial instrument relating to the
employment of the employee;
(ii) it is customary for
employers in the industry in which the employee is employed to provide benefits
of the same kind as the benefit provided to the recipient and to provide such
benefits in similar circumstances to those that applied in relation to the
provision of the benefit to the recipient;
(e) in the case of an expense payment
fringe benefit—documentary evidence of the recipients expenditure is obtained
by the recipient and that documentary evidence, or a copy, is given to the
employer of the employee before the declaration date; and
(f) a percentage (in this section
called the attributable percentage) of the taxable value, in
relation to the year of tax, of the fringe benefit is attributable to the full‑time
education of the child in the period commencing on whichever of the following
days is applicable:
(i) if:
(A) the full‑time
education is at an educational institution;
(B) the
overseas posting period is a period of not less than 28 days; and
(C) the
overseas posting period commenced during an academic period of the educational
institution;
the day on which that
academic period commenced; or
(ii) in any other case—the
day on which the overseas posting period commenced;
and ending on whichever of the following days is
applicable:
(iii) if:
(A) the full‑time
education is at an educational institution;
(B) the
overseas posting period is a period of not less than 28 days; and
(C) the
overseas posting period ended during an academic period of the educational
institution;
the day on which that
academic period ended;
(iv) in any other case—the
day on which the overseas posting period ended;
the amount that, but for this section and section 62,
would be the taxable value of that fringe benefit in relation to the year of
tax shall be reduced by the attributable percentage.
Division 14A—Amortisation of taxable value of fringe benefits relating to
remote area home ownership schemes
65CA
Amortisation of taxable value of fringe benefits relating to remote area home
ownership schemes
(1) Where:
(a) the recipient of any of the
following fringe benefits in relation to an employer in relation to a year of
tax (in this section called the benefit year of tax) is an
employee of the employer:
(i) a property fringe
benefit where the recipients property is remote area residential property;
(ii) a property fringe
benefit where the recipients property is a remote area residential property
option fee;
(iii) an expense payment
fringe benefit where the recipients expenditure is in respect of remote area
residential property;
(b) in the case of a property fringe
benefit where the recipients property is remote area residential property—at or
before the provision time, the employee entered into a recognised remote area
housing obligation restricting the disposal of the estate or interest
concerned;
(c) in the case of an expense payment
fringe benefit—at or before the time when the employee acquired the estate or
interest concerned, the employee entered into a recognised remote area housing
obligation restricting the disposal of the estate or interest concerned; and
(d) in all cases—the period (in this
section called the overall amortisation period) commencing at
whichever of the following times is applicable:
(i) if subparagraph (a)(i)
or (ii) applies—the provision time;
(ii) if subparagraph (a)(iii)
applies—the time when the recipients expenditure was incurred;
(which time is in this section
called the benefit time) and ending at the earliest of the
following later times:
(iii) the time when the
employee ceases or first ceases to be subject to the recognised remote area
housing obligation referred to in paragraph (b) or (c) of this subsection
or in paragraph 142(2A)(e), as the case requires;
(iv) the time when the
employee ceases or first ceases to be employed by the employer;
(v) the time when the
employee ceases or first ceases to occupy or use the dwelling concerned as his
or her usual place of residence;
(vi) the time of the death
of the employee;
(vii) the end of the period
of 7 years after the benefit time;
commences and ends in different
years of tax;
the fringe benefit is an amortised fringe benefit.
(2) The notional amortisation period in relation
to the amortised fringe benefit is the period commencing at the benefit time
and ending at the earlier of the following times:
(a) the end of the period specified in
the contract to which the recognised remote area housing obligation concerned
relates, being the period during which the employee is to be subject to that
obligation;
(b) the end of the period of 7 years
after the benefit time.
(3) If the overall amortisation period has
not come to an end before the end of a particular year of tax (in this
subsection called the current year of tax), the amortised amount,
in relation to the current year of tax, of the amortised fringe benefit is the
amount calculated in accordance with the formula:
where:
Taxable value is the taxable value, in
relation to the benefit year of tax, of the fringe benefit.
Current amortisation period is the whole
number of months (or part months) in the current year of tax that are included
in the notional amortisation period.
Notional amortisation period is the whole
number of months (or part months) that are included in the notional
amortisation period.
(4) If the overall amortisation period comes
to an end during a particular year of tax (in this subsection called the current
year of tax), the amortised amount, in relation to the current year of
tax, of the amortised fringe benefit is the amount calculated in accordance
with the formula:
where:
Taxable value is the taxable value, in
relation to the benefit year of tax, of the fringe benefit.
Previously amortised amounts is the sum of
the amortised amounts, in relation to each year of tax preceding the current
year of tax, of the fringe benefit.
(5) Where the recipients expenditure in
relation to an expense payment fringe benefit was incurred before 1 July 1986, paragraph (1)(d) applies in relation to the fringe benefit as if
the recipients expenditure had been incurred on 1 July 1986.
(6) Where the following paragraphs apply in
relation to a fringe benefit in relation to an employer in relation to a year
of tax:
(a) the fringe benefit would have been
an amortised fringe benefit if the reference in subsection 142(2D) to 5 years
were a reference to 7 years;
(b) the benefit time occurred before 31 August 1988;
the employer is eligible for extended amortisation
treatment.
(7) Where:
(a) an employer is eligible for
extended amortisation treatment; and
(b) a fringe benefit in relation to
the employer in relation to a year of tax would have been an amortised fringe
benefit if the reference in subsection 142(2D) to a contractual obligation were
a reference to a contractual obligation entered into before the end of the
period of 6 months after the commencement of this subsection;
the following provisions have effect:
(c) a reference in subsection (3)
or (4) of this section to the overall amortisation period in relation to the
fringe benefit is to be read as a reference to the period that would have been
the overall amortisation period in relation to the fringe benefit if the
reference in subparagraph (1)(d)(vii) of this section to 7 years were a
reference to 15 years;
(d) for the purpose of determining the
notional amortisation period in relation to the fringe benefit, the reference
in paragraph (2)(b) of this section to 7 years is to be read as a
reference to 15 years.
65CB Amendment
of assessments
Nothing in section 74 prevents the
amendment at any time of an assessment for the purposes of giving effect to
this Division.
Division 14B—Reducible fringe benefits relating to remote area home
repurchase schemes
65CC
Reducible fringe benefits relating to remote area home repurchase schemes
(1) Where:
(a) the recipient of a property fringe
benefit in relation to an employer in relation to a year of tax is an employee
of the employer;
(b) the recipients property is remote
area residential property repurchase consideration;
(c) the taxable value of the fringe
benefit in relation to the year of tax is nil; and
(d) the market value of the estate or
interest purchased by the provider of the fringe benefit exceeds the amount paid
by the provider by way of consideration for the purchase of the estate or
interest;
the fringe benefit is a reducible fringe benefit.
(2) The reduction amount, in relation to the
year of tax, of the reducible fringe benefit is 50% of the amount of the excess
referred to in paragraph (1)(d).
Division 15—Car substantiation rules for otherwise deductible provisions
65D
Car substantiation rules
The object of this Division is to set
out the substantiation rules that apply for the purposes of sections 19,
24, 44 and 52 in relation to cars held by recipients of fringe benefits.
65E No
compliance with substantiation rules in log book year of tax unless log book
records and odometer records are maintained
Where a car is held by the recipient of
a loan fringe benefit, expense payment fringe benefit, property fringe benefit
or residual fringe benefit in relation to an employer during a period (in this
section called the holding period) in a year of tax that is a log
book year of tax of the recipient in relation to the car, the substantiation
rules shall be taken to have been complied with in relation to the car in
relation to the holding period if, and only if:
(a) log book records and odometer
records have been maintained by or on behalf of the recipient for an applicable
log book period in relation to the car; and
(b) odometer records are maintained by
or on behalf of the provider for the holding period; and
(c) the employer specifies the
employer’s estimate of the number of business kilometres travelled by the car
during the holding period; and
(d) the employer specifies a
percentage as the business use percentage applicable to the car in relation to
the recipient for the holding period.
65F No
compliance with substantiation rules in non‑log book year of tax unless
log book records kept in previous log book year of tax
Where a car is held by the recipient of
a loan fringe benefit, an expense payment fringe benefit, a property fringe
benefit or a residual fringe benefit during a period (in this section called
the holding period) in a year of tax that is not a log book year
of tax of the recipient in relation to the car, the substantiation rules shall
be taken to be complied with in relation to the car if, and only if:
(a) odometer records are maintained by
or on behalf of the recipient in relation to the car for the holding period;
and
(b) the employer specifies the
employer’s estimate of the number of business kilometres travelled by the car
in the holding period; and
(c) the employer specifies a percentage
as the business use percentage applicable to the car in relation to the
recipient for the holding period.
Part IIIA—Rebates of tax
65J
Rebate for certain non‑profit employers etc.
[Rebatable employer]
(1) For the purposes of this section, an employer
is a rebatable employer for a year of tax if the employer is not a public
benevolent institution, is not a health promotion charity, and is covered by
any of the following paragraphs at any time during the year of tax:
(a) a religious institution;
(aa) a non‑profit scientific
institution that:
(i) is engaged solely in
research into the causes, prevention or cure of diseases in humans; and
(ii) is established by a
law of the Commonwealth, a State or a Territory; and
(iii) is not conducted by or
on behalf of the Commonwealth, a State or a Territory;
(b) a scientific or public educational
institution (other than an institution of the Commonwealth, a State or a
Territory);
(baa) a charitable institution (other
than an institution of the Commonwealth, a State or a Territory) that is
endorsed under subsection 123E(1);
(ba) a school (including a pre‑school
but not including a tertiary institution) that:
(i) although established
by or under a law of the Commonwealth, a State or a Territory, is not conducted
for or on behalf of the Commonwealth, a State or a Territory; and
(ii) is not conducted for
the purpose of profit or gain to the persons or body of persons conducting it;
(e) a trade union;
(f) an association of employers or
employees registered or recognised under the Fair Work (Registered
Organisations) Act 2009 or a law of the Commonwealth, a State or a
Territory relating to the settlement of industrial disputes;
(g) a non‑profit society, non‑profit
association, or non‑profit club, established for musical purposes, or for
the encouragement of music, art, science or literature;
(h) a non‑profit society, non‑profit
association, or non‑profit club, established for the encouragement or
promotion of a game or sport;
(i) a non‑profit society, non‑profit
association, or non‑profit club, established for the encouragement or
promotion of animal races;
(j) a non‑profit society, non‑profit
association, or non‑profit club, established for community service
purposes (not being political purposes or lobbying purposes);
(k) a non‑profit society, or non‑profit
association, established for the purpose of promoting the development of
aviation or tourism;
(ka) a non‑profit society, or non‑profit
association, established for the purpose of promoting the development of
Australian information and communications technology resources;
(l) a non‑profit society, or
non‑profit association, established for the purpose of promoting the
development of the agricultural, pastoral, horticultural, viticultural,
aquacultural, fishing, manufacturing or industrial resources of Australia.
(1A) Despite subsection (1), if the
employer is a charitable institution at any time during the year of tax, the
employer is not a rebatable employer for the year of tax unless the employer is
endorsed under subsection 123E(1) at that time.
[Entitlement to rebate]
(2) If an employer is a rebatable employer
for a year of tax earlier than the year of tax beginning on 1 April 2000, the employer is entitled to a rebate of tax in the employer’s assessment for the
year of tax equal to the amount worked out using the formula:
where:
Gross tax means the amount of tax
payable on the fringe benefits taxable amount of the employer of the year of
tax (assuming that this section had not been enacted).
Rebatable days in year means the number of
whole days in the year of tax when the employer was covered by any of paragraphs (1)(a)
to (l) (inclusive).
Total days in year means the number of days
in the year of tax.
Rebate for year of tax 2000‑2001 and later years
(2A) If an employer is a rebatable employer for
the year of tax beginning on 1 April 2000 or a later year of tax, the
employer is entitled to a rebate of tax in the employer’s assessment for the
year of tax concerned equal to the amount worked out using the formula:
where:
gross tax means the amount of tax payable on
the fringe benefits taxable amount of the employer of the year of tax (assuming
that this section had not been enacted).
rebatable days in year means the number of
whole days in the year of tax when the employer engaged in activities as an
employer covered by any of paragraphs (1)(a) to (l) (inclusive).
total days in year means the number of days
in the year of tax excluding the days on which the employer did not engage in
activities as an employer.
How to work out aggregate non‑rebatable amount
(2B) An employer’s aggregate non‑rebatable
amount for the year of tax is the amount worked out as follows.
Method
statement
Step 1. For
each employee, add:
(a) the
individual grossed‑up type 1 non‑rebatable amount (see subsection (2C))
in relation to the employer for the year of tax; and
(b) the
individual grossed‑up type 2 non‑rebatable amount (see subsection (2D))
in relation to the employer for the year of tax.
The result is the individual
grossed‑up non‑rebatable amount for the employee.
Step 2. Reduce the individual
grossed‑up non‑rebatable amount for each employee of the employer:
(a) to zero for
the year of tax beginning on 1 April 2000; and
(b) by $30,000,
but not below zero, for a later year of tax.
Note: Paragraph (a)
means the employer’s aggregate non‑rebatable amount for the year of tax
beginning on 1 April 2000 will be nil.
Step 3. Add up the results of
step 2 for all the employer’s employees.
Step 4. Multiply the sum from
step 3 by the FBT rate. The result is the employer’s aggregate non‑rebatable
amount for the year of tax.
Individual grossed‑up type 1 non‑rebatable
amount
(2C) For the purposes of step 1 in the method
statement in subsection (2B), the individual grossed‑up type 1
non‑rebatable amount of an employee in relation to the employer
for the year of tax is:
Individual grossed‑up type 2 non‑rebatable
amount
(2D) For the purposes of step 1 in the method
statement in subsection (2B), the individual grossed‑up type 2
non‑rebatable amount of an employee in relation to the employer
for the year of tax is:
Working out the type 1 individual base non‑rebatable
amount
(2E) An employee’s type 1 individual base
non‑rebatable amount in relation to the employer for the year of
tax is worked out by adding the amounts worked out under step 3 of the method
statement in subsection (2G) and step 3 of the method statement in subsection (2H).
Working out the type 2 individual base non‑rebatable
amount
(2F) An employee’s type 2 individual base
non‑rebatable amount in relation to the employer for the year of
tax is worked out by adding the amounts worked out under step 4 of the method
statement in subsection (2G) and step 4 of the method statement in subsection (2H).
Working out the subsection (2G) amounts
(2G) An employee’s subsection (2G) amounts
for the year of tax are worked out as follows.
Method
statement
Step 1. Work
out under section 5E for each of the employer’s employees the employee’s
individual fringe benefits amount (if any) for the year of tax in respect of
the employee’s employment by the employer.
Step 2. Identify the benefits
taken into account in step 1 that are GST‑creditable benefits (see
section 149A).
Step 3. So much of the amount
worked out under step 1 that relates to the benefits identified under step 2 is
the step 3 of subsection (2G) amount for the individual.
Step 4. The remainder of the
amount is the step 4 of subsection (2G) amount for the
individual.
Working out the subsection (2H) amounts
(2H) An employee’s subsection (2H) amounts
for the year of tax are worked out as follows.
Method statement
Step 1. Work out for each
employee his or her share (if any) of the taxable values of the excluded fringe
benefits for the year of tax in respect of the employee’s employment by the
employer, but disregarding benefits:
(a) that
constitute the provision of meal entertainment as defined in section 37AD
(whether or not the employer made an election under section 37AA); or
(b) that are car
parking fringe benefits; or
(c) whose
taxable values are wholly or partly attributable to entertainment facility
leasing expenses.
Step 2. Identify the benefits
taken into account in step 1 that are GST‑creditable benefits (see
section 149A).
Step 3. So much of the amount
worked out under step 1 that relates to the benefits identified under step 2 is
the step 3 of subsection (2H) amount for the individual.
Step 4. The remainder of the
amount is the step 4 of subsection (2H) amount for the
individual.
(3) For the purposes of this section, an
institution established by a law of the Commonwealth, a State or a Territory is
taken to be an institution of the Commonwealth, the State or the Territory, as
the case requires.
(5) For the purposes of this section, a
society, association or club is a non‑profit society, non‑profit
association or non‑profit club, as the case may be, if, and only if:
(a) the society, association or club
is carried on otherwise than for the purposes of profit or gain to its
individual members; and
(b) the society, association or club
is neither:
(i) an incorporated
company where all the stock or shares in the capital of the company is or are
beneficially owned by:
(A) the
Commonwealth, a State or a Territory; or
(B) an
authority or institution of the Commonwealth, a State or a Territory; nor
(ii) an incorporated
company where the company is limited by guarantee and the interests and rights
of the members in or in relation to the company are beneficially owned by:
(A) the
Commonwealth, a State or a Territory; or
(B) an
authority or institution of the Commonwealth, a State or a Territory.
Definitions
(6) In this section:
FBT rate means the rate of fringe benefits
tax for the year of tax.
GST rate means the rate of goods and services
tax payable under the A New Tax System (Goods and Services Tax) Act 1999
for the year of tax.
Part IV—Liability to tax
66
Liability to pay tax
(1) Subject to this Act, tax imposed in
respect of the fringe benefits taxable amount of an employer of a year of tax
is payable by the employer.
(2) A law, or a provision of a law, passed
before the commencement of this Act that purports to exempt a person from
liability to pay fringe benefits tax or to pay taxes that include that tax does
not exempt that person from liability to pay that tax.
(3) A law, or a provision of a law, passed
after the commencement of this Act that purports to exempt a person from
liability to pay taxes under the laws of the Commonwealth or to pay certain
taxes under those laws that include fringe benefits tax, other than a law or a
provision that expressly exempts a person from liability to pay that tax, shall
not be construed as exempting the person from liability to pay that tax.
67
Arrangements to avoid or reduce fringe benefits tax
(1) Where:
(a) an employer (in this subsection
referred to as the eligible employer) has obtained or, but for
this section, would obtain, a tax benefit in respect of a year of tax in
connection with an arrangement under which a benefit is or was provided to a
person, being an arrangement that was entered into, or commenced to be carried
out, on or after 19 September 1985; and
(b) it would be concluded that the
person, or one of the persons, who entered into or carried out the arrangement
or any part of the arrangement did so for the sole or dominant purpose of
enabling the eligible employer to obtain a tax benefit in connection with the
arrangement or of enabling the eligible employer and another employer or other
employers each to obtain a tax benefit in connection with the arrangement
(whether or not that person who entered into or carried out the arrangement or
any part of the arrangement is the eligible employer or is the other employer
or one of the other employers);
the Commissioner:
(c) may determine that the aggregate
fringe benefits amount (if any) of the eligible employer of the year of tax be
increased by the amount of the tax benefit; and
(d) may determine that appropriate
adjustments (if any) be made to the aggregate fringe benefits amount of the
eligible employer in respect of another year of tax or of another employer in
respect of any year of tax;
and any such determination has effect accordingly.
(2) A reference in this section to the
obtaining by an employer of a tax benefit in respect of a year of tax in
connection with an arrangement under which a benefit is provided to a person is
a reference to an amount not being included in the aggregate fringe benefits
amount of the employer of the year of tax in respect of that benefit where the
amount would have been included, or could reasonably be expected to have been
included, in that aggregate fringe benefits amount if the arrangement had not
been entered into or carried out.
(3) A reference in this section to the
obtaining by an employer of a tax benefit in respect of a year of tax in
connection with an arrangement under which a benefit is provided to a person
does not include a reference to an amount not being included in the aggregate
fringe benefits amount of the employer of the year of tax in respect of that
benefit, being an amount that would have been included, or could reasonably be
expected to have been included, in that aggregate fringe benefits amount if the
arrangement had not been entered into or carried out, where the non‑inclusion
of the amount in that aggregate fringe benefits amount is attributable to the
payment or provision by a person of consideration in respect of the provision
of the benefit.
(4) Where, at any time, an employer considers
that the Commissioner ought to make a determination under paragraph (1)(d)
in relation to the employer in relation to a year of tax, the employer may post
to or lodge with the Commissioner a request in writing for the making by the
Commissioner of a determination under that paragraph.
(5) The Commissioner shall consider the
request and serve on the employer a written notice of the Commissioner’s
decision on the request.
(6) If the employer is dissatisfied with the
Commissioner’s decision on the request, the employer may object against the
decision in the manner set out in Part IVC of the Taxation
Administration Act 1953.
(8) Nothing in section 74 prevents the
amendment of an assessment at any time before the end of 6 years after the
original assessment date if the amendment is for the purposes of giving effect
to subsection (1) of this section as it applies by virtue of paragraph (1)(c).
(9) Nothing in section 74 prevents the
amendment of an assessment at any time if the amendment is for the purpose of
giving effect to subsection (1) of this section as it applies by virtue of
paragraph (1)(d).
(10) In this section, a reference to an
employer, in relation to an arrangement, includes a reference to a person who
would be, or might reasonably be expected to be, an employer but for the
arrangement.
(11) A reference in this section to the
carrying out of an arrangement by a person shall be read as including a
reference to the carrying out of an arrangement by a person together with
another person or other persons.
(12) Nothing in the provisions of this Act
other than this section or in the International Tax Agreements Act 1953 or
in the Petroleum (Timor Sea Treaty) Act 2003 shall be
taken to limit the operation of this section.
Part V—Returns and assessments
Division 1—Returns
68
Annual returns
Where there is a fringe benefits taxable
amount of an employer of a year of tax, the employer shall, unless the employer
has furnished a return or returns under section 69 in relation to the
fringe benefits taxable amount of the year of tax, furnish to the Commissioner
a return not later than 21 May in the next year of tax or such later date
as the Commissioner allows.
69
Further returns
Where the Commissioner, by notice in
writing served on a person, requires the person, whether an employer or not, to
furnish to the Commissioner a return in relation to a year of tax, the person
shall furnish the return in the manner and within the time specified in the
notice, whether or not the person has furnished, or is or was required to
furnish, a return under section 68 or this section in respect of that year
of tax.
70
Keeping records of indirect tax transactions
A return under section 68 or 69
must:
(a) be in the approved form; and
(b) specify:
(i) the fringe benefits
taxable amount of the employer of the year of tax concerned; and
(ii) the amount of tax
payable on that amount.
70D
Tax agent to give taxpayer copy of notice of assessment
(1) Where a taxpayer has given the address of
a registered tax agent as the taxpayer’s address for service, the registered
tax agent must give the taxpayer the original of, or a copy of, any notice of
assessment in respect of that taxpayer that is delivered to that address.
Penalty: 30 penalty units.
(2) An offence under subsection (1) is
an offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
Division 2—Assessments
72
First return deemed to be an assessment
Where:
(a) at a particular time, a return
under this Act in relation to an employer in relation to a year of tax is
furnished; and
(b) before that time, no return has
been furnished, and no assessment has been made, in relation to the employer in
relation to the year of tax;
the following provisions have effect:
(c) the Commissioner shall be deemed
at that time to have made an assessment (in this section referred to as the deemed
assessment) of:
(i) the fringe benefits
taxable amount (including a nil amount) of the employer of the year of tax; and
(ii) the amount (including
a nil amount) of tax payable on that fringe benefits taxable amount;
being those respective amounts
as specified in the return referred to in paragraph (a);
(d) the return referred to in paragraph (a)
shall be deemed to be a notice of the deemed assessment and to be under the
hand of the Commissioner;
(e) the notice referred to in paragraph (d)
shall be deemed to have been served at that time on the person liable to pay
the tax.
73
Default assessments
Where:
(a) an employer has not furnished a
return in respect of a year of tax; and
(b) the Commissioner is of the opinion
that the employer is liable to pay tax in respect of that year;
the Commissioner may, whether during that year or after
the end of that year, make an assessment of:
(c) the fringe benefits taxable amount
of the employer of the year of tax; and
(d) the amount of tax payable on that
fringe benefits taxable amount.
74
Amendment of assessments
(1) The Commissioner may, at any time within
a period of 3 years after the original assessment date in relation to an
assessment, amend the assessment by making such alterations or additions to it
as the Commissioner thinks necessary.
(2) Subject to this section, the Commissioner
may, after the end of 3 years after the original assessment date in relation to
an assessment, amend the assessment by making such alterations or additions to
it as the Commissioner thinks necessary.
(3) Where:
(a) an employer does not make a full
and true disclosure of all the material facts necessary for an assessment of
the tax payable by the employer;
(b) the Commissioner makes an assessment;
and
(c) there is an avoidance of tax;
the Commissioner may:
(d) where the Commissioner is of the
opinion that the avoidance of tax is due to fraud or evasion—at any time; and
(e) in any other case—within 6 years
after the original assessment date in relation to the assessment;
amend the assessment by making such alterations or
additions to it as the Commissioner thinks necessary.
(4) No amendment effecting a reduction in the
liability of an employer under an assessment shall be made after the end of 3
years after the original assessment date.
(5) Where an assessment has been amended
under this section in any particular, the Commissioner may, within 3 years
after the date on which the amended assessment is made, make, in or in respect
of that particular, such further amendment of the assessment as, in the
Commissioner’s opinion, is necessary to effect such reduction in the liability
of the employer liable to pay tax under the assessment as is just.
(6) Where an
employer:
(a) applies, within 3 years after the
original assessment date in relation to an assessment, for an amendment of an
assessment; and
(b) supplies to the Commissioner
within that period all information needed by the Commissioner for the purposes
of determining the application made by the employer;
the Commissioner may amend the assessment, notwithstanding
that that period has expired.
(6A) An application for amendment must be in the
approved form.
(7) Nothing in this section prevents the
amendment of an assessment:
(a) in order to give effect to a
decision on a review or appeal; or
(b) by way of reduction in any
particular pursuant to an objection made under this Act or pending an appeal or
review.
(8) The Commissioner may, at any time, amend
an assessment of additional tax under Part VIII.
75
Refund of amounts overpaid
(1) Where, by reason of an amendment of an
assessment, a person’s liability to tax is reduced:
(a) the amount by which the tax is so
reduced shall be taken, for the purposes of section 93, never to have been
payable; and
(b) the Commissioner shall:
(i) refund the amount of
any tax overpaid; or
(ii) apply the amount of
any tax overpaid against any liability of the person to the Commonwealth and
refund any part of the amount that is not so applied.
(2) In subsection (1), unless the
contrary intention appears, tax includes additional tax under
section 93 or Part VIII.
76
Amended assessment to be an assessment
Except as otherwise provided, an amended
assessment is an assessment for all the purposes of this Act.
77
Notice of assessment
As soon as practicable after an
assessment is made, the Commissioner shall serve notice of the assessment in
writing on the person liable to pay the tax.
78
Validity of assessment
The validity of any assessment is not affected
by reason that any provision of this Act has not been complied with.
78A
Objections
An employer who is dissatisfied with an
assessment may object against it in the manner set out in Part IVC of the Taxation
Administration Act 1953.