Part VII—Collection and recovery of tax
Division 1—General
90
When tax payable
(1) Subject
to this Part, tax assessed in respect of a year of tax becomes due and payable,
or shall be deemed to have become due and payable, as the case requires, on 21 May
in the next year of tax.
(2) Subject to this Part, additional tax
under Part VIII is due and payable on the date specified in the notice of
assessment of the additional tax as the date on which the additional tax is due
and payable.
Note: For provisions about collection and recovery
of tax and additional tax, see Part 4‑15 in Schedule 1 to the Taxation
Administration Act 1953.
93
Unpaid tax
(1) If any of the tax, or the additional tax
under Part VIII, which a person is liable to pay remains unpaid after the
time by which the tax or the additional tax is due to be paid, the person is
liable to pay the general interest charge on the unpaid amount for each day in
the period that:
(a) started at the beginning of the
day by which the tax or the additional tax was due to be paid; and
(b) finishes at the end of the last
day on which, at the end of the day, any of the following remains unpaid:
(i) the tax or the
additional tax;
(ii) general interest
charge on any of the tax or the additional tax.
(2) The amount of the general interest charge
is taken to be additional tax payable under this section.
Note: The general interest charge is worked out
under Part IIA of the Taxation Administration Act 1953.
100
Person in receipt or control of money of non‑resident
(1) A person who has authority to receive,
control or dispose of money belonging to a non‑resident who is liable to
an amount of tax shall, when required by the Commissioner by notice in writing
served on the person, pay the amount of tax and, by force of this section, is,
when so required:
(a) authorised and required to retain
from time to time any money that comes to the person on behalf of the non‑resident
or so much of it as is sufficient to pay the amount of tax payable by the non‑resident;
(b) made personally liable for the
amount of tax after it becomes payable to the extent of any amount so retained,
or which should have been so retained, under paragraph (a); and
(c) indemnified for all payments that
the person makes pursuant to this section.
(2) For the purposes of subsection (1),
a person who is liable to pay money to a non‑resident shall be deemed to
be a person who has the control of money belonging to the non‑resident,
and all money due by the person to the non‑resident shall be deemed to be
money that comes to the person on behalf of the non‑resident.
(3) Where the Commonwealth, a State or
Territory, or an authority of the Commonwealth, a State or Territory has the
receipt, control or disposal of money belonging to a non‑resident, this
section (other than paragraph (1)(b)) applies to and in relation to the
Commonwealth, the State or the Territory, or the authority of the Commonwealth,
of the State or of the Territory, as the case may be, in the same manner as it
applies to and in relation to any other person.
(4) In this section, tax
includes additional tax under section 93 or Part VIII.
Division 2—Collection by instalments
Subdivision A—General
101
Interpretation
(1) In sections 93, 100 and 129, but not
in any other section of this Act, tax includes an instalment of
tax payable under this Division.
(2) In sections 100 and 129, but not in
any other section of this Act, tax includes additional tax
payable under subsection 112(4).
(3) The ascertainment of the notional tax
amount, or the amount of any instalment of tax, in accordance with this
Division shall not be deemed to be an assessment within the meaning of any of
the provisions of this Act.
102
Liability to pay instalments of tax
For the purpose of securing generally
the more expeditious collection of tax, an employer is liable to pay, in
accordance with this Division, 4 instalments of tax in respect of each year of
tax.
103
When instalment of tax payable
(1) Subject to this Division, the 4
instalments of tax payable in respect of a year of tax are due and payable as
follows:
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When instalments of tax are due and payable
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Item
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This instalment ...
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is due and payable on:
|
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1
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first instalment
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21 July in that year of tax
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2
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second instalment
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21 October in that year of tax
|
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3
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third instalment
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21 January in that year of tax
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4
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fourth instalment
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21 April in the next year of tax
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(2) Despite subsection (1), and subject
to this Division, if an employer is a deferred BAS payer on the day specified
as the day on which an instalment is due and payable under subsection (1),
that instalment is instead due and payable as specified in the following table:
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When instalments of tax are due and payable
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Item
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If subsection (2) applies to this instalment:
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the instalment is due and payable on:
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1
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first instalment
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28 July in that year of tax
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2
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second instalment
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28 October in that year of tax
|
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3
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third instalment
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28 February in that year of tax
|
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4
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fourth instalment
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28 April in the next year of tax
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Note: For provisions about collection and recovery
of instalments of fringe benefits tax, see Part 4‑15 in Schedule 1
to the Taxation Administration Act 1953.
104
Notice of the amount of an instalment
An employer must notify the
Commissioner, in the approved form, of the amount of an instalment on or before
the day on which the instalment is due and payable.
105
Credit for instalments payable
(1) An employer is entitled to a credit when
the Commissioner:
(a) makes an assessment of the tax
payable by the employer for a year of tax; or
(b) determines that no tax is payable.
Note: The employer’s first return for the year of
tax is treated as an assessment: see section 72.
(2) The credit is equal to:
• the total of each instalment (if
any) payable by the employer for the year of tax;
reduced by:
• the total of any credits the
employer has claimed under section 112A because of one or more instalments
of tax for the year of tax.
Note: An employer can claim a credit under section 112A
in some cases where the amount by reference to which an instalment is worked
out reduces during the year of tax.
(3) The making
of the assessment or determination, and the resulting credit entitlement, do
not affect the liability to pay an instalment.
Note: How the credit is applied is set out in
Division 3 of Part IIB of the Taxation Administration Act 1953.
Subdivision C—Working out the amount of instalments
109
Interpretation
In this Subdivision:
employer’s estimate, in relation to an
employer, in relation to an instalment of tax in relation to a year of tax,
means the amount shown in a statement by the employer under subsection 112(1)
in relation to the instalment as the employer’s estimate of the tax that will
be payable by the employer in respect of the year of tax.
estimated tax, in relation to an employer in
relation to a year of tax, means the amount determined, or last determined, as
the case requires, under subsection 112(2) or (3) as the estimated tax of the
employer in respect of the year of tax.
GIC period, in relation to an instalment in
relation to a year of tax, has the meaning given by the following table:
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GIC period
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Item
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For this instalment in that year of tax:
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GIC period is this period if this instalment is
due and payable under subsection 103(1):
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GIC period is this period if this instalment is
due and payable under subsection 103(2):
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1
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first instalment
|
the period starting at the beginning of 21 July, and
finishing at the end of 20 October, in the year of tax
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the period starting at the beginning of 28 July, and
finishing at the end of 27 October, in the year of tax
|
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2
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second instalment
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the period starting at the beginning of 21 October,
and finishing at the end of 20 January, in the year of tax
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the period starting at the beginning of 28 October,
and finishing at the end of 27 February, in the year of tax
|
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3
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third instalment
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the period starting at the beginning of 21 January in
the year of tax and finishing at the end of 20 April in the next year of
tax
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the period starting at the beginning of 28 February
in the year of tax and finishing at the end of 27 April in the next year
of tax
|
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4
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fourth instalment
|
the period starting at the beginning of 21 April, and
finishing at the end of 20 May, in the next year of tax
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the period starting at the beginning of 28 April, and
finishing at the end of 20 May, in the next year of tax
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relevant fraction, in relation to an
instalment, means:
(a) 0.25 for a first instalment; or
(b) 0.50 for a second instalment; or
(c) 0.75 for a third instalment; or
(d) 1.00 for a fourth instalment.
110
Notional tax amount
(1) An employer’s notional tax amount
for a year of tax (the current year) as at a particular time (the
test time) is worked out using the table, except as provided in subsections (3),
(4) and (5).
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Working out an employer’s notional tax amount
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Item
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In this case:
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The notional tax amount is:
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1
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No other item applies
|
the amount of the employer’s tax for the most recent year
of tax (the base year) for which the Commissioner has made an
assessment before the test time.
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2
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Before the test time, the Commissioner has determined that
no tax is payable by the employer for a year of tax, and there is no later
year of tax for which the Commissioner has made an assessment of the
employer’s tax before the test time
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nil
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3
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There is no year of tax for which the Commissioner has,
before the test time, made an assessment of the employer’s tax or determined
that no tax is payable by the employer
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nil
|
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4
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The notional tax amount would otherwise be worked out
under item 1 and:
(a) the rate of tax declared by the Parliament for the
current year is different from the rate declared for the base year; and
(b) the regulations provide for varying the notional tax
amount of employers for the current year
|
if the test time is before the prescribed day—the notional
tax amount worked out under item 1; or
if the test time is on and after the prescribed day—that
amount as varied in accordance with the regulations.
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Note: The employer’s first return for the year of
tax is treated as an assessment: see section 72.
(3) The Commissioner may determine that the
employer’s notional tax amount for the current year is such
amount as the Commissioner estimates will be the tax payable by the employer
for that year, if the Commissioner has reason to believe that that tax will
exceed:
(a) if the notional tax amount would
otherwise be worked out under item 1 or 4 of the table in subsection (1)—the
amount of the employer’s tax for the base year; or
(b) if the notional tax amount would
otherwise be worked out under item 2 or 3 of the table in subsection (1)—nil.
(4) Where the
Commissioner makes a determination under subsection (3):
(a) the Commissioner shall cause a
notice in writing to be served on the employer specifying:
(i) the notional tax
amount determined by the Commissioner; and
(ii) the date on which the
determination takes effect, being a date not less than 30 days after the date
of service of the notice; and
(b) subject to subsection (5),
the notional tax amount of the employer in respect of the year of tax is, on
and after the date specified in the notice, the amount determined by the
Commissioner.
(5) Where, in relation to an instalment of
tax in respect of a year of tax, being an instalment that becomes due and
payable after the end of a quarter, an employer has estimated pursuant to
subsection 112(1) the amount of tax that will be payable in respect of that
year of tax and has furnished to the Commissioner a statement in accordance
with that subsection, then, on and after the last day of the quarter and until
such time as there is a further application of this subsection in relation to a
subsequent instalment of tax payable by the employer, the notional tax amount
of the employer in respect of the year of tax is, or shall be deemed to have
been, as the case requires, an amount equal to the estimated tax.
111
Amount of instalment of tax
(1) The amount of an instalment of tax of an
employer for a year of tax that becomes due and payable after the end of a
quarter is the amount worked out using this formula, if the amount is positive:
Otherwise, the amount of the instalment is nil.
Note: If the notional tax amount is too small, the
instalment may not be payable: see subsection (2).
(1A) For the purposes of the formula in subsection (1):
notional tax amount means the employer’s
notional tax amount for the year of tax, as at the end of the last day of that
quarter.
previous credits means the total of any
credits the employer has claimed under section 112A because of one or more
instalments of tax for the same year of tax that became due and payable before
that day.
previous instalments means the total of any
instalments of tax for the same year of tax that became due and payable by the
employer before that day.
(2) An instalment of tax in respect of a year
of tax that would otherwise become due and payable by an employer after the end
of a quarter is not payable if:
(a) the instalment is calculated by
reference to a notional tax amount ascertained under subsection 110(1); and
(b) the notional tax amount by
reference to which the instalment was calculated is less than:
(i) if a determination of
an amount is in force under subsection (3) in respect of the year of
tax—that amount; or
(ii) in any other
case—$1,000; and
(c) unless that quarter is the first
quarter in the year of tax—because of one or more previous applications of this
subsection, the instalment that would otherwise have become due and payable by
the employer after the end of the previous quarter is not payable.
(3) The Commissioner may, by notice in
writing in the Gazette, determine an amount other than $1,000 as the
amount applicable for the purposes of subsection (2) in respect of a year
or years of tax specified in the determination.
112
Estimated tax
(1) An employer may, not later than the date
on which an instalment of tax in respect of a year of tax is due and payable or
within such further period as the Commissioner allows:
(a) make an estimate of the amount of
the tax (if any) that will be payable by the employer in respect of that year
of tax; and
(b) furnish to the Commissioner a
written statement, in the approved form, showing:
(i) the amount so
estimated; and
(ii) the basis on which the
estimate has been made;
unless the employer has previously furnished a statement
under this subsection in relation to the instalment of tax.
(2) Where an employer furnishes to the
Commissioner, in relation to an instalment of tax, a statement under subsection (1),
the estimated tax is, subject to subsection (3), an amount equal to the
employer’s estimate.
(3) Where, having regard to information in
returns furnished by the employer and any other information in the
Commissioner’s possession, the Commissioner has reason to believe that the
amount of tax that will be payable by the employer in respect of the year of
tax is greater than the employer’s estimate:
(a) the Commissioner may estimate the
amount that, in the Commissioner’s opinion, should have been the amount
estimated by the employer pursuant to subsection (1) in respect of that
year of tax; and
(b) the estimated tax is:
(i) an amount equal to the
amount of tax so estimated by the Commissioner; or
(ii) the amount that would
be the notional tax amount of the employer in respect of the year of tax if the
employer had not furnished a statement under subsection (1);
whichever is the less.
112A
Credit in certain cases where amount of instalment is nil
(1) If an amount worked out using the formula
in subsection 111(1) is negative, the employer is entitled to claim a credit
equal to that amount, expressed as a positive amount.
Note: This will happen if the notional tax amount
has reduced since the end of an earlier quarter because, for example:
·
the employer has made an estimate under section 112 of its
tax for the current year; or
·
an assessment has been made for a more recent year of tax before
the current year.
(2) A claim for a credit must be made in the
approved form after the end of the quarter.
Note: How the credit is applied is set out in
Division 3 of Part IIB of the Taxation Administration Act 1953.
112B
Liability to GIC on shortfall in quarterly instalment worked out on the basis
of estimated tax
(1) An employer is liable to pay the general
interest charge under this section if:
(a) in order to determine the amount
of an instalment of tax (the underpaid instalment) of the
employer for a year of tax, an amount (whether positive, negative or nil) (the actual
amount) was worked out using the formula in subsection 111(1); and
(b) because of subsection 110(5), the
notional tax amount used in working out the actual amount was an estimate by
the employer under subsection 112(1); and
(c) that notional tax amount is less
than 90% of the employer’s tax assessed for the year of tax; and
(d) that assessed tax has become due
and payable.
Note: Paragraph (1)(b) is not satisfied if the
notional tax amount used in working out the actual amount was estimated tax
worked out under subsection 112(3) because the Commissioner disagrees with the
employer’s estimate.
(2) The employer is liable to pay the charge,
for each day in the GIC period, on the amount (if any) by which the actual
amount is less than the amount (whether positive, negative or nil)
worked out using the formula:
(3) For the purposes of the formula in subsection (2):
minimum tax amount means the lesser of:
(a) the amount that, apart from
subsection 110(5), would have been the notional tax amount used in working out
the actual amount; and
(b) the employer’s tax assessed for
the year of tax.
previous credits means the total of any
credits the employer has claimed under section 112A because of one or more
instalments of tax for the same year of tax that became due and payable before
that day.
previous instalments means the total of any
instalments of tax for the same year of tax that became due and payable by the
employer before the day on which the underpaid instalment became due and
payable (or would have become due and payable if the actual amount had been
positive).
(4) The amount of the general interest charge
is taken to be additional tax payable under this section.
113
Notice of alteration of amount of instalment
Where, by reason of the operation of
subsection 112(3), the amount payable by an employer as an instalment of tax is
greater than the instalment that would have been payable if it had been
ascertained by reference to the employer’s estimate, the Commissioner shall
cause to be served on the employer a notice in writing specifying:
(a) the amount of the increase in the
instalment of tax that became payable by reason of subsection 112(3); and
(b) a date as the due date for payment
of that amount, being a date not less than 14 days after the date of service of
the notice;
and the amount of the increase in the instalment of tax so
specified is, notwithstanding section 103, due and payable on the date so
specified.
Part VIII—Penalty tax
113A
Part to stop applying
This Part does not apply to a return or
information relating to the year of tax starting on 1 April 2001 or a later year of tax.
Note: See instead Part 4‑25 in Schedule 1
to the Taxation Administration Act 1953.
114
Penalty for failure to furnish return
(1) Where an employer other than a government
body refuses or fails to furnish, when and as required under or pursuant to
this Act to do so, a return, or any information, relating to a year of tax,
being a return relevant to or information relevant to ascertaining the
employer’s liability under this Act, the employer is liable to pay, by way of
penalty, additional tax equal to double the amount of tax payable by the
employer in respect of the year of tax.
(2) Where, but for this subsection, an amount
of additional tax, being an amount less than $20, is payable by an employer
under this section in respect of an act or omission, then, by force of this
subsection, the amount of additional tax shall be taken to be $20.
115
Penalty for false or misleading statements
(1) Where:
(a) an employer other than a
government body:
(i) makes a statement to a
taxation officer, or to a person other than a taxation officer for a purpose in
connection with the operation of this Act, that is false or misleading in a
material particular; or
(ii) omits from a statement
made to a taxation officer, or to a person other than a taxation officer for a
purpose in connection with the operation of this Act, any matter or thing
without which the statement is misleading in a material particular; and
(b) the tax properly payable by the
employer exceeds the tax that would have been payable by the employer if it
were assessed on the basis that the statement were not false or misleading, as
the case may be;
the employer is liable to pay, by way of penalty,
additional tax equal to double the amount of the excess.
(2) Where, but for this subsection, an amount
of additional tax, being an amount less than $20, is payable by an employer
under this section in respect of an act or omission, then, by force of this
subsection, the amount of the additional tax shall be taken to be $20.
(3) A reference in subsection (1) to a
statement made to a taxation officer is a reference to a statement made to a
taxation officer orally, in writing, in a data processing device or in any
other form (including by way of electronic transmission) and, without limiting
the generality of the foregoing, includes a statement:
(a) made in an application,
certificate, notification, declaration, objection, return or other document
made, given or furnished, under or pursuant to this Act;
(b) made in answer to a question asked
of a person under or pursuant to this Act;
(c) made in any information furnished,
or purporting to be furnished, under or pursuant to this Act; or
(d) made in a document furnished to a
taxation officer otherwise than under or pursuant to this Act;
but does not include a statement made in a document
produced pursuant to paragraph 128(1)(c).
(4) A reference in subsection (1) to a
statement made to a person other than a taxation officer for a purpose in
connection with the operation of this Act is a reference to such a statement
made orally, in writing, in a data processing device or in any other form
(including by way of electronic transmission) and, without limiting the
generality of the foregoing, includes such a statement:
(a) made in an application,
certificate, declaration, notification or other document made, given or
furnished to the person;
(b) made in answer to a question asked
by the person; or
(c) made in any information furnished
to the person.
(5) In this
section:
data processing device means any article or
material from which information is capable of being reproduced with or without
the aid of any other article or device.
taxation officer means a person exercising
powers, or performing functions under, pursuant to or in relation to this Act.
(6) If a document is given on a data
processing device, or by way of electronic transmission, by a registered tax agent
on behalf of a taxpayer, then, for the purposes of this Part, each statement in
the document is taken to have been made by the taxpayer unless the taxpayer can
show that the taxpayer did not authorise the statement.
115A
Penalty tax for making unreasonable estimate of business kilometres
If:
(a) the number of kilometres specified
by an employer as the employer’s estimate of the number of business kilometres
travelled by a car during a period in an FBT year is not a reasonable estimate
of the number of business kilometres travelled in that period; and
(b) the tax that would be payable by
the employer if a reasonable estimate of the number of business kilometres was
substituted for the employer’s estimate exceeds the tax that would be payable
if the employer’s estimate was used;
then:
(c) the Commissioner may make a
reasonable estimate of the number of business kilometres; and
(d) the Commissioner’s estimate is to
be used in calculating the business use percentage applicable to the car for
the period; and
(e) the employer is liable to pay, by
way of penalty, additional tax equal to double the amount of the excess
referred to in paragraph (b).
115B
Penalty tax for making unreasonable estimate of income
If:
(a) under subsection 58GA(2), an
employer makes an estimate of an amount; and
(b) the amount of the estimate is less
than $10 million; and
(c) the estimate is not a reasonable
estimate;
then:
(d) the Commissioner may make a
reasonable estimate of that amount (taking into account the assumption in
paragraph 58GA(2)(e)); and
(e) if the amount of that reasonable
estimate is $10 million or more—the employer is liable to pay, by way of
penalty, additional tax equal to double the amount of the tax payable in
respect of the benefit.
116
Penalty tax where arrangement to avoid tax
Where:
(a) for the purpose of making an
assessment or arising out of the consideration of an objection, the
Commissioner has calculated the tax that is assessable to an employer in
respect of a year of tax;
(b) in calculating the tax assessable
to the employer, a determination or determinations made by the Commissioner
under subsection 67(1) was or were taken into account; and
(c) either of the following
subparagraphs applies:
(i) no tax would have been
assessable to the employer in respect of the year of tax if no determination
had been made under subsection 67(1) in relation to the employer in relation to
the year of tax;
(ii) the amount of tax (in
this section referred to as the amount of claimed tax) that
would, but for this section, have been assessable to the employer in respect of
the year of tax if no determination had been made under subsection 67(1) in
relation to the employer in respect of the year of tax is less than the amount
of tax referred to in paragraph (a);
the employer is liable to
pay, by way of penalty, additional tax equal to:
(d) in a case to which subparagraph (c)(i)
applies—double the amount of the tax referred to in paragraph (a); or
(e) in a case to which subparagraph (c)(ii)
applies—double the amount by which the amount of tax referred to in paragraph (a)
exceeds the amount of claimed tax.
117
Assessment of additional tax
(1) The Commissioner shall make an assessment
of the additional tax payable by an employer under a provision of this Part and
shall, as soon as practicable after the assessment is made, cause notice in
writing of the assessment to be served on the employer.
(2) Nothing in this Act shall be taken to
preclude notice of an assessment made in respect of an employer under subsection (1)
from being incorporated in notice of any other assessment made in respect of
the employer under this Act.
(3) The Commissioner may, in the
Commissioner’s discretion, remit the whole or any part of the additional tax
payable by an employer under a provision of this Part, but, for the purposes of
the application of subsection 33(1) of the Acts Interpretation Act 1901 to
the power of remission conferred by this subsection, nothing in this Act shall
be taken to preclude the exercise of the power at a time before an assessment
is made under subsection (1) of the additional tax.
Part IX—Tax agents
118
Interpretation
In this Part, registered tax agent
means a person or partnership who or which is registered as a tax agent under
Part VIIA of the Income Tax Assessment Act 1936.
Note: Section 251L of the Income Tax
Assessment Act 1936 prohibits a person from charging a fee for doing things
under this Act on behalf of someone else unless the person is a registered tax
agent or is excluded by that section.
120
Negligence of registered tax agents
(1) If, through the negligence of a
registered tax agent, an employer becomes liable to pay a fine or other penalty
or any additional tax, the registered tax agent is liable to pay to the
employer the amount of that fine, penalty or additional tax, and that amount
may be sued for and recovered by the employer as a debt in any court of
competent jurisdiction.
(2) Nothing in this section shall exonerate
the employer from his or her liability.
121
Preparation of returns etc. on behalf of registered tax agents
(1) A registered tax agent shall not allow
any person, not being his or her employee, a registered tax agent or, in the
case of a partnership which is registered as a tax agent, a member of that
partnership:
(a) to prepare on the registered tax
agent’s behalf, either directly or indirectly, a fringe benefits tax return or
objection; or
(b) to conduct on the registered tax
agent’s behalf, either directly or indirectly, any business relating to any
fringe benefits tax return or objection or fringe benefits tax matter.
Penalty: 10 penalty units.
(2) A partnership or company that is
registered as a tax agent shall not allow any person to do anything specified
in paragraph (1)(a) or (b).
Penalty: 10 penalty units.
(2A) Subsection (2) does not apply to the
extent that the person does the thing under the supervision and control of a
person who is a registered nominee of the partnership or company for the
purposes of Part VIIA of the Income Tax Assessment Act 1936.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2A), see subsection 13.3(3) of the Criminal
Code.
(2B) A natural person who is registered as a tax
agent must not allow any person to do anything specified in paragraph (1)(a)
or (b).
Penalty: 10 penalty units.
(2C) Subsection (2B) does not apply to the
extent that the person does the thing under the supervision and control of:
(a) the tax agent; or
(b) a person who is a registered
nominee of the tax agent for the purposes of Part VIIA of the Income
Tax Assessment Act 1936.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2C), see subsection 13.3(3) of the Criminal
Code.
(3) Nothing in this section shall be
construed as prohibiting the employment by a registered tax agent of a
solicitor or counsel to act in the course of his or her profession in the
preparation of any objection or in any litigation or proceedings before a
board, a court or the Tribunal, or in an advisory capacity either in connection
with the preparation of any fringe benefits tax return or the conduct of any
such business as is referred to in paragraph (1)(b).
122
Advertising etc. by persons other than registered tax agents
(1) Subject to this section, a person, not
being a registered tax agent, shall not, directly or indirectly, advertise in
any manner that fringe benefits tax returns will be prepared by the person or
that any other matter in connection with fringe benefits tax will be attended
to by the person.
Penalty: 10 penalty units.
(1A) An offence under subsection (1) is an
offence of strict liability.
Note: For strict liability, see
section 6.1 of the Criminal Code.
(2) Subsection (1) does not apply in
relation to advertising that relates to acts or things done or to be done by a
solicitor or counsel acting in the course of his or her profession:
(a) in the preparation of an
objection;
(b) in litigation or proceedings
before a board, the Tribunal or a court; or
(c) in an advisory capacity in
connection with the preparation of a fringe benefits tax return or objection or
with any fringe benefits tax matter.
Note: A defendant bears an evidential burden in
relation to the matters in subsection (2), see subsection 13.3(3) of the Criminal
Code.
Part X—Statutory evidentiary documents
123
Retention of statutory evidentiary documents
(1) For the purposes of Part III, where
an employer fails to retain, for the retention period, a statutory evidentiary
document given to or made by the employer, the statutory evidentiary document
shall be deemed never to have been given to or made by the employer.
(2) For the purposes of sections 10A and
10B, where an employer fails to retain, for the retention period, statutory
evidentiary documents, being log book records or odometer records maintained by
or on behalf of the employer, those documents shall be deemed never to have
been maintained.
(3) For the purposes of subparagraph
24(1)(c)(ia) or (i), where an employer fails to retain, for the retention
period, statutory evidentiary documents, being substitute documentary evidence
maintained by or on behalf of the employer, those documents shall be deemed
never to have been maintained.
(4) Where:
(a) a statutory evidentiary document
(in this subsection referred to as the original document) in
relation to an employer is lost or destroyed; and
(b) the employer has a document (the
substitute document) that:
(i) is a copy of the
original document; or
(ii) properly records all
of the matters as set out in the original document and was in existence when
the original document was lost or destroyed;
the substitute document shall be deemed, for the purposes
of this section, to be, and to have been at all times after the original
document was lost or destroyed, the original document.
(5) Where:
(a) a statutory evidentiary document
in relation to an employer is lost or destroyed; and
(b) the Commissioner is satisfied
that:
(i) the employer took all
reasonable precautions to prevent loss or destruction of the document; and
(iii) subsection (4)
does not apply in relation to the document; and
subsection (1), (2) or (3), as the case requires,
does not apply, and shall be deemed not to have applied, at any time after the
document was lost or destroyed.
(6) Where:
(a) a provision of this Act makes
provision for a person to give a statutory evidentiary document (in this
subsection referred to as the original document) to an employer;
(b) the original document is lost or
destroyed before it is given to the employer; and
(c) the Commissioner is satisfied
that:
(i) the person took all
reasonable precautions to prevent loss or destruction of the document; and
(iii) the person does not
have a document that:
(A) is a
copy of the original document; or
(B) properly
records all of the matters set out in the original document and was in
existence when the original document was lost or destroyed; and
that provision of this Act has effect as if the original
document had been given by the person to the employer and had been retained by
the employer for the retention period.
(7) Nothing in section 74 prevents the
amendment of an assessment for the purpose of giving effect to this section.
123A
When business use percentage and estimate of business kilometres must be
specified
If a provision requires a business use
percentage or an estimate of the number of business kilometres to be specified,
it must be specified in writing on or before the declaration date for the FBT
year.
123B
Substantiation requirements not to apply in special circumstances
(1) The substantiation rules do not apply in
relation to a benefit if the nature and quality of evidence that a person has
satisfies the Commissioner that the taxable value of the benefit is not greater
than the amount specified in the taxpayer’s return for the FBT year as the
taxable value of that benefit.
(3) The Commissioner may only make a decision
under subsection (1):
(a) in the course of reviewing on the
Commissioner’s own motion the affairs of the employer; or
(b) in considering an objection
against the assessment of the employer of the year of tax; or
(c) in considering whether to make an
amendment of the assessment of the employer of the year of tax in response to a
request made by the employer before the commencement of this section.
(4) This section does not apply to a
declaration made for the purposes of this Act.
(5) If:
(a) an employer makes an application
under subsection 82(1) or (2), as in force immediately before the commencement
of section 113 of the Taxation Laws Amendment Act (No. 3) 1991;
and
(b) the period mentioned in the
subsection concerned ended before the commencement of this section;
the following provisions have effect:
(c) the Commissioner, the Tribunal or
the Federal Court of Australia, as the case requires, when making a decision on
the application, must disregard subsection (1) of this section;
(d) if the Commissioner, the Tribunal
or the Federal Court of Australia, as the case requires, grants the
application:
(i) the employer’s
objection has no effect to the extent that it relates to grounds based on subsection (1)
of this section; and
(ii) the Tribunal or the
Federal Court of Australia, when making a decision under:
(A) paragraph
86A(a) of this Act, as in force immediately before the commencement of section 113
of the Taxation Laws Amendment Act (No. 3) 1991; or
(B) paragraph
14ZZK(a) or 14ZZO(a) of the Taxation Administration Act 1953, as the
case requires;
must disregard subsection (1)
of this section.
(6) This section applies to a benefit
provided before, at or after the commencement of this section.
Part XA—Endorsement of charitable institutions etc.
123C
Endorsement by Commissioner as public benevolent institution
Endorsement of an entity that is a public benevolent
institution
(1) The Commissioner must endorse an entity
as a public benevolent institution if:
(a) the entity is entitled to be
endorsed as a public benevolent institution (see subsection (2)); and
(b) the entity has applied for that
endorsement in accordance with Division 426 in Schedule 1 to the Taxation
Administration Act 1953.
(2) An entity is entitled to be endorsed as a
public benevolent institution if the entity:
(a) is a public benevolent
institution; and
(b) has an ABN; and
(c) is not an employer in relation to
which step 2 of the method statement in subsection 5B(1E) applies.
Endorsement of an entity for the operation of a public
benevolent institution
(3) The Commissioner must endorse an entity
for the operation of a public benevolent institution if:
(a) the entity is entitled to be
endorsed for the operation of a public benevolent institution (see subsection (4));
and
(b) the entity has applied for that
endorsement in accordance with Division 426 in Schedule 1 to the Taxation
Administration Act 1953.
(4) An entity is entitled to be endorsed for
the operation of a public benevolent institution if:
(a) the entity:
(i) includes the public
benevolent institution; and
(ii) has an ABN; and
(b) the public benevolent institution
is an employer; and
(c) the public benevolent institution
is not an employer in relation to which step 2 of the method statement in
subsection 5B(1E) applies.
(5) If an entity is endorsed under subsection (3)
for the operation of a public benevolent institution, the public benevolent
institution is taken to be endorsed under this subsection as a public
benevolent institution.
123D
Endorsement by Commissioner as health promotion charity
(1) The Commissioner must endorse an entity
as a health promotion charity if:
(a) the entity is entitled to be
endorsed as a health promotion charity (see subsection (2)); and
(b) the entity has applied for that
endorsement in accordance with Division 426 in Schedule 1 to the Taxation
Administration Act 1953.
(2) An entity is entitled to be endorsed as a
health promotion charity if the entity:
(a) is a health promotion charity; and
(b) has an ABN; and
(c) is not an employer in relation to
which step 2 of the method statement in subsection 5B(1E) applies.
123E
Endorsement by Commissioner as charitable institution (other than public
benevolent institution or health promotion charity)
(1) The Commissioner must endorse an entity
as a charitable institution covered by paragraph 65J(1)(baa) if:
(a) the entity is entitled to be
endorsed as a charitable institution covered by paragraph 65J(1)(baa) (see subsection (2));
and
(b) the entity has applied for that
endorsement in accordance with Division 426 in Schedule 1 to the Taxation
Administration Act 1953.
(2) An entity is entitled to be endorsed as a
charitable institution covered by paragraph 65J(1)(baa) if the entity:
(a) is a charitable institution; and
(b) has an ABN.
Part XI—Miscellaneous
124
Assessments
(1) Where the Commissioner does not have
sufficient information to make an assessment of the fringe benefits taxable
amount of an employer of a year of tax, that fringe benefits taxable amount
shall be deemed, for the purposes of making an assessment under this Act, to be
such amount as, in the opinion of the Commissioner, might reasonably be expected
to be that fringe benefits taxable amount.
(2) In determining whether an assessment is
correct, any determination, opinion or judgment of the Commissioner made, held
or formed in connection with the consideration of an objection against the
assessment shall be deemed to have been made, held or formed when the
assessment was made.
124A
Assessment on assumption
(1) Subject to subsection (4), where:
(a) an employee of an employer has
derived eligible foreign remuneration or foreign earnings during a year of tax;
and
(b) at the time of making an
assessment of the fringe benefits taxable amount of the employer of the year of
tax, it is reasonable to assume that, at a later time, circumstances will exist
because of which that eligible foreign remuneration or foreign earnings, as the
case may be, will be exempt income by virtue of section 23AF or 23AG of
the Income Tax Assessment Act 1936;
this Act applies as if those circumstances existed at the
time of making that assessment.
(2) Subject to subsection (4), where, at
the time of making an assessment of the fringe benefits taxable amount of an
employer of a year of tax, it is reasonable to assume that, at a later time,
circumstances will exist because of which a benefit provided in respect of the
employment of an employee of the employer in, or in respect of, the year of tax
will be an exempt benefit by virtue of section 58B, 58C or 58D, this Act
applies as if those circumstances existed at the time of making that
assessment.
(3) Subject to subsection (4), where:
(a) a fringe benefit (in this
subsection called the temporary accommodation fringe benefit) of
a kind referred to in paragraph 61C(1)(a) is provided in, or in respect of, a
year of tax in respect of the employment of an employee of an employer; and
(b) at the time of making an
assessment of the fringe benefits taxable amount of the employer of the year of
tax, it is reasonable to assume that, at a later time, circumstances will exist
because of which section 61C will apply to reduce the taxable value of the
temporary accommodation fringe benefit in relation to the year of tax by a
particular amount;
this Act applies as if those circumstances existed at the
time of making that assessment.
(4) Where this Act has, by virtue of subsection (1),
(2) or (3), applied on the basis that a circumstance that did not exist at the
time of making an assessment would exist at a later time and the Commissioner,
after making the assessment, becomes satisfied that that circumstance will not
exist, then, notwithstanding section 74, the Commissioner may amend the
assessment at any time for the purposes of ensuring that this Act shall be
taken always to have applied on the basis that that circumstance did not exist.
125
Judicial notice of signature
All courts and tribunals, and all judges
and persons acting judicially or authorised by law or consent of parties to
hear, receive and examine evidence, shall take judicial notice of the signature
of a person who holds or has held the office of Commissioner, Second Commissioner
of Taxation or Deputy Commissioner attached or appended to any official
document in connection with this Act.
126
Evidence
(1) The mere production of:
(a) a notice of assessment; or
(b) a document under the hand of the
Commissioner, a Second Commissioner or a Deputy Commissioner purporting to be a
copy of a notice of assessment;
is conclusive evidence of the due making of the assessment
and, except in proceedings under Part IVC of the Taxation
Administration Act 1953 on a review or appeal relating to the assessment,
that the amounts and all of the particulars of the assessment are correct.
(2) The mere production of a document under
the hand of the Commissioner, a Second Commissioner or a Deputy Commissioner
purporting to be a copy of a document issued or given by the Commissioner, a
Second Commissioner or a Deputy Commissioner is prima facie evidence
that the second‑mentioned document was so issued or given.
(3) The mere production of a document under
the hand of the Commissioner, a Second Commissioner or a Deputy Commissioner
purporting to be a copy of, or an extract from, a return or a notice of
assessment is evidence of the matter set out in the document to the same extent
as the original return or notice, as the case may be, would be if it were produced.
(3A) To avoid doubt, subsection (3) applies
to a copy or an extract of a document that was given to the Commissioner on a
data processing device or by way of electronic transmission unless the taxpayer
can show that the taxpayer did not authorise the document.
(4) The mere production of a certificate in
writing signed by the Commissioner, a Second Commissioner or a Deputy
Commissioner certifying that a sum specified in the certificate was, at the
date of the certificate, due and payable by a person in respect of an amount of
tax or an amount payable by way of an instalment of tax under Division 2
of Part VII or by way of penalty under section 93 or 112 or Part VIII,
is prima facie evidence of the matters stated in the certificate.
(5) The mere production of a Gazette containing
a notice purporting to be issued by the Commissioner is prima facie evidence
that the notice was so issued.
(6) A return under this Act purporting to be
made or signed by or on behalf of a person is prima facie evidence that
the return was made by the person or with the authority of the person.
127
Access to premises etc.
(1) For the purposes of this Act, an officer
authorised in writing by the Commissioner to exercise powers under this
section:
(a) may, at all reasonable times,
enter and remain on any land or premises;
(b) is entitled to full and free
access at all reasonable times to all documents; and
(c) may inspect, examine, make copies
of, or take extracts from, any documents.
(2) An officer is not entitled to enter or
remain on any land or premises under this section if, on being requested by the
occupier of the land or premises for proof of authority, the officer does not
produce an authority in writing signed by the Commissioner stating that the
officer is authorised to exercise powers under this section.
(3) The occupier of land or premises entered
or proposed to be entered by an officer under subsection (1) shall provide
the officer with all reasonable facilities and assistance for the effective
exercise of powers under this section.
Penalty: 30 penalty units.
Note: See section 4AA of the Crimes Act 1914
for the current value of a penalty unit.
128
Commissioner to obtain information and evidence
(1) The Commissioner may, for the purposes of
this Act, by notice in writing, require a person (including a person employed
in or in connection with a Department of the Government of the Commonwealth, of
a State or of a Territory or by any public authority, and whether or not the
person is liable to pay an amount of tax):
(a) to furnish the Commissioner with
such information as the Commissioner requires;
(b) to attend before the Commissioner,
or before an officer authorised by the Commissioner for the purpose, at a time
and place specified in the notice, and then and there answer questions; and
(c) to produce to the Commissioner any
documents in the custody or under the control of the person.
(2) The Commissioner may require the
information or answers to questions to be verified or given, as the case may
be, on oath or affirmation, and either orally or in writing, and for that
purpose the Commissioner, or an officer authorised by the Commissioner in
writing for the purpose, may administer an oath or affirmation.
(3) The oath to be taken or affirmation to be
made by a person for the purposes of this section is an oath or affirmation
that the information or answers the person will give will be true.
(4) The regulations may prescribe scales of
expenses to be allowed to persons required to attend under this section.
129
Agents and trustees
(1) The following provisions of this section
apply in relation to a person (in this section referred to as the representative)
being:
(a) a person who, as agent for an
employer, provides or arranges for the provision of benefits that are fringe
benefits in relation to the employer;
(b) an employer in the capacity of a
trustee, being an employer in relation to whom fringe benefits are provided; or
(c) a trustee in respect of the
affairs of an employer where the trustee, as trustee, provides or arranges for
the provision of benefits that are fringe benefits in relation to the employer.
(2) The representative:
(a) shall furnish returns in relation
to the fringe benefits; and
(b) is liable to any tax payable in
respect of the provision of the fringe benefits;
but only in the capacity of agent or trustee, as the case
requires, and each such return shall be separate and distinct from any other
return furnished or lodged by the representative.
(3) The representative is, by force of this
section:
(a) authorised and required to retain
from time to time any money that comes to the representative in the capacity as
agent for the other person or trustee of the trust estate, or so much of it as
is sufficient to pay the amount of tax;
(b) made personally liable for the
amount of tax after it becomes payable to the extent of any amount that the
representative is required to retain under paragraph (a); and
(c) indemnified for all payments that
the representative makes pursuant to this section.
(4) For the purposes of ensuring payment of
the amount of tax, the Commissioner has the same remedies against attachable
property of any kind vested in, under the control or management of, or in the
possession of, the representative as the Commissioner would have against the
property of any other person in respect of an amount of tax payable by the
other person.
(5) In this section, unless the contrary
intention appears, tax includes additional tax under section 93
or Part VIII.
132
Records to be kept and preserved
(1) An employer shall:
(a) keep records that record and
explain all transactions and other acts engaged in by the employer or any other
person that are relevant for the purpose of ascertaining the employer’s
liability under this Act; and
(b) retain those records, and any
records given to the employer under paragraph (2)(b), for a period of 5
years after the completion of the transactions or acts to which they relate.
Note: There is an exemption from the requirements of
this subsection in certain cases: see Part XIA (Record keeping exemption).
(2) Where an associate of an employer
provides, or arranges for the provision of, fringe benefits to, or to
associates of, employees of the employer, the associate shall:
(a) keep records that record and
explain all transactions and other acts engaged in by the associate or any
other person in respect of the provision of those fringe benefits, being
transactions or acts that are relevant for the purpose of ascertaining the
employer’s liability under this Act;
(b) give to the employer a copy of the
records, so far as they relate to a year of tax, not later than 21 days after
the end of that year of tax; and
(c) retain those records for a period
of 5 years after the completion of the transactions or acts to which they
relate.
(3) A person
who is required by this section to keep records shall keep the records:
(a) in writing in the English language
or so as to enable the records to be readily accessible and convertible into
writing in the English language; and
(b) so as to enable the employer’s
liability under this Act to be readily ascertained.
(4) Nothing in this section shall be taken to
require a person (in this subsection referred to as the record keeper)
to keep a record of information relating to a transaction or act engaged in by
another person if:
(a) where the transaction or act was
entered into or done under an arrangement to which the record keeper was a
party:
(i) the record keeper made
all reasonable efforts:
(A) to
ascertain whether the transaction had been entered into or the act had been
done; and
(B) to
obtain the information; and
(ii) did not know, and
could not reasonably be expected to have known, the information; or
(b) in any other case—the record
keeper did not know, and could not reasonably be expected to have known, the
information.
(5) Nothing in this section shall be taken to
require a person to retain records where:
(a) the Commissioner has notified the
person that retention of the records is not required; or
(b) the person is a company that has
gone into liquidation and been finally dissolved.
Penalty: 30 penalty units.
Note 1: There is an administrative penalty if you do
not keep or retain records as required by this section: see section 288‑25
in Schedule 1 to the Taxation Administration Act 1953.
Note 2: See section 4AA of the Crimes Act 1914
for the current value of a penalty unit.
132A
Written evidence not available when return lodged
(1) This
section applies if:
(a) a provision of this Act requires
documentary evidence of an expense to be given to, or obtained by, an employer
before the declaration date for an employer for an FBT year; and
(b) at the date of lodgment of the
employer’s return of the fringe benefits taxable amount for the FBT year:
(i) the employer has not
been given, or has not obtained, the documentary evidence;
but:
(ii) the employer has good
reason to expect that he or she will be given, or will obtain, that evidence
within a reasonable time.
(2) If this section applies:
(a) the employer may complete his or
her return as if the documentary evidence had been given to, or obtained by,
him or her by the date of lodgment; and
(b) if the evidence is given to, or
obtained by, the employer within a reasonable time—this Act applies as if the
documentary evidence had been given to, or obtained by, the employer before the
declaration date; and
(c) if the evidence is not given to,
or obtained by, the employer within a reasonable time—the employer must notify
the Commissioner in writing that the evidence has not been obtained.
134
Service on partnerships and associations
Service, whether by post or otherwise,
of a notice or document on a member of a partnership or on a member of the
committee of management of an unincorporated association or other body of
persons shall be deemed, for the purposes of this Act, to constitute service of
the notice or other document on each member of the partnership or each member
of the association or other body of persons, as the case may be.
135
Regulations
The Governor‑General may make
regulations, not inconsistent with this Act, prescribing all matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act;
and, in particular, may make regulations prescribing
penalties not exceeding a fine of 5 penalty units for offences against the
regulations.
Part XIA—Record keeping exemption
Division 1—Overview of Part
135A
Overview of Part
(1) Basically, this Part provides that, if
certain conditions are satisfied, an employer need not keep or retain most of
the records otherwise required to be kept and retained under subsection 132(1).
(2) If the conditions are satisfied, the
employer’s FBT liability is generally worked out using the aggregate fringe
benefits amount from a previous FBT year (the base year) instead
of the current FBT year.
Division 2—Conditions
135B
Conditions that must be satisfied
(1) This section has 2 conditions that must
be satisfied for Division 3 to apply to an employer for an FBT year (the current
year).
First condition: base year established
(2) Either of the following must be true:
(a) the FBT year immediately before
the current year was a base year (see section 135C) of the employer; or
(b) some other FBT year before the
current year was a base year of the employer and section 135G applied to
the employer for every FBT year after that base year but before the current
year.
Second condition: no Commissioner’s notice in previous
year
(3) The employer must not have been given a
paragraph 135E(2)(c) notice by the Commissioner during the FBT year immediately
before the current year.
135C
What is a base year?
(1) An FBT year is a base year
of an employer if:
(a) the employer carries on business
operations throughout the FBT year; and
(b) the employer lodges an FBT return
for the FBT year within the time allowed for doing so under section 68;
and
(c) as at the declaration date for the
FBT year, the employer has kept and retained all the records that are (ignoring
section 135E) required to be kept and retained under subsection 132(1) in
relation to the employer’s liability under this Act for the FBT year; and
(d) the employer’s aggregate fringe
benefits amount for the FBT year does not exceed the exemption threshold (see subsections (2)
and (3)) for the year; and
(e) section 135G does not apply
to the employer for the FBT year (that section allows employers to work out
their liability to pay tax using their aggregate fringe benefits amount from a
previous base year, instead of the current FBT year).
Exemption threshold for 1996‑97 FBT year
(2) The exemption threshold for
the FBT year beginning on 1 April 1996 is $5,000.
Exemption threshold for later FBT years
(3) The exemption threshold for
a later FBT year is the amount worked out using the formula:
where:
exemption threshold is the exemption
threshold for the previous FBT year.
indexation factor is the number worked out,
to 3 decimal places (rounding up if the fourth decimal place is 5 or more),
under subsection (4) for the later FBT year.
Indexation factor
(4) The indexation factor for an FBT year is
the greater of:
(a) 1; and
(b) the number worked out using the
formula:
(5) In subsection (4):
earlier December year means the period of 12 months
immediately before the most recent December year.
index number, for a quarter, means the All
Groups Consumer Price Index number for the quarter (being the weighted average
of the 8 capital cities) first published by the Australian Statistician for the
quarter.
most recent December year means the period of
12 months ending on 31 December immediately before the FBT year for which
the threshold is being worked out.
Disregard new publications
(6) If the Australian Statistician publishes
an index number for a quarter in substitution for an index number previously
published for that quarter, disregard the later publication.
Changed reference base
(7) However, if the Australian Statistician
changes the reference base for the Consumer Price Index, take into account only
the index numbers published in terms of the new reference base.
Rounding down to whole dollar amount
(8) Round the subsection (3) result down
to the nearest whole dollar (if the result is not already a number of whole
dollars).
Division 3—Consequences if conditions in Division 2 are satisfied
135D
Consequences
This Division has the consequences that
apply if both conditions in section 135B are satisfied in relation to an
employer for an FBT year (the current year).
135E
Exemption from keeping records
(1) Subsection 132(1) (which requires certain
records to be kept and retained) does not apply to the employer in relation to
the employer’s liability under this Act for the current year.
Records the employer must still keep
(2) However, subsection 132(1) still applies
in relation to the employer’s liability under this Act for the current year so
far as it relates to the following:
(a) copies of records that an
associate of the employer gives the employer under paragraph 132(2)(b);
(b) benefits provided at a time when
the employer was:
(i) a government body (see
subsection 136(1)); or
(ii) a person all of whose
income is exempt from income tax;
(c) benefits provided after the
Commissioner has given the employer a written notice under this paragraph,
during the current year, requiring the employer to resume keeping records.
135F
Keeping records for 5 years after they are last relied on
The period in paragraph 132(1)(b) for
retaining records relating to the employer’s liability under this Act in
respect of the employer’s most recent base year is extended (or further
extended) to 5 years after the end of the current year (if the period is not
already that long).
135G
Way to work out liability
The employer’s liability to pay tax
under section 66 is worked out using the employer’s aggregate fringe
benefits amount for the employer’s most recent base year, instead of for the
current year.
135H
Exception if employer chooses to use current year aggregate fringe benefits
amount
Section 135G does not apply if the
employer chooses to work out his or her liability using the employer’s
aggregate fringe benefits amount for the current year.
135J
Exception if employer is government body or tax‑exempt
Section 135G does not apply if the
employer is:
(a) a government body (see subsection
136(1)); or
(b) a person all of whose income is
exempt from income tax;
at any time during the current year.
135K
Exception if aggregate fringe benefits amount increases too much
(1) Section 135G does not apply if the
employer’s aggregate fringe benefits amount for the current year is more than
20% greater than it was for the employer’s most recent base year (unless the
difference is $100 or less).
Example: The aggregate fringe benefits amount was $100 for
the most recent base year and $180 for the current year. This is 80%
greater—well over the 20% limit. But section 135G can still apply because
the difference is only $80.
Special rules for applying this test
(2) In working out, for the purposes of subsection (1),
the employer’s aggregate fringe benefits amount for the current year, apply the
following rules.
Section 123 disregarded
(3) Disregard the effect of section 123
(which deals with failing to retain statutory evidentiary documents).
Special rule for car fringe benefits—statutory formula
method used in earlier year
(4) If:
(a) for the employer’s first car
benefit year (if any—see subsection (6)), the employer used the method in
section 9 (statutory formula) to determine the taxable value of one or
more car fringe benefits relating to a particular car; and
(b) the employer uses the same method
for that car, or for a car provided as a replacement of that car, for the
current year; and
(c) the annualised number of
kilometres the car (or its replacement) travelled in the current year is at
least 80% of the annualised number of kilometres the car travelled in the first
car benefit year;
the employer may, in using that same method, use the
statutory fraction for the car from the first car benefit year, instead of from
the current year.
Special rule for car fringe benefits—cost basis method
used in earlier year
(5) If:
(a) for the employer’s first car
benefit year (if any—see subsection (6)), the employer used the method in
section 10 (cost basis) to determine the taxable value of one or more car
fringe benefits relating to a particular car; and
(b) the employer uses the same method
for that car, or for a car provided as a replacement of that car, for the
current year; and
(c) the business use percentage (see
subsection 136(1)) for the current year is not lower than the business use
percentage for the first car benefit year by more than 20 percentage points;
the employer may, in using that same method, use the
business use percentage for the car from the first car benefit year, instead of
from the current year.
Meaning of first car benefit year
(6) In subsections (4) and (5), the
employer’s first car benefit year is the first FBT year (if any)
in the period:
(a) beginning with the employer’s most
recent base year; and
(b) ending with the FBT year
immediately before the current year;
during which one or more car fringe benefits were provided
in relation to the employer.
135L
Employer not in business throughout current year
(1) This section applies if the employer does
not carry on business operations throughout the current year.
Pro‑rata reduction of base year aggregate fringe
benefits amount
(2) For the purposes of sections 135G
and 135K, the employer’s aggregate fringe benefits amount for the employer’s most
recent base year is replaced by the amount worked out using the following
formula:
Part XIB—Reportable fringe benefits totals
135M
Simplified outline of this Part
The following is a simplified outline of
this Part:
An employee’s reportable fringe
benefits total for a year of income is the sum of each of the employee’s
reportable fringe benefits amounts for the year of income (see section 135N).
(The total is taken into account under other Acts; for example in working out
some income tax rebates, Medicare levy surcharge and superannuation surcharge
and whether the employee must make a repayment of a debt under the Higher
Education Funding Act 1988 or the Higher Education Support Act 2003.)
An employee’s reportable fringe
benefits amount from an employer is generally the grossed‑up value of the
employee’s individual fringe benefits amount from that employer (see section 135P).
Special rules apply for working out
the employee’s reportable fringe benefits amount in respect of the employee’s
employment if the benefits provided in respect of the employment include exempt
benefits under section 57A or 58 (about employment with public benevolent
institutions, certain hospitals, public ambulance services, health promotion
charities and bodies providing care for sick, elderly or disadvantaged persons)
(see section 135Q).
135N
Employee’s reportable fringe benefits total
An employee’s reportable fringe
benefits total for a year of income is the sum of each of the
employee’s reportable fringe benefits amounts for the year of income in respect
of the employee’s employment by an employer.
Example: Sylvia employs Angela, who has a reportable
fringe benefits amount of $3,000 for the 1999‑2000 year of income from
her employment by Sylvia.
Angela is also an employee of Geoff, and
has a reportable fringe benefits amount of $4,000 for that year of income from
her employment by Geoff.
Angela’s reportable fringe benefits total
for the 1999‑2000 year of income is $7,000.
135P
Employee’s reportable fringe benefits amount—general rule
Does an employee have a reportable fringe benefits
amount?
(1) An employee has a reportable fringe
benefits amount for a year of income in respect of the employee’s
employment by an employer if the employee’s individual fringe benefits amount
for the year of tax ending on 31 March in the year of income in respect of
the employee’s employment by the employer is more than $2,000.
Example 1: On 31 May 2007, Sylvia waives a debt of
$2,545 that her employee Angela owes her, thus providing Angela with a debt
waiver fringe benefit with a taxable value of $2,545 for the year of tax ending
on 31 March 2008. Angela has a reportable fringe benefits amount for the
year of income ending on 30 June 2008 in respect of her employment by
Sylvia.
Example 2: On 1 March 2008, Angela’s employer Neil
waives a debt of $1,900 Angela owes him, providing Angela with a debt waiver
fringe benefit with a taxable value of $1,900 for the year of tax ending on 31 March 2008. However, he does not provide any other fringe benefits for that year
of tax in respect of her employment, so Angela does not have a reportable
fringe benefits amount for the year of income ending on 30 June 2008 in respect of her employment by Neil.
Size of the reportable fringe benefits amount
(2) The reportable fringe benefits
amount is the amount worked out using the formula:
where:
individual fringe benefits amount is the
employee’s individual fringe benefits amount for the year of tax in respect of
the employee’s employment by the employer.
135Q Reportable
fringe benefits amount for some employees of certain institutions
Overview
(1) This section explains how to work out
whether an employee has a reportable fringe benefits amount for a year of
income in respect of the employee’s employment by an employer described in
section 57A or 58, and the size of that amount, if:
(a) a benefit is provided in respect
of the employee’s employment by the employer; and
(b) the benefit is an exempt benefit
because of one of those sections; and
(c) apart from those sections, the
benefit would be a fringe benefit relating to the employee, the employer and
the year of tax ending on 31 March in the employee’s year of income.
Note: Section 57A deals with public benevolent
institutions, certain charitable institutions, employers of employees connected
with certain hospitals and employers of employees connected with public
ambulance services. Section 58 deals with persons employed by government
bodies, religious institutions and non‑profit companies to care for the
elderly or disadvantaged.
Does an employee have a reportable fringe benefits
amount?
(2) The employee has a reportable
fringe benefits amount (worked out under subsection (4)) for the
year of income in respect of the employee’s employment by the employer if the
sum of the following is more than $2,000:
(a) the employee’s individual fringe
benefits amount (if any) for the year of tax ending on 31 March in the
year of income in respect of the employee’s employment by the employer;
(b) the employee’s individual quasi‑fringe
benefits amount for the year of tax ending on 31 March in the year of
income in respect of the employee’s employment by the employer.
Note: An employee of an employer described in
section 57A will not have an individual fringe benefits amount from that
employer, because all benefits provided in respect of employment by that
employer are exempt benefits.
What is the employee’s individual quasi‑fringe
benefits amount?
(3) The employee’s individual quasi‑fringe
benefits amount is the amount that would be the employee’s individual
fringe benefits amount for the year of tax in respect of the employee’s
employment by the employer if:
(a) each benefit described in subsection (1)
in relation to the employee, employer and year of tax were a fringe benefit;
and
(b) there were no other fringe
benefits relating to the employee, the employer and the year of tax.
Note: Section 5E explains how to work out the
employee’s individual fringe benefits amount for the year of tax.
Size of the reportable fringe benefits amount
(4) The reportable fringe benefits
amount is the amount worked out using the formula:
where:
individual fringe benefits amount is the
employee’s individual fringe benefits amount (if any) for the year of tax in
respect of the employee’s employment by the employer.
individual quasi‑fringe benefits amount
is the employee’s individual quasi‑fringe benefits amount for the year of
tax in respect of the employee’s employment by the employer.
rate of tax is the rate of tax for the year
of tax.
Relationship with section 135P
(5) This section has effect despite section 135P.
Part XIC—Application of the Act to nominated State or Territory
bodies
135R
Application of this Part
This Part applies in relation to the
year of tax starting on 1 April 2001 and later years of tax.
135S
Nomination of eligible State or Territory bodies
(1) The following:
(a) a State; or
(b) the Australian Capital Territory;
or
(c) the Northern Territory;
may nominate an eligible State or Territory body for the
purposes of this Part.
Form and content etc. of nomination
(2) The nomination:
(a) must be in the approved form; and
(b) must specify the first year of tax
in relation to which the nomination is to have effect; and
(c) may specify that a class or
classes of employees are to be taken to have a sufficient connection with the
body for the purposes of subsection 135U(3); and
(d) must be given to the Commissioner
on or before 21 May in the year of tax specified under paragraph (b).
When nomination has effect
(3) Subject to subsection (5), the
nomination has effect in relation to the body in relation to the first year of
tax as specified in the nomination and in relation to all later years of tax.
Avoidance of doubt
(4) To avoid
doubt:
(a) the State or Territory may
nominate more than one eligible State or Territory body; and
(b) the State or Territory may make
nominations at different times (including in different years of tax); and
(c) if the State or Territory
nominates more than one eligible State or Territory body, it need not specify
the same first year of tax for them.
Variation or revocation of nomination
(5) The nomination may be varied or revoked,
but a variation or revocation:
(a) must be in the approved form; and
(b) must specify the first year of tax
in relation to which the variation or revocation is to have effect; and
(c) must be given to the Commissioner
on or before 21 May in that first year of tax.
Nominated State or Territory bodies
(6) For each year of tax during which the
nomination has effect in relation to an eligible State or Territory body, the
body is a nominated State or Territory body.
135T Eligible
State or Territory bodies
(1) Each of the following is an eligible
State or Territory body:
(a) a department within
the meaning of section 6 of the Public Sector Employment and Management
Act 2002 of New South Wales;
(b) an agency within the
meaning of section 4 of the Public Sector Management and Employment Act
1998 of Victoria;
(c) an office referred
to in subsection 16(1) of the Public Sector Management and Employment Act
1998 of Victoria;
(d) a department within
the meaning of section 7 of the Public Service Act 1996 of Queensland;
(e) a department within
the meaning of section 3 of the Public Sector Management Act 1994
of Western Australia, as extended by subsection 3(2) of the Financial
Administration and Audit Act 1985 of Western Australia;
(f) a subsidiary body as
defined in paragraphs (aa) and (b) of the definition of that term in
subsection 3(1) of the Financial Administration and Audit Act 1985 of Western
Australia;
(g) an administrative unit within
the meaning of section 3 of the Public Sector Management Act 1995 of
South Australia;
(h) a government department
within the meaning of subsection 3(1) of the State Service Act 2000 of Tasmania;
(i) a department within
the meaning of section 3 of the Financial Management Act 1996 of
the Australian Capital Territory;
(j) an agency within
the meaning of section 3 of the Financial Management Act 1995 of
the Northern Territory;
(k) a government business
division within the meaning of section 3 of the Financial
Management Act 1995 of the Northern Territory;
(l) a department of a
Parliament of a State;
(m) a department of a
Legislative Assembly of a Territory.
(2) However, a government body that pays, or
is liable to pay, salary or wages is not an eligible State or Territory
body.
(3) The regulations may make modifications to
subsection (1).
(4) In subsection (3), modifications
includes additions, omissions and substitutions.
135U
Consequences of nomination
Change in employer
(1) Subject to subsection (4), a
nominated State or Territory body, instead of the governing body otherwise
applicable, is taken, for the purposes of the Act, to be the employer of each
employee of the State or Territory that has a sufficient connection with the
body.
Meaning of sufficient connection
(2) An employee of the State or Territory has
a sufficient connection with the body if the employee performs
his or her duties of employment wholly or principally in the body.
(3) An employee of the State or Territory is
taken to have a sufficient connection with the body if:
(a) the employee does not perform his
or her duties of employment wholly or principally in any other nominated State
or Territory body; and
(b) the employee is of a class of
employees that the State or Territory has specified under paragraph 135S(2)(c)
is to be taken to have a sufficient connection with the body.
Obligations etc. still fall on State or Territory
(4) Any right that would be conferred, or
obligation that would be imposed, on the nominated State or Territory body as a
consequence of subsection (1) is instead conferred or imposed on the State
or the Territory.
Other consequences
(5) Also, for the purposes of this Act:
(a) the nominated State or Territory
body is taken to be a company; and
(b) the following are taken to be
companies related to the nominated State or Territory body:
(i) each other nominated
State or Territory body of the State or Territory concerned; and
(ii) the State or Territory
concerned; and
(iii) each authority of the
State or Territory that is not a related company of the nominated State or
Territory body under subparagraph (i) or (ii); and
(c) the nominated State or Territory
body is taken to be a government body.
Where nominated State or Territory body ceases to exist
(6) If the nominated State or Territory body
ceases to exist during a year of tax:
(a) the State or Territory is taken,
from the time the body ceases to exist, to be the employer of all employees who
had a sufficient connection with the body immediately before it ceased to
exist; and
(b) the State or Territory is taken to
have revoked the nomination of the body, with effect from the start of the next
year of tax.
135V
Working out the notional tax amount where nominations have been made, varied or
revoked
When section applies
(1) This section applies if a State or
Territory does any one or more of the following under section 135S:
(a) makes one or more nominations;
(b) varies one or more nominations;
(c) revokes one or more nominations;
with effect from the start of the same year of tax (the year
of the change).
State or Territory to apportion prior year’s assessed
tax for instalment purposes
(2) If this section applies, the State or
Territory must, in accordance with this section, specify the amounts of the tax
that are to be taken for the purposes of subsection 110(1) to be assessed in
respect of the following in respect of the year of tax (the prior year of
tax) immediately preceding the year of the change:
(a) each body that is a nominated
State or Territory body of the State or Territory for the year of the change
(even if that year is not the first year of tax for that body);
(b) the State or Territory.
(3) The sum of the amounts specified under subsection (2)
must equal the sum of the tax that was assessed in respect of the following in
respect of the prior year of tax:
(a) the State or Territory;
(b) if there were nominated State or
Territory bodies of the State or Territory for the prior year of tax—those
bodies.
Form etc. of apportionment
(4) The State or Territory must:
(a) specify the amounts after it makes
the last of the nominations, variations or revocations; and
(b) do so in the approved form; and
(c) give the approved form to the
Commissioner on or before 21 May in the year of the change.
Effect of apportionment
(5) For the purposes of subsection 110(1),
the amounts specified in the approved form have effect to replace the amounts
that would otherwise be the tax assessed for the prior year of tax in respect
of the nominated State or Territory bodies and the State or Territory.
Consequences of failure to apportion
(6) If the requirements of this section are
not complied with:
(a) any making, variation or
revocation of a nomination to which this section applies has no effect in
relation to any year of tax; and
(b) all existing nominations of the
State or Territory under section 135S cease to have effect at the start of
the year of the change; and
(c) the amount of the tax that is
taken for the purposes of subsection 110(1) to have been assessed in respect of
the State or Territory in respect of the prior year of tax is equal to the sum
of the amounts of tax assessed in respect of that year of tax in respect of the
following:
(i) the State or
Territory;
(ii) if there were
nominated State or Territory bodies for that year of tax—those bodies.
135W
Notional tax amount where a nominated State or Territory body ceases to exist
If a nominated State or Territory body
ceases to exist during a year of tax (other than because of subsection
135V(6)), then, for the purposes of subsection 110(1), the amount of the tax
that was assessed, in respect of the immediately preceding year of tax in
respect of the State or Territory that nominated the body, is taken to be an
amount worked out using the following formula:
where:
amount actually assessed means the amount of
the tax assessed in respect of the State or Territory in respect of the
immediately preceding year of tax.
notional tax amount of the State or Territory body means
the notional tax amount of the nominated State or Territory body in respect of
the year of tax, as at the end of the last day of the last quarter before the
body ceased to exist.
previous credits of the State or Territory body means
the total of any credits claimed under section 112A in relation to one or
more instalments of tax of the nominated State or Territory body for that year
of tax.
previous instalments by the State or Territory body means
the total of any instalments of tax of the nominated State or Territory body
for that year of tax that became due and payable before it ceased to exist.
135X
Application of certain provisions by agreement with the Commissioner
Object
(1) The object of this section is:
(a) to ensure that the calculation of
the taxable value of certain fringe benefits is not affected where continuity
in the fulfilment of certain record‑keeping provisions is broken solely
because of a transitional event; and
(b) to preserve the character of
certain benefits where that character would otherwise be lost solely because of
a transitional event.
Meaning of transitional event
(2) A transitional event occurs
if:
(a) a State or Territory makes a
nomination under section 135S; or
(b) a State or Territory varies a
nomination under section 135S; or
(c) a State or Territory revokes a
nomination under section 135S; or
(d) a nominated State or Territory
body ceases to exist.
Agreement about consequences of transitional events
(3) The Commissioner may enter into a written
agreement with a State or Territory about what is to happen in respect of the
following when a transitional event occurs:
(a) whether a register kept by the
State or Territory, or a nominated State or Territory body, is to be treated as
a valid register for the purposes of Subdivision D of Division 10A of Part III
of the Act (which deals with the 12 week record keeping method for car parking
fringe benefits) and the employees and FBT years in relation to which the
register is to be treated as valid;
(b) whether a benefit that would
otherwise lose its character as an exempt benefit under section 58B, 58C,
58D or 58S is to be treated as an exempt benefit;
(c) whether a benefit that would
otherwise lose its character as an amortised fringe benefit under section 65CA
is to be treated as an amortised fringe benefit;
(d) whether a benefit that would not
otherwise be covered by a recurring fringe benefit declaration under section 152A
is to be treated as being covered by the declaration;
(e) whether a year of tax is to be
treated as a log book year of tax of the State or Territory, or a nominated
State or Territory body, for the purposes of the application of section 10
in relation to a car fringe benefit in relation to that State or Territory, or
that nominated State or Territory body, in relation to a particular car or
class of cars (however described);
(f) whether a year of tax that is a
base year of tax for the purposes of section 26 is to continue to be
treated as a base year of tax.
(4) So far as the agreement is inconsistent
with this Act, the agreement prevails.
Part XII—Interpretation
136
Interpretation
(1) In this Act, unless the contrary
intention appears:
ABN has the meaning given by the A New Tax
System (Australian Business Number) Act 1999.
academic period, in relation to an
educational institution, means:
(a) if the academic years of the
educational institution are divided into terms but not semesters—a term of the
academic year;
(b) if the academic years of the
educational institution are divided into semesters (whether or not they are
also divided into terms)—a semester of the academic year; or
(c) if the academic years of the
educational institution are not divided into terms or semesters—an academic
year of the institution.
agent includes:
(a) a person who, for and on behalf of
a person out of Australia, has the management or control in Australia of the
whole or a part of a business of the second‑mentioned person; and
(b) a person declared by the
Commissioner, by notice in writing served on the person, to be an agent or the
sole agent of a person for the purposes of this Act.
agent’s certificate means a certificate under
subsection 71(1).
aggregate fringe benefits amount has the
meaning given by section 5C.
aggregate non‑exempt amount has the
meaning given by subsection 5B(1E).
aggregate non‑rebatable amount has the
meaning given by subsection 65J(2B).
airline operator, in relation to transport in
a passenger aircraft provided in respect of the employment of an employee,
means a person who, at or about the time when that transport commenced to be
provided, carried on a business of providing transport on passenger aircraft
principally to outsiders.
airline transport benefit means a benefit
referred to in section 32.
airline transport fringe benefit means a
fringe benefit that is an airline transport benefit.
all‑day parking, in relation to a
particular day, means parking of a single car for a continuous period of 6
hours or more during a daylight period on that day.
amortised fringe benefit has the meaning
given by section 65CA.
approved form has the meaning given by
section 388‑50 in Schedule 1 to the Taxation Administration
Act 1953.
approved worker entitlement fund has the
meaning given by subsections 58PB(1) and (2).
arm’s length loan means a loan where the
parties to the loan are dealing with each other at arm’s length in relation to
the loan.
arm’s length transaction means a transaction
where the parties to the transaction are dealing with each other at arm’s
length in relation to the transaction.
arrangement means:
(a) any agreement, arrangement,
understanding, promise or undertaking, whether express or implied, and whether
or not enforceable, or intended to be enforceable, by legal proceedings; and
(b) any scheme, plan, proposal,
action, course of action or course of conduct, whether unilateral or otherwise.
assessable income has the meaning given by
subsection 995‑1(1) of the Income Tax Assessment Act 1997.
assessment
means:
(a) the ascertainment of the fringe
benefits taxable amount of an employer of a year of tax and of the tax payable
on that amount; or
(b) the ascertainment of the
additional tax payable under a provision of Part VIII.
associate has the meaning given by
section 318 of the Income Tax Assessment Act 1936.
Note: Section 159 of this Act affects the above
definition.
associated premises, in relation to a person,
means premises, or a part of premises:
(a) owned by the person; or
(b) leased by the person; or
(c) otherwise under the control of the
person;
but does not include:
(d) business premises of the person;
or
(e) premises, or a part of premises,
used as a place of residence of an employee of the person or an employee of an
associate of the person.
Australia, when used in a geographical sense,
includes the external Territories.
Australian workers’ compensation law means a
workers’ compensation law that is a law of the Commonwealth or of a State or
Territory.
basic car rate, in relation to a year of tax
ending on 31 March in a year, means the rate prescribed for the purposes
of section 28‑25 of the Income Tax Assessment Act 1997 in
relation to the year of income ending on 30 June in that year.
benchmark interest
rate:
(a) in relation to a year of tax,
means the rate of interest, known as the large bank housing lenders variable
interest rate on loans for housing for owner occupation, last published by the
Reserve Bank of Australia before the commencement of the year of tax; and
(b) in relation to a time after 2 April 1986 and before 1 July 1986, means a rate of interest offered anywhere
in Australia at that time in respect of a Commonwealth Bank housing loan.
benefit includes any right (including a right
in relation to, and an interest in, real or personal property), privilege,
service or facility and, without limiting the generality of the foregoing,
includes a right, benefit, privilege, service or facility that is, or is to be,
provided under:
(a) an arrangement for or in relation
to:
(i) the performance of
work (including work of a professional nature), whether with or without the
provision of property;
(ii) the provision of, or
of the use of facilities for, entertainment, recreation or instruction; or
(iii) the conferring of
rights, benefits or privileges for which remuneration is payable in the form of
a royalty, tribute, levy or similar exaction;
(b) a contract of insurance; or
(c) an arrangement for or in relation
to the lending of money.
board benefit means a benefit referred to in
section 35.
board fringe benefit means a fringe benefit
that is a board benefit.
board meal means a meal provided, in respect
of the employment of an employee of an employer, to a person (in this
definition referred to as the recipient), being the employee or
an associate of the employee, where:
(a) the meal is provided on a meal
entitlement day;
(b) the meal is provided by the
employer or, if the employer is a company, by the employer or by a company that
is related to the employer;
(c) either of the following
subparagraphs applies:
(i) the meal is cooked or
otherwise prepared on eligible premises of the employer and is provided to the
recipient on eligible premises of the employer (not being a dining facility
that, at any time, is open to the public);
(ii) the following
conditions are satisfied:
(A) the
duties of employment of the employee consist principally of duties to be
performed in, or in connection with, an eligible dining facility of the
employer or a facility for the provision of accommodation, recreation or travel
of which the eligible dining facility forms part;
(B) the meal
is cooked or otherwise prepared in the cooking facility of the eligible dining
facility;
(C) the meal
is provided to the recipient in the eligible dining facility;
(d) the facility in which the meal is
cooked or otherwise prepared is not for use wholly or principally for the
cooking or other preparation of meals solely for the employee or associates of
the employee or for the employee and associates of the employee; and
(e) the meal is not provided at a
party, reception or other social function.
business day means a day other than a
Saturday, a Sunday or a public holiday in the place concerned.
business journey means:
(a) for the purposes of the
application of Division 2 of Part III in relation to a car fringe
benefit in relation to an employer in relation to a car—a journey undertaken in
a car otherwise than in the application of the car to a private use, being an
application that results in the provision of a fringe benefit in relation to
the employer; or
(b) for the purposes of the
application of sections 19, 24, 44 and 52 in relation to a loan fringe
benefit, an expense payment fringe benefit, a property fringe benefit or a
residual fringe benefit, as the case requires, in relation to an employee in
relation to a car—a journey undertaken in the car in the course of producing
assessable income of the employee.
business kilometre, in relation to a car,
means a kilometre travelled by the car in the course of a business journey.
business operations, in relation to a
government body or a non‑profit company, includes any operations or
activities carried out by that body or company.
business premises, in relation to a person,
means premises, or a part of premises, of the person used, in whole or in part,
for the purposes of business operations of the person, but does not include:
(a) premises, or a part of premises,
used as a place of residence of an employee of the person or an employee of an
associate of the person; or
(b) a corporate box; or
(c) boats or planes used primarily for
the purpose of providing entertainment unless the boat or plane is used in the
person’s business of providing entertainment; or
(d) other premises used primarily for
the purpose of providing entertainment unless the premises are used in the
person’s business of providing entertainment.
business use percentage, for a car held by a
person during a period (the holding period) in an FBT year, means
the percentage worked out using the formula:
car has the meaning given by subsection 995‑1(1)
of the Income Tax Assessment Act 1997.
car benefit means a benefit referred to in
subsection 7(1).
car expense, in relation to a car, means an
expense incurred in respect of:
(a) the registration of, or insurance
in respect of, the car;
(b) repairs to or maintenance of the
car; or
(c) fuel for the car.
car expense payment benefit means an expense
payment fringe benefit where the recipients expenditure is a Division 28
car expense.
car fringe benefit means a fringe benefit
that is a car benefit.
car loan benefit means a loan fringe benefit
where the loan was used by the recipient to:
(a) purchase a car; or
(b) pay a Division 28 car
expense.
car parking benefit means a benefit referred
to in section 39A.
car parking fringe benefit means a fringe
benefit that is a car parking benefit.
car property benefit means a property fringe
benefit where, if the recipient had incurred expenditure in respect of the
provision of the recipients property, that expenditure would have been a
Division 28 car expense.
car residual benefit means a residual fringe
benefit where, if the recipient had incurred expenditure in respect of the
provision of the recipients benefit, that expenditure would have been a
Division 28 car expense.
car substantiation declaration, in relation
to a car held by a person during a period (in this definition called the holding
period) in a year of tax, means a declaration, in a form approved by
the Commissioner, for the purposes of paragraphs 19(1)(ca), 24(1)(ea),
44(1)(da) and 52(1)(da), in relation to the car in relation to the holding
period.
child has the meaning given by subsection 995‑1(1)
of the Income Tax Assessment Act 1997.
child care facility means a facility at which
a person receives, or is ready to receive, 2 or more children under the age of
6, not being associates of the person, for the purpose of minding, caring for
or educating them for a day or part of a day without provision for residential
care but does not include a facility at the place of residence of any of those
children.
close relative, in relation to a person,
means:
(a) the spouse of the person;
(b) a child or parent of the person;
or
(c) a parent of the person’s spouse.
commercial parking station, in relation to a
particular day, means a permanent commercial car parking facility where any or
all of the car parking spaces are available in the ordinary course of business
to members of the public for all‑day parking on that day on payment of a
fee, but does not include a parking facility on a public street, road, lane,
thoroughfare or footpath paid for by inserting money in a meter or by obtaining
a voucher.
Commissioner means the Commissioner of
Taxation.
Commonwealth Bank housing loan means an arm’s
length loan by the Commonwealth Bank of Australia made in the ordinary course
of business to a member of the public, being a loan:
(a) for housing purposes; and
(b) the terms of which provide for:
(i) interest to be
calculated on the daily balance of the loan; and
(ii) that interest to be
added to the balance of the loan at monthly intervals.
company includes any body or association,
corporate or unincorporate, but does not include a partnership.
comparison time means:
(a) in relation to a residual fringe
benefit:
(i) where the fringe
benefit is constituted by a benefit to which subsection 46(2) applies—the
commencement of the billing period referred to in that subsection in relation
to the benefit; or
(ii) in any other case:
(A) where
the fringe benefit is a period residual fringe benefit—the time when the recipients
overall benefit commenced to be provided; or
(B) in any
other case—the time when the benefit is provided; and
(b) in relation to an air transport
fringe benefit—the time when the benefit is provided.
compensable work‑related trauma means
work‑related trauma suffered by an employee where:
(a) if there is no Australian workers’
compensation law that applies to the employment of the employee—if any
Australian workers’ compensation law had applied to the employment of the
employee, that law would have provided for compensation or other benefits for
or in respect of the trauma; or
(b) in all cases—there is a workers’
compensation law that:
(i) applies to the
employment of the employee; and
(ii) provides for
compensation or other benefits for or in respect of the trauma.
contract of investment insurance means a
contract of life assurance insuring payment of money in the event that the life
insured is alive on a specified date, whether or not the contract also insures
the payment of money in any other event.
cost price:
(a) in relation to a car owned by a
person, means:
(i) where the car was
manufactured by the person—the amount for which the car could reasonably have
been expected to have been sold by the person by wholesale under an arm’s
length transaction at or about the time when the car was applied to the
person’s own use; or
(ii) where neither subparagraph (i)
nor (iii) applies, an amount equal to the sum of:
(A) the
expenditure incurred by the person (other than expenditure in respect of registration
or in respect of a tax on, or on a transfer of, registration) that is directly
attributable to the acquisition or delivery of the car or, if subsection 7(6)
applies in relation to the car, the leased car value of the car when the person
first took the car on hire; and
(B) the
amount of any additional expenditure incurred by the person for or in relation
to the fitting of non‑business accessories to the car at or about the
time when the car was acquired by the person, reduced by the amount of any
reimbursement of the whole or a part of that expenditure paid, at or about the
time when the expenditure was incurred, by a recipient of a car benefit in
relation to the car; or
(iii) where subparagraph (i)
does not apply and the person was entitled to privileges or exemptions in
relation to customs duty in respect of a transaction by which the person
acquired the car or by which the person arranged for the fitting of non‑business
accessories to the car at or about the time when the car was acquired by the
person, the amount that could reasonably have been expected to have been
applicable under subparagraph (ii) if the person had not been entitled to
those privileges to exemptions;
(b) in relation to a non‑business
accessory fitted to a car, means:
(i) where the accessory
was manufactured by the person who held the car at the time of the fitting—the
amount for which the accessory could reasonably have been expected to have been
sold under an arm’s length transaction by the person by wholesale at or about the
time when the accessory was applied to the person’s own use; and
(ii) where neither subparagraph (i)
nor (iii) applies—the expenditure incurred, by a person other than a recipient
of a car benefit in relation to the car, for or in relation to the fitting of
the accessory, reduced by the amount of any reimbursement of the whole or a
part of that expenditure paid at or about that time by a recipient of a car
benefit in relation to the car; and
(iii) where subparagraph (i)
does not apply and a person was entitled to privileges or exemptions in
relation to customs duty in respect of a transaction by which the person
acquired the accessory—the amount that could reasonably have been expected to
have been applicable under subparagraph (ii) if the person had not been
entitled to those privileges or exemptions; and
(c) in relation to the recipients
property in relation to a property fringe benefit—means the expenditure
incurred by the provider that is directly attributable to purchasing or
obtaining delivery of the property.
counselling includes the giving of advice or
information in a seminar.
current employee means a person who receives,
or is entitled to receive, salary or wages.
current employer means a person (including a
government body) who pays, or is liable to pay, salary or wages, and includes:
(a) in the case of a partnership—each
partner; and
(b) in the case of any other
unincorporated association or body of persons—its manager or other principal
officer.
current identical benefit, in relation to an
identical overall benefit in relation to a year of tax, means that identical
overall benefit insofar as it was provided during the year of tax.
customs duty means customs duty imposed under
a law of the Commonwealth or of a Territory.
daily balance, in relation to a loan, means
the balance of the loan at the end of a day.
daylight period, in relation to a day, means
so much of a period on that day as occurs:
(a) after 7 a.m. on that day; and
(b) before 7 p.m. on that day.
debt waiver benefit means a benefit referred
to in section 14.
debt waiver fringe benefit means a fringe
benefit that is a debt waiver benefit.
December quarter means a quarter ending on 31 December.
declaration date, in relation to an employer
in relation to a year of tax, means the date of lodgment of the return of the
fringe benefits taxable amount of the employer of the year of tax, or such
later date as the Commissioner allows.
deductible expenses, in relation to an
allowance paid to an employee, means expenses incurred by the employee in
respect of which a deduction is allowable to the employee under section 8‑1
of the Income Tax Assessment Act 1997 (ignoring Divisions 28, 32
and 900 of that Act).
deferred BAS payer has the same meaning as in
subsection 995‑1(1) in the Income Tax Assessment Act 1997.
Deputy Commissioner means a Deputy
Commissioner of Taxation.
disadvantaged person means:
(a) a person who is intellectually,
psychiatrically or physically handicapped; or
(b) a person who is in necessitous
circumstances.
disease has the meaning given by subsection
995‑1(1) of the Income Tax Assessment Act 1997.
Division 28 car expense means a car
expense as defined in section 28‑13 of the Income Tax Assessment
Act 1997, but does not include a car expense covered by section 28‑165
of that Act.
documentary evidence, in relation to an
expense incurred by a person, means a document that would constitute written
evidence of the expense obtained in a way described in Subdivision 900‑E
of the Income Tax Assessment Act 1997 if the expense were a work
expense, and Division 900 of that Act applied to the person.
domestic route means a route where the port
of embarkation and the port of disembarkation are both within Australia.
domestic services includes:
(a) child care;
(b) gardening;
(c) home renovations, repairs or
maintenance;
(d) house cleaning;
(e) nursing care; and
(f) preparation of meals.
dwelling means a unit of accommodation
constituted by, or contained in a building, being a unit that consists, in
whole or in substantial part, of residential accommodation.
economy air fare, in relation to a person
being carried on a scheduled passenger air service operated by a carrier over a
route, means:
(a) in a case where paragraph (b)
does not apply—the standard air fare (other than a preferential air fare)
charged by the carrier in respect of the scheduled air service; or
(b) in a case where the carrier
charges children, students or blind persons a concessional air fare in respect
of the air fare to which paragraph (a) applies and the person is eligible
for such a concessional air fare—the concessional air fare concerned;
being, in either case, an air fare in relation to which no
special booking conditions are attached.
educational institution means a school,
college or university.
elderly person means a person who has
attained the age of 60 years.
electronic signature has the meaning given by
subsection 995‑1(1) of the Income Tax Assessment Act 1997.
eligible car parking expense payment benefit
means an expense payment benefit where:
(a) the recipient is an employee or an
associate of an employee; and
(b) the recipients expenditure is in
respect of the provision of car parking facilities for a car on one or more
days; and
(c) the following conditions are
satisfied in relation to any of those days:
(i) on that day, the
employee has a primary place of employment;
(ii) on that day, the car
was parked for one or more daylight periods exceeding 4 hours in total at, or
in the vicinity of, that primary place of employment;
(iii) the whole or a part of
the recipients expenditure is in respect of the provision of the parking
facilities to which that parking relates;
(iv) on that day, the car
was used in connection with travel by the employee between the place of
residence of the employee and that primary place of employment;
(v) the provision of
parking facilities for the car during the period or periods is not taken, under
the regulations, to be excluded from this definition;
(vi) the day is on or after 1 July 1993.
eligible dining facility, in relation to an
employer, means:
(a) a canteen, dining room or similar
facility; or
(b) a café, restaurant or similar
facility;
that is located 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.
eligible family member means:
(a) in relation to an employee who is
required to live away from his or her usual place of residence during a period
in order to perform the duties of his or her employment:
(i) the employee; or
(ii) the spouse of the
employee, or a child of the employee, being a spouse or child, as the case may
be:
(A) who
lived with the employee during that period; and
(B) whose
usual place of residence during that period was the same as the usual place of
residence of the employee; and
(b) in relation to a living‑away‑from‑home
allowance fringe benefit in relation to an employee, means:
(i) the employee; or
(ii) the spouse of the
employee, or a child of the employee, being a spouse or child, as the case may
be:
(A) in respect
of whom the recipients allowance is paid;
(B) who
lived with the employee during the recipients allowance period; and
(C) whose
usual place of residence during that period was the same as the usual place of
residence of the employee.
eligible foreign remuneration has the same
meaning as in section 23AF of the Income Tax Assessment Act 1936.
eligible incidental travel expense payment benefit
means an expense payment fringe benefit where:
(a) either:
(i) the recipients
expenditure:
(A) is in
respect of travel by the recipient away from the recipient’s usual place of
residence undertaken in the course of performing the duties of his or her
employment, being expenditure in respect of accommodation, the purchase of food
or drink or otherwise incidental to the travel; and
(B) relates
solely to travel by the recipient in Australia; or
(ii) the recipients
expenditure:
(A) is in
respect of travel by the recipient away from the recipient’s usual place of
residence undertaken in the course of performing the duties of his or her
employment, being expenditure in respect of the purchase of food or drink or
otherwise incidental to the travel (except in respect of accommodation); and
(B) relates
solely or principally to travel by the recipient outside Australia; and
(b) the payment or reimbursement, as
the case may be, that constitutes the fringe benefit is in the nature of
compensation to the recipient for the expenses that the recipient might
reasonably be expected to have incurred in respect of the matters specified in sub-subparagraph (a)(i)(A)
or (a)(ii)(A), as the case requires.
eligible overtime meal expense payment benefit
means an expense payment fringe benefit where:
(a) the recipients expenditure is
incurred in respect of the purchase of food or drink in connection with
overtime worked by the recipient; and
(b) the payment or reimbursement, as
the case may be, that constitutes the fringe benefit is in the nature of
compensation to the recipient for the expenses that the recipient might
reasonably be expected to have incurred in respect of the purchase of food or
drink in connection with that overtime.
eligible pre‑commencement loan means a
loan made before 1 July 1986 at a rate of interest that:
(a) is specified in a document in
existence at the time when the loan was made; and
(b) cannot be varied.
eligible premises, in relation to
entertainment, a meal, or food or drink, provided in respect of the employment
of an employee of an employer, means:
(a) if the employer is a
company—premises of the employer or of a company that is related to the
employer; or
(b) in any other case—premises of the
employer;
and includes, in either case, a location at or adjacent to
a site at which the employee performs duties of that employment.
emergency means an emergency involving any of
the following matters:
(a) a natural disaster;
(b) a conflict involving an armed
force;
(c) a civil disturbance;
(d) an accident;
(e) a serious illness;
(f) any similar matter.
emergency assistance, in relation to a
person, means assistance granted to the person where:
(a) the person is, or is at immediate
risk of becoming, the victim of an emergency;
(b) the assistance is granted to the
person solely in order to provide immediate relief;
(c) the assistance is in respect of all
or any of the following matters:
(i) first aid or other
emergency health care;
(ii) emergency meals or
food supplies;
(iii) emergency clothing;
(iv) emergency transport;
(v) emergency
accommodation;
(vi) emergency use of
household goods;
(vii) temporary repairs;
(viii) any similar matter.
employee means:
(a) a current employee;
(b) a future employee; or
(c) a former employee.
employee credit loan benefit, in relation to
a year of tax, means a loan fringe benefit in relation to an employee in relation
to the year of tax where:
(a) the loan consists of the provision
of credit to the employee in respect of:
(i) property sold; or
(ii) other benefits
provided;
to the employee by the provider
of the fringe benefit; and
(b) if the employee had, on the last
day of the period during the year of tax when the employee was under an
obligation to repay the whole or any part of the loan, incurred interest in
respect of the loan in respect of that period, that interest would have been
exclusively incurred in gaining or producing salary or wages of the employee in
respect of the employment to which the fringe benefit relates.
employee share loan benefit, in relation to a
year of tax, means a loan fringe benefit in relation to an employee in relation
to an employer in relation to the year of tax where:
(a) the sole purpose of the making of
the loan is to enable the employee to acquire shares, or rights to acquire
shares, in a company, being:
(i) the employer; or
(ii) an associate of the
employer; and
(b) the shares or rights were
beneficially owned by the employee at all times during the period during the
year of tax when the employee was under an obligation to repay the whole or any
part of the loan.
employee’s share of the taxable value of a
fringe benefit has the meaning given by section 5F.
employer means:
(a) a current employer;
(b) a future employer; or
(c) a former employer;
but does not include:
(d) the Commonwealth; or
(e) an authority of the Commonwealth
that cannot, by a law of the Commonwealth, be made liable to taxation by the
Commonwealth.
employment, in relation to a person, means
the holding of any office or appointment, the performance of any functions or
duties, the engaging in of any work, or the doing of any acts or things that
results, will result or has resulted in the person being treated as an
employee.
entertainment has the meaning given by
section 32‑10 of the Income Tax Assessment Act 1997.
entertainment facility leasing expenses, for
a person, means expenses incurred by the person in hiring or leasing:
(a) a corporate box; or
(b) boats, or planes, for the purpose
of the provision of entertainment; or
(c) other premises, or facilities, for
the purpose of the provision of entertainment;
but does not include so much of any of such expenses that:
(d) is attributable to the provision
of food or drink; or
(e) is attributable to advertising and
is an allowable deduction for the person under the Income Tax Assessment Act
1936 or the Income Tax Assessment Act 1997.
entity has the meaning given by section 960‑100
of the Income Tax Assessment Act 1997.
excluded fringe benefit, in relation to an
employee, employer and year of tax, has the meaning given by subsection 5E(3).
exclusive employee airline transport benefit
means an airline transport fringe benefit where, if the recipient had incurred
expenditure in respect of the provision of the recipients transport, that
expenditure would have been exclusively incurred in gaining or producing salary
or wages of the recipient in respect of the employment to which the fringe
benefit relates.
exclusive employee expense payment benefit
means an expense payment fringe benefit where the recipients expenditure is
exclusively incurred in gaining or producing salary or wages of the recipient
in respect of the employment to which the fringe benefit relates and is not
expenditure in respect of interest.
exclusive employee property benefit means a
property fringe benefit where, if the recipient had incurred expenditure in
respect of the provision of the recipients property, that expenditure would
have been exclusively incurred in gaining or producing salary or wages of the
recipient in respect of the employment to which the fringe benefit relates.
exclusive employee residual benefit means a
residual fringe benefit where, if the recipient had incurred expenditure in
respect of the provision of the recipients benefit, that expenditure would have
been exclusively incurred in gaining or producing salary or wages of the
recipient in respect of the employment to which the fringe benefit relates.
exempt accommodation component, in relation
to a living‑away‑from‑home allowance fringe benefit in
relation to an employee of an employer, in relation to a year of tax, means:
(a) where 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 the recipients allowance period; and
(ii) the place at which the
employee actually resided during the recipients allowance period;
so much (if any) of the
recipients allowance as it would be concluded is in the nature of compensation
to the employee for additional expenses that might reasonably be expected to be
incurred by the employee in respect of the subsistence during the recipients
allowance period of a lease or licence in respect of a unit of accommodation
for the accommodation of eligible family members; or
(b) in any other case—nil.
exempt food component, in relation to a living‑away‑from‑home
allowance fringe benefit in relation to an employee of an employer, in relation
to a year of tax, means:
(a) where 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 the recipients allowance period; and
(ii) the place at which the
employee actually resided during the recipients allowance period;
whichever of the following is applicable:
(iii) where the food
component of the recipients allowance has been determined by allowing for the
whole or a part of the amount (which whole or part is in this definition
referred to as the deducted home consumption expenditure) of the
expenditure that might reasonably be expected to have been incurred by the
employee, in respect of the recipients allowance period, in respect of food or
drink for eligible family members if the eligible family members had resided at
their usual place of residence during the recipients allowance period:
(A) if the
deducted home consumption expenditure is not less than the sum of the statutory
food amounts in respect of eligible family members in respect of the recipients
allowance period—the food component of the recipients allowance; or
(B) in any
other case—the amount ascertained in accordance with the formula:
where:
A is the food
component of the recipients allowance;
B is the sum of the
statutory food amounts in respect of eligible family members in respect of the
recipients allowance period; and
C is the deducted
home consumption expenditure;
(iv) where subparagraph (iii)
does not apply—the food component of the recipients allowance reduced by the
sum of the statutory food amounts in respect of eligible family members in
respect of the recipients allowance period; or
(b) in any other case—nil.
expense payment benefit means a benefit
referred to in section 20.
expense payment fringe benefit means a fringe
benefit that is an expense payment benefit.
extended travel airline transport benefit
means an airline transport fringe benefit where:
(a) the recipients transport is over
an international route and involves the recipient being away from the
recipient’s usual place of residence for a continuous period including more
than 5 nights; or
(b) the following conditions are
satisfied:
(i) the recipients
transport is in respect of travel by the recipient within Australia that
involves the recipient being away from the recipient’s usual place of residence
for a continuous period including more than 5 nights;
(ii) the travel was not
undertaken exclusively in gaining or producing salary or wages of the recipient
in respect of the employment to which the fringe benefit relates.
extended travel expense payment benefit means
an expense payment fringe benefit where:
(a) the recipient’s expenditure is in
respect of travel outside Australia and involves the recipient being away from
the recipient’s usual place of residence for a continuous period including more
than 5 nights; or
(b) the following conditions are
satisfied:
(i) the recipients
expenditure is in respect of travel by the recipient within Australia that
involves the recipient being away from the recipient’s usual place of residence
for a continuous period including more than 5 nights;
(ii) the travel was not
undertaken exclusively in gaining or producing salary or wages of the recipient
in respect of the employment to which the fringe benefit relates;
but does not include a car expense payment benefit.
extended travel property benefit means a
property fringe benefit where:
(a) the recipients property is in
respect of travel outside Australia and involves the recipient being away from
the recipient’s usual place of residence for a continuous period including more
than 5 nights; or
(b) the following conditions are
satisfied:
(i) the recipients
property is provided in respect of travel by the recipient within Australia
that involves the recipient being away from the recipient’s usual place of
residence for a continuous period including more than 5 nights;
(ii) the travel was not
undertaken exclusively in gaining or producing salary or wages of the recipient
in respect of the employment to which the fringe benefit relates;
but does not include a car property benefit.
extended travel residual benefit means a
residual fringe benefit where:
(a) the recipients benefit is in
respect of travel outside Australia and involves the recipient being away from
the recipient’s usual place of residence for a continuous period including more
than 5 nights; or
(b) the following conditions are
satisfied:
(i) the recipients benefit
consists of, or is in respect of, travel by the recipient within Australia that
involves the recipient being away from the recipient’s usual place of residence
for a continuous period including more than 5 nights;
(ii) the travel was not
undertaken exclusively in gaining or producing salary or wages of the recipient
in respect of the employment to which the fringe benefit relates;
but does not include a car residual benefit.
external administrator has the same meaning
as in the Payment Systems and Netting Act 1998.
external expense payment fringe benefit means
an expense payment fringe benefit other than an in‑house expense payment
fringe benefit.
external non‑period residual fringe benefit
means a non‑period residual fringe benefit other than an in‑house
residual fringe benefit.
external period residual fringe benefit means
a period residual fringe benefit other than an in‑house residual fringe
benefit.
external property fringe benefit, in relation
to an employer, means a property fringe benefit in relation to the employer
other than an in‑house property fringe benefit.
family member, in relation to a benefit
provided to an employee, or to an associate of an employee, in respect of the
employment of the employee, means:
(a) the employee;
(b) the spouse of the employee; or
(c) a child of the employee.
FBT year means a year beginning on 1 April.
fitting, in relation to a non‑business
accessory, includes the acquisition of the accessory.
food component, in relation to the recipients
allowance in relation to a living‑away‑from‑home allowance
fringe benefit in relation to an employee of an employer, means so much (if
any) of the recipients allowance as it would be concluded is in the nature of
compensation for expenses that the employee might reasonably be expected to
incur, in respect of the recipients allowance period, in respect of food or
drink for eligible family members.
foreign earnings has the same meaning as in
section 23AG of the Income Tax Assessment Act 1936.
former employee means a person who has been a
current employee.
former employer means a person who has been a
current employer.
fringe benefit, in relation to an employee,
in relation to the employer of the employee, in relation to a year of tax,
means a benefit:
(a) provided at any time during the
year of tax; or
(b) provided in respect of the year of
tax;
being a benefit provided to the employee or to an
associate of the employee by:
(c) the employer; or
(d) an associate of the employer; or
(e) a person (in this paragraph
referred to as the arranger) other than the employer or an
associate of the employer under an arrangement covered by paragraph (a) of
the definition of arrangement between:
(i) the employer or an
associate of the employer; and
(ii) the arranger or
another person; or
(ea) a person other than the employer
or an associate of the employer, if the employer or an associate of the
employer:
(i) participates in or
facilitates the provision or receipt of the benefit; or
(ii) participates in,
facilitates or promotes a scheme or plan involving the provision of the
benefit;
and the employer or associate
knows, or ought reasonably to know, that the employer or associate is doing so;
in respect of the employment of the employee, but does not
include:
(f) a payment of salary or wages or a
payment that would be salary or wages if salary or wages included exempt income
for the purposes of the Income Tax Assessment Act 1936; or
(g) a benefit that is an exempt
benefit in relation to the year of tax; or
(h) a benefit constituted by the
acquisition by the employee, or by a relative of the employee, of a share in a
company, or of a right to acquire a share in a company, under a scheme for the
acquisition of shares by employees, where section 26AAC of the Income
Tax Assessment Act 1936 applies in relation to the acquisition; or
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 paragraph (h).
(ha) a benefit constituted by the
acquisition by a person of a share or right to acquire a share under an
employee share scheme (within the meaning of Division 13A of Part III
of the Income Tax Assessment Act 1936); or
(haa) a benefit constituted by the
acquisition by a person under an employee share scheme (within the meaning of
that Division) of a stapled security or right to acquire a stapled security
that is treated as a qualifying share or qualifying right for the purposes of
that Division because of Subdivision DB of that Division; or
(hb) a benefit constituted by the
acquisition by a trust of money or other property where the sole activities of
the trust are obtaining shares, or rights to acquire shares, in a company, or a
holding company (within the meaning of the Corporations Act 2001) of the
first‑mentioned company, and providing those shares or rights:
(i) to employees, or
associates of employees, of the first‑mentioned company; or
(ii) to persons who are
engaged in foreign service (within the meaning of section 139GBA of the Income
Tax Assessment Act 1936) for the first‑mentioned company, or
associates of those persons; or
(hc) a benefit constituted by the
acquisition by a trust of money or other property where the sole activities of
the trust are obtaining stapled securities or rights to acquire stapled
securities that are treated as qualifying shares or qualifying rights for the
purposes of Division 13A of Part III of the Income Tax Assessment
Act 1936 because of Subdivision DB of that Division, and providing those
stapled securities or rights:
(i) to employees of a
stapled entity (within the meaning of that Division) for the stapled
securities, or to associates of those employees; or
(ii) to persons who are
engaged in foreign service (within the meaning of section 139GBA of the Income
Tax Assessment Act 1936) for a stapled entity for the stapled securities,
or associates of those persons; or
(iii) for a case where, if
all the stapled entities for any of the stapled securities were part of one
company, that company would be a holding company (within the meaning of the Corporations
Act 2001) of another company—to employees, or associates of employees of
that other company; or
(iv) for a case where, if
all the stapled entities for any of the stapled securities were part of one
company, that company would be a holding company (within the meaning of the Corporations
Act 2001) of another company—to persons who are engaged in foreign service
(within the meaning of section 139GBA of the Income Tax Assessment Act
1936) for that other company, or associates of those persons; or
(hd) a benefit:
(i) constituted by the
making of a contribution to an FHSA (within the meaning of the First Home
Saver Accounts Act 2008); or
(ii) that is an expense
payment benefit in relation to a contribution to an FHSA (within the meaning of
the First Home Saver Accounts Act 2008); or
(j) a benefit constituted by:
(i) the making of a contribution
to a superannuation fund (as defined by the Income Tax Assessment Act 1997)
that the person making the contribution had reasonable grounds for believing
was a complying superannuation fund (as defined by that Act) for the purpose of
making provision for superannuation benefits for the employee (whether or not
the benefits are payable to a dependant of the employee if the employee dies
before or after becoming entitled to receive the benefits); or
(ii) the making of a contribution
to a foreign superannuation fund (within the meaning of the Income Tax
Assessment Act 1997) where:
(A) the
contribution is for the purpose of making provision for superannuation benefits
for the employee (whether or not the benefits are payable to a dependant of the
employee if the employee dies before or after becoming entitled to receive the
benefits); and
(B) the
employee is a temporary resident (within the meaning of the Income Tax
Assessment Act 1997) when the contribution is made; or
(iii) the making of a
payment of money to an RSA (within the meaning of the Retirement Savings
Accounts Act 1997) that is held by the employee; or
(k) a superannuation benefit (within
the meaning of the Income Tax Assessment Act 1997); or
(l) a payment covered by
section 26AF or 26AFA of the Income Tax Assessment Act 1936; or
(la) an early retirement scheme
payment (within the meaning of the Income Tax Assessment Act 1997); or
(lb) a genuine redundancy payment
(within the meaning of the Income Tax Assessment Act 1997); or
(lc) an employment termination payment
(within the meaning of the Income Tax Assessment Act 1997); or
(ld) a payment that would be an
employment termination payment (within the meaning of the Income Tax
Assessment Act 1997) apart from paragraph 82‑130(1)(b) of that Act;
or
(le) any of the following payments, if
they would be employment termination payments (within the meaning of the Income
Tax Assessment Act 1997) apart from paragraph 82‑130(1)(b) and
section 82‑135 of that Act:
(i) an unused annual leave
payment (within the meaning of that Act);
(ii) an unused long service
leave payment (within the meaning of that Act);
(iii) a payment covered by
Subdivision 83‑D (Foreign termination payments) of that Act;
(iv) a payment covered by
paragraph 82‑135(g) of that Act;
(v) a payment of an
annuity, or a supplement, covered by section 27H of the Income Tax
Assessment Act 1936; or
(m) consideration of a capital nature
for, or in respect of:
(i) a legally enforceable
contract in restraint of trade by a person; or
(ii) personal injury to a
person; or
(ma) a payment, within the meaning of
subsection 104‑255(7) of the Income Tax Assessment Act 1997, of a
carried interest of a kind referred to in subsection 104‑255(1) of that
Act; or
(mb) a grant or acquisition of such a
carried interest, or of an entitlement to such a payment; or
(n) a payment of an amount that, under
any provision of the Income Tax Assessment Act 1936, is deemed to be a
dividend paid to the recipient; or
(p) a payment made, or liability
incurred, to a person to the extent that the payment or liability is, by virtue
of subsection 65(1A) of the Income Tax Assessment Act 1936, deemed not
be income of the person for the purposes of that Act; or
(q) a benefit constituted by the
conferral of a present entitlement to, or a distribution of, income or capital
to the extent that subsection 271‑105(1) of Schedule 2F to the Income
Tax Assessment Act 1936 would prevent the inclusion of the amount or value
of the income or capital in assessable income, assuming that it would otherwise
be so included; or
(r) anything done in relation to a
shareholder in a private company (as those terms are defined in section 6
of the Income Tax Assessment Act 1936), or an associate of such a
shareholder, that causes (or will cause) the private company to be taken under
Division 7A of Part III of that Act to pay the shareholder or
associate a dividend; or
(s) a loan (within the meaning of
section 109D of the Income Tax Assessment Act 1936), if:
(i) a dividend is not
taken to be paid under that section in relation to the loan, but would be if
section 109N of that Act were disregarded; or
(ii) an amount is not
included, as if it were a dividend, in the assessable income of an entity under
section 109XB of that Act in relation to the loan, but would be if
section 109N of that Act were disregarded.
fringe benefits tax or tax
means tax imposed by the Fringe Benefits Tax Act 1986.
fringe benefits taxable amount has the
meaning given by section 5B.
future employee means a person who will
become a current employee.
future employer means a person who will
become a current employer.
general interest charge means the charge
worked out under Part IIA of the Taxation Administration Act 1953.
government body means the Commonwealth, a
State, a Territory or an authority of the Commonwealth or of a State or
Territory.
GST‑creditable benefit has the meaning
given by section 149A.
health care means any examination, test or
form of care (whether therapeutic, preventative or rehabilitative) that is
related to the physiological or psychological health of a person and, without
limiting the generality of the foregoing, includes:
(a) the supply, maintenance or repair
of:
(i) an artificial limb or
other artificial substitute; or
(ii) a medical, surgical or
similar aid or appliance used by a person; and
(b) the supply of drugs or other
property in connection with such an examination, test or form of care.
health promotion charity means a charitable
institution whose principal activity is to promote the prevention or the
control of diseases in human beings.
housing benefit means a benefit referred to
in section 25.
housing fringe benefit means a fringe benefit
that is a housing benefit.
housing right, in relation to a person, means
a lease or licence granted to the person to occupy or use a unit of
accommodation, insofar as that lease or licence subsists at a time when the
unit of accommodation is the person’s usual place of residence.
identical benefit, in relation to the
recipients benefit in relation to a residual fringe benefit, means another benefit
that is the same in all respects, except for differences (if any) that are
minimal or insignificant and do not affect the value of the other benefit.
identical overall benefit, in relation to the
recipients overall benefit in relation to a period residual fringe benefit,
means a benefit that is the same in all respects as the recipients overall
benefit (except for any differences that are minimal or insignificant and do
not affect the value of the benefit).
identical property, in relation to the recipients
property in relation to a property fringe benefit, means other property that is
the same in all respects, including physical characteristics, quality and
reputation, except for differences (if any) that are minimal or insignificant
and do not affect the value of the property.
incorporated company means a company being a
body corporate.
individual fringe benefits amount for a year
of tax in respect of the employment of an employee by an employer has the
meaning given by section 5E.
individual quasi‑fringe benefits amount
for a year of tax in respect of the employment of an employee by an employer
has the meaning given by subsection 135Q(3).
industrial instrument means a law of the
Commonwealth or of a State or Territory or an award, order, determination or
industrial agreement in force under any such law.
in‑house expense payment fringe benefit
means:
(a) an in‑house property expense
payment fringe benefit; or
(b) an in‑house residual expense
payment fringe benefit.
in‑house fringe benefit means:
(a) an in‑house expense payment
fringe benefit;
(b) an in‑house property fringe
benefit; or
(c) an in‑house residual fringe
benefit.
in‑house health care facility, in
relation to an employer, means a clinic, surgery, first‑aid station or
similar facility that is:
(a) operated wholly or principally for
providing health care in respect of compensable work‑related trauma
suffered:
(i) in any case—by
employees of the employer; or
(ii) if the employer is a
company—by employees of the employer or by employees of a company that is
related to the employer; and
(b) located:
(i) 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
(ii) 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 (other than members of
the staff of the facility) perform the duties of their employment.
in‑house non‑period residual fringe
benefit means an in‑house residual fringe benefit that is not
provided during a period.
in‑house period residual fringe benefit
means an in‑house residual fringe benefit that is provided during a
period.
in‑house property expense payment fringe
benefit, in relation to an employer, means an expense payment fringe
benefit in relation to the employer where:
(a) the recipients expenditure was
incurred in respect of the provision of tangible property by a person (in this
definition called the property provider);
(b) the provision of the property is a
property benefit;
(c) if the property provider is the
employer or an associate of the employer—at or about the provision time, the
property provider carried on a business that consisted of or included the
provision of identical or similar property principally to outsiders;
(d) if the property provider is not
the employer or an associate of the employer:
(i) the property was
acquired by the property provider from the employer or an associate of the
employer (which employer or associate is in this definition called the seller);
and
(ii) at or about the
provision time, both the property provider and the seller carried on a business
that consisted of or included the provision of identical or similar property
principally to outsiders; and
(e) 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.
in‑house property fringe benefit, in
relation to an employer, means a property fringe benefit in relation to the
employer in respect of tangible property:
(a) where both of the following
conditions are satisfied:
(i) the provider is the
employer or an associate of the employer; and
(ii) at or about the
provision time, the provider carried on a business that consisted of or
included the provision of identical or similar property principally to
outsiders; or
(b) where all of the following
conditions are satisfied:
(i) the provider is not
the employer or an associate of the employer;
(ii) the property was
acquired by the provider from the employer or an associate of the employer
(which employer or associate is in this definition called the seller);
and
(iii) at or about the
provision time, both the provider and the seller carried on a business that
consisted of or included the provision of identical or similar property
principally to outsiders.
in‑house residual expense payment fringe
benefit, in relation to an employer, means an expense payment fringe
benefit in relation to the employer where:
(a) the recipients expenditure was
incurred in respect of the provision of a residual benefit (other than a
benefit provided under a contract of investment insurance) by a person (in this
definition called the residual benefit provider);
(b) if the residual benefit provider
is the employer or an associate of the employer—at or about the time that, if
the residual benefit had been a residual fringe benefit, would have been the
comparison time, the residual benefit provider carried on a business that
consisted of or included the provision of identical or similar benefits
principally to outsiders;
(c) if the residual benefit provider
is not the employer or an associate of the employer:
(i) the residual benefit
provider purchased the benefit from the employer or an associate of the
employer (which employer or associate is in this definition called the seller);
and
(ii) at or about the time
that, if the residual benefit had been a residual fringe benefit, would have
been the comparison time, both the residual benefit provider and the seller
carried on a business that consisted of or included the provision of identical
or similar benefits principally to outsiders; and
(d) 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.
in‑house residual fringe benefit, in
relation to an employer, means a residual fringe benefit in relation to the
employer:
(a) where both of the following conditions
are satisfied:
(i) the provider is the
employer or an associate of the employer;
(ii) at or about the
comparison time, the provider carried on a business that consisted of or
included the provision of identical or similar benefits principally to
outsiders; or
(b) where all of the following
conditions are satisfied:
(i) the provider is not
the employer or an associate of the employer;
(ii) the provider purchased
the benefit from the employer or an associate of the employer (which employer
or associate is in this definition called the seller);
(iii) at or about the
comparison time, both the provider and the seller carried on a business that
consisted of or included the provision of identical or similar property
principally to outsiders;
but does not include a benefit provided under a contract
of investment insurance.
injury means any physical or mental injury.
in respect of, in relation to the employment
of an employee, includes by reason of, by virtue of, or for or in relation
directly or indirectly to, that employment.
intangible property means:
(a) real property;
(b) a chose in action; and
(c) any other kind of property other
than tangible property;
but does not include:
(d) a right arising under a contract
of insurance; or
(e) a lease or licence in respect of
real property or tangible property.
interest, in relation to a loan, includes a
payment in the nature of interest.
international aircrew expense payment benefit
means an expense payment fringe benefit where the recipients expenditure:
(a) is in respect of travel by the
recipient in the course of performing the duties of the recipient’s employment
as the pilot, flight engineer, flight attendant, or other member of the crew,
of an aircraft, being expenditure in respect of accommodation, the purchase of
food or drink or otherwise incidental to the travel; and
(b) relates to travel by the recipient
outside Australia.
international aircrew property benefit means
a property fringe benefit where the recipients property:
(a) is in respect of travel by the
recipient in the course of performing the duties of the recipient’s employment
as the pilot, flight engineer, flight attendant or other member of the crew, of
an aircraft, being property that is:
(i) food or drink;
(ii) in respect of accommodation;
or
(iii) otherwise incidental
to the travel; and
(b) relates to travel by the recipient
outside Australia.
international aircrew residual benefit means
a residual fringe benefit where the recipients benefit:
(a) is in respect of travel by the
recipient in the course of performing the duties of the recipient’s employment
as the pilot, flight engineer, flight attendant or other member of the crew of
an aircraft, being a benefit that is in respect of accommodation or a benefit
that is otherwise incidental to the travel; and
(b) relates to travel by the recipient
outside Australia.
international route means a route that is not
a domestic route.
law, in relation to a foreign country, means
a law of that country, or of any part of, or place in, that country.
lease includes sub‑lease.
leased means let on hire (including a letting
on hire that is described in the relevant agreement as a lease) under an
agreement other than a hire‑purchase agreement.
leased car value, in relation to a car held
but not owned by a person at a particular time, means:
(a) in a case to which paragraph (b)
does not apply—the amount that the person could reasonably be expected to have
been required to pay to purchase the car from the owner at that time under an
arm’s length transaction; or
(b) if the person commenced to lease
the car at that time from a lessor who purchased the car at or about that
time—the cost price of the car to the lessor.
liability to the Commonwealth means a
liability to the Commonwealth arising under, or by virtue of, an Act of which
the Commissioner has the general administration.
liquidator, in relation to a company, means a
person who, whether or not appointed as liquidator, is required by law to carry
out the winding up of the company.
living‑away‑from‑home allowance
benefit means a benefit referred to in section 30.
living‑away‑from‑home allowance
fringe benefit means a fringe benefit that is living‑away‑from‑home
allowance benefit.
living‑away‑from‑home food fringe
benefit means:
(a) an expense payment fringe benefit
provided in respect of the employment of an employee where:
(i) the recipients
expenditure was incurred in respect of food or drink;
(ii) the food or drink was
not for consumption while the employee was undertaking travel in the course of
performing the duties of that employment; and
(iii) the food or drink was
for consumption by eligible family members at a time when the employee was
required to live away from his or her usual place of residence in order to
perform the duties of that employment; or
(b) a property fringe benefit provided
in respect of the employment of an employee where:
(i) the recipients
property is food or drink;
(ii) the food or drink was
not for consumption while the employee was undertaking travel in the course of
performing the duties of that employment; and
(iii) the food or drink was
for consumption by eligible family members at a time when the employee was
required to live away from his or her usual place of residence in order to
perform the duties of that employment.
loan includes:
(a) an advance of money;
(b) the provision of credit or any
other form of financial accommodation;
(c) the payment of an amount for, on
account of, on behalf of or at the request of a person where there is an
obligation (whether expressed or implied) to repay the amount; and
(d) a transaction (whatever its terms
or form) which in substance effects a loan of money.
loan benefit means a benefit referred to in
subsection 16(1).
loan fringe benefit means a fringe benefit
that is a loan benefit.
log book records, in relation to a car held
by a person (in this definition called the holder), in relation
to a period, means a daily log book or similar document in which, in respect of
each business journey:
(a) that is undertaken in the car
during the period; and
(b) that the holder, or a person
acting on behalf of the holder, chooses to record in the document for the
purpose of demonstrating the pattern of use of the car during the period;
an entry setting out particulars of:
(c) the date on which the journey
began and the date on which it ended; and
(d) the respective odometer readings
of the car at the beginning and end of the journey; and
(e) the number of kilometres travelled
by the car in the course of the journey; and
(f) the purpose or purposes of the
journey;
is made in the English language at, or as soon as
reasonably practicable after, the end of the journey.
long service award benefit, in relation to an
employee of an employer, means a benefit provided to the employee, in respect
of the employment of the employee, in, or in respect of, a year of tax solely
by way of an award in recognition of the existence of a recognised long service
period in relation to the employee that is not less than 15 years, but does not
include:
(a) a payment of salary or wages or a
payment that would be salary or wages if salary or wages included exempt income
for the purposes of the Income Tax Assessment Act 1936;
(b) a benefit provided under a non‑arm’s
length arrangement; or
(c) a benefit provided under an
arrangement where, having regard to:
(i) the form and substance
of the arrangement;
(ii) the matters taken into
account in determining the period of recognised long service leave recognised
by the award; and
(iii) the eligibility of other
employees of the employer to be awarded benefits in recognition of the
existence of recognised long service periods;
it would be concluded that the
arrangement, or any part of the arrangement, was entered into by any of the
parties to the arrangement for the sole or dominant purpose of enabling the
employer to obtain the benefit of the application of section 58Q.
long service leave
means:
(a) long service leave;
(b) long leave;
(c) furlough;
(d) extended leave; or
(e) leave of a similar kind (however
described).
meal entertainment benefit means a
benefit that is a meal entertainment benefit because of section 37AC.
meal entertainment fringe benefit means
a fringe benefit that is a meal entertainment benefit.
meal entitlement day, in relation to a meal
provided in a year of tax, in respect of the employment of an employee, to a
person (in this definition referred to as the recipient) being
the employee or an associate of the employee, means a day in respect of which:
(a) in respect of the employment of
the employee, the recipient was entitled to be provided (whether without charge
or otherwise) with residential accommodation; and
(b) either of the following
subparagraphs applies:
(i) the recipient was
entitled, pursuant to the provisions of an industrial instrument in respect of
the employment of the employee, to be provided (whether without charge or
otherwise) with not fewer than 2 meals on that day;
(ii) the following
conditions are satisfied:
(A) under an
arrangement that was in force during the whole or a part of the year of tax
(which whole or part is in this subparagraph referred to as the arrangement
period) in respect of the employment of the employee, the recipient was
entitled to be provided (whether without charge or otherwise) with not fewer
than 2 meals on that day;
(B) during
the arrangement period, the recipient was also entitled under the arrangement
to be provided (whether without charge or otherwise) with not fewer than 2
meals on each day during the arrangement period that was a working day in
relation to the employee;
(C) pursuant
to the arrangement, the recipient was ordinarily provided (whether without
charge or otherwise) with not fewer than 2 meals on the days referred to in sub-subparagraph (B).
migrant language
training, in relation to a person, means a course attended by the
person where:
(a) at the time of attending the
course, the person is, or intends to become, an immigrant to Australia; and
(b) the course is designed to:
(i) teach the English
language; or
(ii) impart an
understanding of the rights and duties of an Australian citizen and of the way
of living of the Australian people;
to persons whose first language
is not English.
motor vehicle has the meaning given by
subsection 995‑1(1) of the Income Tax Assessment Act 1997.
natural person does not include a natural
person in the capacity of trustee.
non‑arm’s length arrangement means an
arrangement other than an arm’s length arrangement.
non‑business accessory, in relation to
a car, means an accessory fitted to the car, whether at the factory where the
car was assembled or at some other place, other than an accessory required to
meet the special needs of any business operations in relation to which the car
is used.
non‑deductible entertainment expenditure
means a loss or outgoing to the extent to which:
(a) section 32‑5 of the Income
Tax Assessment Act 1997 applies to it, or would apply if it were incurred
in producing assessable income; and
(b) apart from that section, it would
be deductible under section 8‑1 of that Act, or would be if it were
incurred in producing assessable income;
(on the assumption that section 32‑20 of the Income
Tax Assessment Act 1997 had not been enacted).
non‑deductible exempt entertainment expenditure
means non‑deductible entertainment expenditure to the extent to which it
is not incurred in producing assessable income.
non‑profit company means a company that
is not carried on for the purposes of profit or gain to its individual members
and is, by the terms of the company’s constituent document, prohibited from
making any distribution, whether in money, property or otherwise, to its
members.
notional amount of interest, in relation to a
loan in relation to a year of tax, means the amount of interest that would have
accrued on the loan in respect of the year of tax if the interest were
calculated on the daily balance of the loan at:
(a) where the loan is an eligible pre‑commencement
loan:
(i) the statutory interest
rate in relation to the time when the loan was made; or
(ii) the statutory interest
rate in relation to the year of tax;
whichever is the less;
(b) where the loan is not an eligible
pre‑commencement loan, was made before 3 April 1986 and is a housing loan relating to a dwelling:
(i) the statutory interest
rate in relation to the year of tax; or
(ii) 13.5% per annum;
whichever is the less; or
(c) in any other case—the statutory
interest rate in relation to the year of tax.
notional taxable value, in relation to a
benefit provided in, or in respect of, a year of tax in respect of the
employment of an employee of an employer, means the amount that, if it were
assumed that:
(a) in the case of a car benefit—the
car benefit was a residual benefit; and
(b) in all cases—the benefit was a
fringe benefit in relation to the employer in relation to the year of tax;
would be the taxable value of the fringe benefit in
relation to the year of tax.
notional tax amount has the meaning given by
section 110.
notional value, in relation to the provision
of property or another benefit to a person, means the amount that the person
could reasonably be expected to have been required to pay to obtain the
property or other benefit from the provider under an arm’s length transaction.
obligation, in relation to the payment or
repayment of an amount, includes an obligation that is not enforceable by legal
proceedings.
odometer records, in relation to a car, in
relation to a period, means a document in which particulars of:
(a) the odometer reading of the car at
the commencement of the period; and
(b) the odometer reading of the car at
the end of the period; and
(c) if paragraph 162K(2)(b) or
162L(2)(b) applies with effect from a particular date—the odometer readings of
both the replacement car and of the original car referred to in that paragraph,
as at that date;
are entered in the English language, at, or as soon as
reasonably practicable after, the respective times to which those odometer
readings relate.
offence against this Act includes an offence
against:
(a) the Crimes Act 1914; or
(b) the Taxation Administration Act
1953;
relating to this Act.
officer means a person appointed or engaged
under the Public Service Act 1999.
once‑only deduction, in relation to
expenditure, means a deduction in a year of income in respect of a percentage
of the expenditure where no deduction is allowable in respect of a percentage
of the expenditure in any other year of income.
original assesment date means:
(a) in relation to an assessment other
than an amended assessment—the day on which the assessment was made; and
(b) in relation to an assessment being
the first or a subsequent amendment of an assessment to which paragraph (a)
applies—the day on which the original assessment was made.
outsider, in relation to the employment of an
employee of an employer, means a person not being:
(a) an employee of the employer;
(b) an employee of an associate of the
employer;
(c) an employee of a person (in this
definition referred to as the provider) other than the employer
or an associate of the employer who provides benefits to, or to associates of,
employees of the employer or an associate of the employer under an arrangement
between:
(i) the employer or an
associate of the employer; and
(ii) the provider or
another person; or
(d) an associate of an employee to whom
any of the preceding paragraphs apply.
parent has the meaning given by subsection
995‑1(1) of the Income Tax Assessment Act 1997.
period residual fringe benefit means a
residual fringe benefit that is provided during a period.
person
includes:
(a) a body politic;
(b) a body corporate;
(c) a partnership;
(d) any other unincorporated
association or body of persons; and
(e) a person in the capacity of
trustee.
personal services includes services as a
personal secretary or chauffeur.
place of residence, in relation to a person,
means:
(a) a place at which the person
resides; or
(b) a place at which the person has
sleeping accommodation;
whether on a permanent or temporary basis and whether or
not on a shared basis.
preferential air fare means an air fare
charged by a person in respect of travel over a route, being an air fare the
payment of which entitles the person travelling to benefits to which some of
the other passengers on the same flight are not entitled.
primary place of employment, in relation to
an employee in relation to a day, means business premises, or associated
premises, of the employer of the employee, or of an associate of the employer,
where:
(a) if the employee performed duties
of his or her employment on that day—on that day; or
(b) in any other case—on the most
recent day before that day on which the employee performed duties of his or her
employment;
those premises are or were:
(c) the sole or primary place of
employment of the employee; or
(d) otherwise the sole or primary place
from which or at which the employee performs duties of his or her employment.
private use, in relation to a motor vehicle,
in relation to an employee or an associate of an employee, means any use of the
motor vehicle by the employee or associate, as the case may be, that is not
exclusively in the course of producing assessable income of the employee.
producing assessable
income includes:
(a) gaining assessable income; or
(b) carrying on a business for the
purpose of gaining or producing assessable income.
property means:
(a) intangible property; and
(b) tangible property.
property benefit means a benefit referred to
in section 40, but does not include a benefit that is a benefit by virtue
of a provision of Subdivision A of Divisions 2 to 10 (inclusive) of Part III.
property fringe benefit means a fringe
benefit that is a property benefit.
provide:
(a) in relation to a benefit—includes
allow, confer, give, grant or perform; and
(b) in relation to property—means
dispose of (whether by sale, gift, declaration of trust or otherwise):
(i) if the property is a
beneficial interest in property but does not include legal ownership—the
beneficial interest; or
(ii) in any other case—the
legal ownership of the property.
provider, in relation to a benefit, means the
person who provides the benefit.
providers portion, in relation to an expense
payment fringe benefit, means whichever of the following amounts is applicable:
(a) the amount of the payment referred
to in paragraph 20(a) reduced by the amount of the recipients contribution;
(b) the amount of the reimbursement
referred to in
paragraph 20(b).
providers published air fare, in relation to
an airline transport fringe benefit provided over a route in a year of tax,
means:
(a) where paragraph (b) does not
apply:
(i) a qualifying air fare
charged by the provider in respect of transport over that route; or
(ii) one half of a
qualifying air fare charged by the provider in respect of return transport over
that route;
during the period of 12 months
ending at the end of the year of tax; or
(b) in a case where the provider
charges children, students or blind persons a concessional air fare in respect
of an air fare to which paragraph (a) applies and the recipient is
eligible for such a concessional air fare—the concessional air fare concerned.
provision time, in relation to the provision
of property, means the time when the property is provided.
qualifying air fare means an air fare charged
by the provider of an airline transport fringe benefit in respect of transport
over a route, being:
(a) where the provider has premises in
Australia at which air tickets issued by the provider are sold—an air fare
that was:
(i) offered as being
available to all members of the public by the provider at those premises; and
(ii) specified in a
publication authorised by the provider and available at those premises; or
(b) where the provider does not have
premises as mentioned in paragraph (a) but an agent of the provider has
premises in Australia at which air tickets issued by the provider are sold—an
air fare that was:
(i) offered as being
available to all members of the public by the agent at those premises; and
(ii) specified in a tariff
manual authorised by the provider and available at those premises;
and being, in either case, an air fare that was not
subject to special conditions requiring a booking to be made in respect of more
than 1 person.
quarter means a period of 3 calendar months
commencing on 1 January, 1 April, 1 July or 1 October.
recipient, in relation to a benefit, means
the person to whom the benefit is provided.
recipients allowance, in relation to a living‑away‑from‑home
allowance fringe benefit, means the allowance, or the part of the allowance,
the payment of which constitutes the fringe benefit.
recipients allowance period, in relation to a
living‑away‑from‑home allowance fringe benefit, means the
period to which the recipients allowance relates.
recipients benefit, in relation to a residual
benefit, means the benefit to which the residual benefit relates.
recipients contribution:
(a) in relation to an airline
transport fringe benefit, a car parking fringe benefit, a property fringe
benefit, a residual fringe benefit or a board fringe benefit, being a fringe
benefit provided in respect of the employment of an employee of an employer,
means the amount of any consideration paid to the provider or to the employer
by the recipient or by the employee in respect of the provision of the
recipients transport, the recipients parking, the recipients property, the recipients
benefit or the recipients meal, as the case may be, reduced by the amount of
any reimbursement paid to the recipient in respect of that consideration; and
(b) in relation to an expense payment
fringe benefit provided in respect of the employment of an employee of an
employer, being a fringe benefit to which paragraph 20(a) applies—the amount
paid to the provider or to the employer by the recipient or by the employee in
respect of the provision of the fringe benefit.
recipients current benefit, in relation to a
period residual fringe benefit in relation to a year of tax, means the benefit
to which the fringe benefit relates, insofar as that benefit was provided
during the year of tax.
recipients current housing right, in relation
to a housing fringe benefit in relation to a year of tax, means the housing
right to which the fringe benefit relates, insofar as that housing right
subsisted during the year of tax.
recipients expenditure, in relation to an
expense payment benefit, means the expenditure incurred by the recipient as
mentioned in paragraph 20(a) or (b), as the case requires.
recipients meal, in relation to a board
fringe benefit, means the meal to which the fringe benefit relates.
recipients overall benefit, in relation to a
period residual fringe benefit in relation to a year of tax, means the benefit
to which the fringe benefit relates, including that benefit as it was or will
be provided at any time outside the year of tax.
recipients overall housing right, in relation
to a housing fringe benefit in relation to a year of tax, means the housing
right to which the fringe benefit relates, including that housing right as it
subsisted, or will subsist, outside the year of tax.
recipients parking, in relation to a car
parking fringe benefit, means the provision of the parking facilities to which
the benefit relates.
recipients portion, in relation to an expense
payment fringe benefit, means the recipients expenditure reduced by whichever
of the following amounts is applicable:
(a) the amount of the payment referred
to in paragraph 20(a) reduced by the amount of the recipients contribution;
(b) the amount of the reimbursement
referred to in paragraph 20(b).
recipients property, in relation to a
property benefit, means the property to which the benefit relates.
recipients rent, in relation to a housing
fringe benefit in relation to an employee of an employer in relation to a year
of tax, means the amount of any rent or other consideration paid to the
provider or to the employer by the recipient or the employee in respect of the
subsistence, during the year of tax, of the recipients housing right reduced by
the amount of any reimbursement paid to the recipient in respect of that
consideration.
recipients transport, in relation to an
airline transport fringe benefit, means the transport and incidental services
to which the benefit relates.
recipients unit of accommodation, in relation
to a housing fringe benefit, means the unit of accommodation to which the
fringe benefit relates.
recognised long service period, in relation
to an employee of an employer, means:
(a) if the employee has an entitlement
to long service leave under:
(i) a law of the
Commonwealth, a State, a Territory or a foreign country;
(ii) an award, order,
determination or industrial agreement in force under any such law;
(iii) a scheme or
arrangement by reason of the existence and nature of which the employer has
secured an exemption from obligations to comply with any such law relating to
long service leave;
(iv) a contract of employment;
or
(v) the terms of
appointment to an office;
the period by reference to which
that long service leave is determined;
(b) if:
(i) long service leave may
be made available to the employee as a privilege; and
(ii) the availability of
that leave is determined by reference to matters similar to matters by
reference to which an entitlement of the kind referred to in paragraph (a)
is ordinarily determined;
the period by reference to which
that long service leave is determined; or
(c) in any other case:
(i) the period for which
the employee has been employed by the employer; or
(ii) such longer period of
employment (whether with that employer or any other employer) as might
reasonably be expected to be taken into account in determining long service leave
if the employee had an entitlement to long service leave.
recreation includes:
(a) amusement;
(b) sport or similar leisure‑time
pursuits; and
(c) recreation or amusement provided
on, or by means of, a vehicle, ship, vessel or aircraft.
recreational facility means a facility for
recreation, but does not include a facility for accommodation or a facility for
drinking or dining.
reducible fringe benefit has the meaning
given by section 65CC.
registered tax agent has the meaning given by
section 251A of the Income Tax Assessment Act 1936.
reimburse includes any act having the effect
or result, direct or indirect, of a reimbursement.
relative has the meaning given by subsection
995‑1(1) of the Income Tax Assessment Act 1997.
religious practitioner has the meaning given
by subsection 995‑1(1) of the Income Tax Assessment Act 1997.
remote area housing benefit has the meaning
given by subsection 58ZC(2).
rent index number
(a) in relation to a quarter in
relation to a State or Territory—means the index number for the rent sub‑group
of the Consumer Price Index published by the Australian Statistician in respect
of that quarter for the capital city of that State or Territory; or
(b) in relation to a quarter in
relation to Australia—means the index number for the rent sub‑group of
the Consumer Price Index, being the weighted average of the 8 capital cities,
published by the Australian Statistician in respect of that quarter.
reportable fringe benefits amount for a year
of income in respect of the employment of an employee by an employer has the
meaning given by section 135P or 135Q (as appropriate).
reportable fringe benefits total of an
employee for a year of income has the meaning given by section 135N.
residential fuel means any form of fuel
(including electricity) for use for domestic purposes.
residual benefit means a benefit that is a
residual benefit by virtue of section 45.
residual fringe benefit means a fringe
benefit that is a residual benefit.
retention period, in relation to a statutory
evidentiary document in relation to an employer in relation to a year of tax,
means the period that:
(a) commences on:
(i) where the statutory
evidentiary document is maintained by or on behalf of the employer—the day on
which the document commences to be maintained; or
(ii) in any other case—the
day on which the statutory evidentiary document is given to the employer; and
(b) ends:
(i) in a case to which subparagraph (ii)
does not apply—at the end of the period of 5 years commencing on the original
assessment date in relation to an assessment of the fringe benefits taxable
amount of the employer of the year of tax; or
(ii) if, at the end of that
period of 5 years, an objection, or a request for amendment of an assessment
(not being an objection) relating to a matter, or matters including a matter,
to which the statutory evidentiary document is relevant, or a review or appeal
arising out of such an objection, has not been determined or otherwise finally
disposed of—on the day on which the objection (and any review or appeal arising
out of it), the request, or review or appeal (and any appeal or further appeal
arising out of it), as the case may be, is determined or so disposed of.
safety award benefit, in relation to an
employee of an employer, means a benefit provided to the employee, in respect
of the employment of the employee, solely by way of an award in recognition of
the special achievements of the employee, or of the employee and another person
or persons, in occupational health matters, or in occupational safety matters,
relating to the employment of the employee, or of the employee and that other
person or persons, but does not include:
(a) a payment of salary or wages or a
payment that would be salary or wages if salary or wages included exempt income
for the purposes of the Income Tax Assessment Act 1936;
(b) a benefit provided under a non‑arm’s
length arrangement; or
(c) a benefit provided under an
arrangement where, having regard to:
(i) the form and substance
of the arrangement;
(ii) the achievements recognised
by the award; and
(iii) the eligibility of
other employees of the employer to be awarded benefits in recognition of their
special achievements in occupational health matters or in occupational safety
matters;
it would be concluded that the
arrangement, or any part of the arrangement, was entered into by any of the
parties to the arrangement for the sole or dominant purpose of enabling the
employer to obtain the benefit of the application of section 58R.
salary or wages means:
(a) a payment from which an amount
must be withheld (even if the amount is not withheld) under a provision in
Schedule 1 to the Taxation Administration Act 1953 listed in the
table, to the extent that the payment is assessable income; and
(b) a payment from which an amount
must be withheld (even if the amount is not withheld) under section 12‑47
in Schedule 1 to the Taxation Administration Act 1953 where:
(i) the payment is made to
a religious practitioner by a religious institution; and
(ii) the activity, or
series of activities, for which the payment is made is done by the religious
practitioner as a member of the religious institution.
|
Withholding payments covered
|
|
Item
|
Provision
|
Subject matter
|
|
1
|
Section 12‑35
|
Payment to employee
|
|
2
|
Section 12‑40
|
Payment to company director
|
|
3
|
Section 12‑45
|
Payment to office holder
|
|
4
|
Section 12‑115
|
Commonwealth education or training payment
|
|
5
|
Section 12‑120
|
Compensation, sickness or accident payment
|
Second Commissioner means a Second
Commissioner of Taxation.
small expense payment fringe benefit means an
expense payment fringe benefit where the recipients expenditure does not exceed
$10.
spouse has the meaning given by subsection
995‑1(1) of the Income Tax Assessment Act 1997.
stand‑by value, in relation to the
recipients transport, in relation to an airline transport fringe benefit,
means:
(a) if the recipients transport is
over a domestic route:
(i) if the recipients
transport is on a scheduled passenger air service—37.5% of the lowest publicly
advertised economy air fare charged by the provider at or about the comparison
time in respect of transport over that route; and
(ii) if:
(A) the
recipients transport is not on a scheduled passenger air service; and
(B) a
carrier operates a scheduled passenger air service over that route at or about
the comparison time;
37.5% of the lowest
publicly advertised economy air fare charged by a carrier at or about the
comparison time in respect of transport over that route; and
(iii) if:
(A) the
recipients transport is not on a scheduled passenger air service; and
(B) no
carrier operates a scheduled passenger air service over that route at or about
the comparison time; and
(C) a
combination of scheduled passenger air services operated by a carrier or
carriers at or about the comparison time would enable a person to travel
between the ports of embarkation and disembarkation;
37.5% of the lowest
combination of publicly advertised economy air fares charged by carriers at or
about the comparison time in respect of transport between the ports of
embarkation and disembarkation; and
(iv) in any other case—75%
of the notional value at the comparison time of the recipients transport; and
(b) where the recipients transport is
over an international route:
(i) if the recipients
transport is on a scheduled passenger air service and there is, at or about the
comparison time, a providers published air fare in respect of the route—37.5%
of the lowest providers published air fare in respect of that route;
(ii) if subparagraph (i)
does not apply and a carrier operates a scheduled passenger air service over
that route at or about the comparison time—37.5% of the lowest economy air fare
charged by a carrier at or about the comparison time in respect of transport
over that route;
(iii) if neither subparagraph (i)
nor (ii) applies and a combination of scheduled passenger air services operated
by a carrier or carriers at or about the comparison time would enable a person
to travel between the ports of embarkation and disembarkation—37.5% of the
lowest combination of economy air fares charged by carriers at or about the
comparison time in respect of transport between the ports of embarkation and
disembarkation; and
(iv) in any other case—75%
of the notional value at the comparison time of the recipients transport.
statutory evidentiary document, in relation
to an employer in relation to a year of tax (in this definition called the current
year of tax), means:
(a) a declaration or other document
that is:
(i) given to the employer
pursuant to a provision of Part III or of a definition in this subsection
that is relevant to that Part; and
(ii) relevant for the
purposes of determining:
(A) the
taxable value of a fringe benefit provided in, or in respect of, the current
year of tax in respect of the employment of an employee of the employer;
(AA) the
notional taxable value of a benefit provided in, or in respect of, the current
year of tax in respect of the employment of an employee of the employer; or
(B) whether
a benefit provided in, or in respect of, the current year of tax in respect of
the employment of an employee of the employer is an exempt benefit; and
(aa) records of a nomination under
section 162K or 162L that:
(i) are maintained by the
employer in relation to the current year of tax; or
(ii) were maintained by the
employer in relation to an earlier year of tax but are relevant to the
employer’s liability under this Act in respect of the current year of tax;
(ab) a record of the business use
percentage specified by the employer for the current year of tax; and
(b) a document maintained by the
employer in relation to the current year of tax as mentioned in section 10A
or paragraph 10B(a) or sub‑subparagraph 24(1)(c)(ia)(A) or
24(1)(c)(i)(B); and
(c) log book records or odometer
records maintained in relation to a particular car where any of the following
subparagraphs apply:
(i) both of the following
conditions are satisfied:
(A) the
current year of tax is not a log book year of tax of the employer in relation
to the car;
(B) section 10A
required the records to be maintained by or on behalf of the provider of a car
fringe benefit in relation to the employer as a condition of the employer being
entitled, in respect of the year of tax that was the last log book year of tax
of the employer in relation to the car before the current year of tax, to a
reduction in the operating cost of the car on account of business journeys
undertaken in the car during that last log book year of tax;
(ii) both of the following
conditions are satisfied:
(A) the
current year of tax is not a log book year of tax of the recipient of a loan
fringe benefit, an expense payment fringe benefit, a property fringe benefit or
a residual fringe benefit in relation to the car while it was held by the
recipient during a period in the current year of tax;
(B) section 65E
required the records to be maintained by or on behalf of the recipient as a
condition of the employer being entitled, in relation to the year of tax that
was the last log book year of tax of the recipient before the current year of
tax, to a reduction of the taxable value of a fringe benefit on account of
business journeys undertaken in the car in that last log book year of tax; and
(d) a no‑private‑use
declaration or a recurring fringe benefit declaration that covers benefits
provided in the current year of tax.
statutory food amount, in relation to a
person, in relation to a period in relation to a year of tax, means the amount
calculated in respect of that period:
(a) in a case where the person had
attained the age of 12 years before the beginning of the year of tax—at the
rate of $42 per week; and
(b) in any other case—at the rate of
$21 per week.
statutory interest rate:
(a) in relation to a year of tax,
means the benchmark interest rate in relation to the year of tax; or
(b) in relation to a time (in this
paragraph referred to as the loan time) before 1 July 1986, means:
(i) if the loan time
occurred after 2 April 1986:
(A) if there
is only 1 benchmark interest rate in relation to the loan time—that rate;
(B) if there
are 2 or more benchmark interest rates in relation to the loan time—the lower
or lowest of those rates; or
(C) if there
is no benchmark interest rate in relation to the loan time—such rate as is
prescribed;
(ii) if the loan time
occurred during a period specified in the Schedule—the rate specified in the
Schedule in relation to that period; and
(iii) if the loan time
occurred before 1 January 1946—3.875% per annum.
stratum unit, in relation to a dwelling,
means a unit on a unit plan registered under a law of a State or Territory that
provides for the registration of titles of a kind known as unit titles or
strata titles, being a unit that comprises:
(a) a part of a building containing
the dwelling, being a part consisting of a flat or home unit; or
(b) a part of a parcel of land, being
a part on which the building containing the dwelling is constructed.
supplementary car rate, in relation to a year
of tax, means the rate prescribed for the purposes of this definition in
relation to the year of tax.
tangible property
means goods and includes:
(a) animals, including fish; and
(b) gas and electricity.
tax‑exempt body entertainment benefit
means a benefit referred to in section 38.
tax‑exempt body entertainment fringe benefit
means a fringe benefit that is a tax‑exempt body entertainment benefit.
taxi means a motor vehicle that is licensed
to operate as a taxi.
tenancy period, in relation to a housing
benefit in relation to a year of tax, means the period during the year of tax
when the housing right to which the benefit relates subsisted.
this Act
includes:
(a) the regulations; and
(b) Part IVC of the Taxation
Administration Act 1953, insofar as that Part relates to this Act.
travel agent, in relation to transport
provided in respect of the employment of an employee, means a person who, at or
about the time when that transport commenced to be provided, carried on a
business that consisted of or included the sale principally to outsiders of
airline tickets issued by airline operators.
travel diary, in relation to particular
travel undertaken by the recipient of an expense payment fringe benefit, an
airline transport fringe benefit, a property fringe benefit or a residual
fringe benefit, means a diary or similar document, in the English language, in
which, in relation to each activity engaged in by the recipient:
(a) while undertaking that travel; and
(b) in the course of producing
assessable income of the recipient;
the recipient has made, before, at the time of, or as soon
as reasonably practicable after, the conclusion of the activity, an entry
setting out particulars of:
(d) the place where the activity was
undertaken;
(e) the date and approximate time when
the activity commenced;
(f) the duration of the activity; and
(g) the nature of the activity;
and includes a copy of such a diary or document.
Tribunal means the Administrative Appeals
Tribunal.
trustee
includes:
(a) a person appointed or constituted
trustee by act of parties, by order or declaration of a court, or by operation
of law; or
(b) an executor, administrator or
other personal representative of a deceased person; or
(c) a guardian or committee; or
(d) a receiver or receiver and
manager; or
(e) a liquidator of a company; or
(ea) an administrator, within the
meaning of the Corporations Act 2001, of a company; or
(eb) an administrator of a deed of
company arrangement executed by a company under Part 5.3A of that Act; or
(f) a person:
(i) having or taking upon
himself or herself the administration or control of any real or personal
property affected by any express or implied trust;
(ii) acting in any
fiduciary capacity; or
(iii) having the possession,
control or management of any real or personal property of a person under any
legal or other disability.
unincorporated company means a company being
an unincorporated association or other unincorporated body of persons.
unit of accommodation includes:
(a) a house, flat or home unit;
(aa) accommodation in a house, flat or
home unit;
(b) accommodation in a hotel, hostel,
motel or guesthouse;
(c) accommodation in a bunkhouse or
any living quarters;
(d) accommodation in a ship, vessel or
floating structure; and
(e) a caravan or other mobile home.
unreimbursed expenditure means expenditure no
part of which has been reimbursed.
unreimbursed interest means interest no part
of which has been reimbursed.
waive includes release.
workers’ compensation law means a law of the
Commonwealth, a State, a Territory or a foreign country that provides for
compensation or other benefits for or in respect of work‑related trauma
suffered by employees without requiring proof of any breach by, or by persons
associated with, employers.
work‑related
counselling:
(a) in relation to an employee of an
employer, means counselling attended by the employee; and
(b) in relation to an associate of an
employee of an employer, means counselling attended by the associate where the
associate is accompanied by the employee;
where all of the following conditions are satisfied:
(c) the attendance of:
(i) if paragraph (a)
applies—the employee; and
(ii) if paragraph (b)
applies—both the employee and the associate;
at the counselling gives effect
to an objective, purpose, plan or policy devised, adopted or required to be
followed, by the employer to:
(iii) improve or maintain
the quality of the performance of employees’ duties; or
(iv) prepare employees for
retirement;
(d) the counselling relates to any of
the following matters:
(i) safety;
(ii) health;
(iii) fitness;
(iv) stress management;
(v) personal relationships;
(vi) retirement problems;
(vii) drug or alcohol abuse;
(viii) rehabilitation or
prevention of work‑related trauma or of other disease or injury;
(ix) first aid;
(x) any similar matter;
(e) there is no benefit that:
(i) is provided in respect
of the employment of the employee;
(ii) consists of the
provision of, or relates to, the counselling; and
(iii) is provided wholly or
principally as a reward for services rendered or to be rendered by the
employee.
work‑related medical examination, in
relation to a benefit provided in respect of the employment of an employee,
means an examination or test carried out by, or on behalf of, an audiometrist
or a legally qualified medical practitioner, nurse, dentist or optometrist
wholly or principally in order to ascertain the physiological or psychological
condition of the employee for any or all of the following purposes:
(a) the commencement of the employment
of the employee;
(b) the confirmation of probationary
employment of the employee;
(c) a change in the duties or location
of the employment of the employee;
(d) the employee becoming a member of
a superannuation fund.
work‑related medical screening, in
relation to an employee of an employer, means an examination or test carried
out by, or on behalf of, an audiometrist or a legally qualified medical
practitioner, nurse, dentist or optometrist wholly or principally in order to
ascertain whether the employee has suffered, is suffering or is at risk of
suffering, from work‑related trauma, but does not include an examination
or test that is not made available generally to all employees of the employer:
(a) who are likely to have suffered,
be suffering or be at risk of suffering, from similar work‑related
trauma;
(b) who perform the duties of their employment
at or near the place where the employee performs the duties of his or her
employment; and
(c) whose duties of employment are
similar to those of the employee.
work‑related preventative health care,
in relation to an employee of an employer, means any form of care provided by,
or on behalf of, a legally qualified medical practitioner, nurse, dentist or
optometrist wholly or principally in order to prevent the employee suffering
from work‑related trauma, but does not include a form of care that is not
made available generally to all employees of the employer:
(a) who are likely to be at risk of
suffering from similar
work‑related trauma;
(b) who perform the duties of their
employment at or near the place where the employee performs the duties of his
or her employment; and
(c) whose duties of employment are
similar to those of the employee.
work‑related trauma, in relation to an
employee, means:
(a) the injury of the employee
(including the aggravation, acceleration or recurrence of an injury of the
employee);
(b) the contraction, aggravation,
acceleration or recurrence of a disease of the employee;
(c) the loss or destruction of, or
damage to:
(i) an artificial limb or
other artificial substitute;
(ii) a medical, surgical or
similar aid or appliance used by the employee; or
(iii) clothing worn by the
employee; or
(d) the coming into existence, the
aggravation, acceleration or recurrence of any other physiological or
psychological condition in relation to the employee that is or may be harmful or
disadvantageous to, or result in harm or disadvantage to, the employee;
that is related to any employment of the employee.
work‑related travel, in relation to an
employee, means:
(a) travel by the employee between:
(i) the place of residence
of the employee; and
(ii) the place of
employment of the employee or any other place from which or at which the
employee performs duties of his or her employment; or
(b) travel by the employee that is
incidental to travel in the course of performing the duties of his or her
employment.
year of income means an income year (within
the meaning of the Income Tax Assessment Act 1997).
year of tax means the year starting on 1 April 1987, and each later year starting on 1 April.
(2) In the definition of business
premises in subsection (1), premises includes a
ship, vessel, floating structure, aircraft or train.
136AB
What constitutes reasonable belief that a superannuation fund is a complying
superannuation fund
(1) Subject to subsection (2), if a
person makes a payment to a superannuation fund, the person is taken, for the
purposes of paragraph (j) of the definition of fringe benefit in
subsection 136(1), to have reasonable grounds for believing that the fund is a
complying superannuation fund (as defined by the Income Tax Assessment Act
1997) if, at or before the time when the payment is made, the person has
obtained a written statement, provided by or on behalf of the trustee of the
fund, that the fund:
(a) is a resident regulated
superannuation fund within the meaning of the Superannuation Industry
(Supervision) Act 1993; and
(b) is not subject to a direction
under section 63 of that Act.
(2) A person who makes a payment to a
superannuation fund is taken not to have reasonable grounds for believing that
the fund is a complying superannuation fund if, when the payment is made:
(a) the person:
(i) is the trustee or the
manager of the fund; or
(ii) is an associate of the
trustee or the manager of the fund; and
(b) the person has reasonable grounds
for believing that the fund is not a resident regulated superannuation fund
within the meaning of the Superannuation Industry (Supervision) Act 1993 or
is operating in contravention of a regulatory provision, as defined in section 38A
of that Act.
(3) Section 39 of the Superannuation
Industry (Supervision) Act 1993 applies for the purposes of subsection (2)
of this section in a corresponding way to the way in which it applies for the
purposes of Division 2 of Part 5 of that Act.
136A
Reimbursement etc. of tax not to be regarded as consideration in respect of
benefit etc.
For the purposes of this Act, an amount
paid (including an amount deemed by section 145 to have been paid) in
respect of fringe benefits tax shall not be regarded as also being
consideration for or in respect of:
(a) the provision of a benefit; or
(b) any other matter.
137
Salary or wages
(1) For the purpose only of ascertaining
whether a person is an employee or an employer within the meaning of this Act,
where:
(a) a benefit is provided by a person
(in this subsection referred to as the first person) to, or to an
associate of, another person (in this subsection referred to as the second
person);
(b) but for this subsection, the
benefit would not be regarded as having been provided in respect of the
employment of the second person; and
(c) either of the following conditions
is satisfied:
(i) if the benefit were
provided by the first person by way of a cash payment to the second person, the
payment would constitute salary or wages paid by the first person to the second
person;
(ii) all of the following
conditions are satisfied:
(A) subparagraph (i)
does not apply in relation to the benefit;
(B) the
first person is an associate of a third person or the benefit is provided under
an arrangement between the first person and a third person;
(C) if the
benefit were provided by the third person by way of a cash payment to the
second person, the payment would constitute salary or wages paid by the third
person to the second person;
a definition in subsection 136(1) applies as if the
benefit were salary or wages paid to the second person by:
(d) in a case to which subparagraph (c)(i)
applies—the first person; or
(e) in a case to which subparagraph (c)(ii)
applies—the third person.
138
Double counting of fringe benefits
(1) Where:
(a) a person (in this subsection
referred to as the employee) is both:
(i) an employee of an
employer (in this section referred to as the first employer); and
(ii) an employee of one or
more associates of the first employer;
(b) a benefit is provided to, or to an
associate of, the employee by the first employer; and
(c) the benefit is a fringe benefit in
relation to the first employer;
the benefit is not a fringe benefit in relation to an
employer who is an associate of the first employer.
(2) For the purposes of this Act, where, in a
case to which subsection (1) does not apply, a benefit provided to, or to
an associate of, an employee would, but for this subsection, be a fringe
benefit in relation to 2 or more employers, the benefit shall be taken to be a
fringe benefit in relation to such one of those employers as the Commissioner
determines and not in relation to any other of those employers.
(3) For the purposes of this Act, where a
benefit in respect of the employment of an employee is provided jointly to the
employee and one or more associates of the employee, the benefit shall be
deemed to have been provided to the employee only.
(4) For the purposes of this Act, where a
benefit in respect of the employment of an employee is provided jointly to 2 or
more associates of the employee but not to the employee, the benefit shall be
taken to have been provided to such one of those associates as the Commissioner
determines and not to any other of those associates.
138A
Benefit provided in respect of a year of tax
A reference in this Act to a benefit
provided in respect of a year of tax is a reference to a benefit that is deemed
to be provided in respect of the year of tax.
138B
Benefit provided in respect of the employment of an employee
A reference in this Act to a benefit
provided in respect of the employment of an employee is a reference to a
benefit provided, or originally provided, as the case may be, in respect of
that employment.
138C
Application or use of benefit
A reference in this Act to the
application or use of a benefit is a reference to the application or use of:
(a) in the case of an airline
transport benefit—the recipients transport;
(b) in the case of a board benefit—the
recipients meal;
(c) in the case of a loan benefit—the
loan to which the benefit relates;
(d) in the case of a property
benefit—the recipients property; or
(e) in the case of a residual
benefit—the recipients benefit.
139
Date on which return furnished
Where an employer furnishes, on
different dates, 2 or more returns to the Commissioner under this Act relating
to a year of tax, a reference in this Act to the day on which the return
relating to that year was furnished is a reference to the earliest of those
dates.
140
Eligible urban areas
(1) In this Act:
(a) a reference to an eligible urban
area is a reference to:
(i) an area that:
(A) is
situated in an area described in Schedule 2 to the Income Tax
Assessment Act 1936; and
(B) is an
urban centre with a census population of not less than 28,000; and
(ii) an area that:
(A) is not
situated in an area described in Schedule 2 to the Income Tax
Assessment Act 1936; and
(B) is an
urban centre with a census population of not less than 14,000; and
(b) a reference to a location that is
adjacent to an eligible urban area is a reference to a location that, as at the
date of commencement of this section:
(i) was situated less than
40 kilometres, by the shortest practicable surface route, from the centre point
of an eligible urban area with a census population of less than 130,000; or
(ii) was situated less than
100 kilometres, by the shortest practicable surface route, from the centre
point of an eligible urban area with a census population of not less than
130,000.
(1A) However, this Act operates in relation to a
housing benefit provided in respect of the employment of an employee of an
employer described in subsection (1B) or in respect of the employment of
an employee described in subsection (1C), (1CA) or (1D) as if:
(a) a reference in this Act (except in
paragraph (1)(a), this paragraph and subsection 140(4)) to an eligible
urban area were a reference to an eligible urban area that is an urban centre
with a census population of not less than 130,000; and
(b) subparagraph (1)(b)(i) were
omitted.
(1B) Subsection (1A) applies in relation to
each of the following employers:
(a) a public hospital;
(c) a hospital carried on by:
(i) a society that is a
non‑profit society for the purposes of section 65J; or
(ii) an association that is
a non‑profit association for the purposes of section 65J;
(d) an employer that is a charitable
institution.
(1C) Subsection (1A) also applies in
relation to an employee:
(a) whose employer is a government
body; and
(b) whose duties of employment 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.
(1CA) Subsection (1A)
also applies in relation to an employee:
(a) whose employer provides public
ambulance services or services that support those services; and
(b) who is predominantly involved in
connection with the provision of those services.
(1D) Subsection (1A) also applies in
relation to an employee:
(a) whose employer is a government
body; and
(b) whose duties of employment are
performed in a police service.
(2) For the purposes of this section, the
distance, by the shortest practicable surface route, between a location (in
this subsection referred to as the tested location) and the
centre point of an eligible urban area is:
(a) where there is only one location
within the eligible urban area from which distances between the eligible urban
area and other places are usually measured—the distance, by the shortest
practicable surface route, between the tested location and that location; and
(b) where there are 2 or more
locations within the eligible urban area from which distances between parts of
the eligible urban area and other places are usually measured—the distance, by
the shortest practicable surface route, between the tested location and the one
of those locations that is in the principal one of those parts.
(2A) In applying subsection (2), if the
shortest practicable surface route between the tested location and the location
mentioned in that subsection includes a route by water, the distance between
those locations is taken to be the amount worked out using the following formula:
(3) In this section:
census population, in relation to an urban
centre, means the census count on an actual location basis of the population of
that urban centre specified in the results of the Census of Population and
Housing taken by the Australian Statistician on 30 June 1981, being the
results published by the Australian Statistician in the document entitled
“Persons and Dwellings in Local Government Areas and Urban Centres”.
surface route means a route other than an air
route.
urban centre means an area that is described
as an urban centre or bounded locality in the results of the Census of
Population and Housing taken by the Australian Statistician on 30 June 1981, being the results published by the Australian Statistician in the
document entitled “Persons and Dwellings in Local Government Areas and Urban
Centres”.
(4) If, but for this subsection, the whole or
any part of a provision of this Act or of the Fringe Benefits Tax Act 1986 would
be invalid by reason of the enactment of paragraph (1)(a) of this section,
this Act has effect as if that paragraph were omitted and the following
paragraph were substituted:
“(a) a reference to an eligible urban
area is a reference to an area that is an urban centre with a census population
of not less than 14,000; and”.
141
Housing loans, prescribed interests in land or stratum units and proprietary
rights in respect of dwellings
(1) For the purposes of this Act, where:
(a) a loan is made to, and used by, a
person (whether in his or her own right or jointly with his or her spouse)
wholly:
(i) to enable the person
to acquire a prescribed interest in land on which a building constituting or
containing a dwelling was subsequently to be constructed or to acquire a
prescribed interest in land and construct, or complete the construction of,
such a building on the land;
(ii) to enable the person
to construct, or complete the construction of, a building constituting or
containing a dwelling on land in which the taxpayer held a prescribed interest;
(iii) to enable the person
to acquire a prescribed interest in land on which there was a building
constituting or containing a dwelling;
(iv) to enable the person to
acquire a prescribed interest in a stratum unit in relation to a dwelling;
(v) to enable the person to
extend a building constituting or containing a dwelling, being a building
constructed on land in which the taxpayer held a prescribed interest, by adding
a room or part of a room to the building or the part of the building containing
the dwelling, as the case may be;
(vi) in a case where the
person held a prescribed interest in a stratum unit in relation to a
dwelling—to enable the person to extend the dwelling by adding a room or part
of a room to the dwelling;
(vii) to enable the person to
acquire a proprietary right in respect of a dwelling, being a flat or a home
unit; or
(viii) to enable the person
to repay a loan that was made to, and used by, the person wholly for a purpose
mentioned in a preceding subparagraph of this paragraph; and
(b) at the time the loan was made, the
dwelling was used or proposed to be used as the person’s usual place of
residence;
the loan shall be taken to be a housing loan relating to
the dwelling.
(2) For the purposes of this Act:
(a) where:
(i) a person acquires, holds
or held an estate in fee simple in land or in a stratum unit or 2 or more
persons acquire, hold or held such an estate in land or in a stratum unit as
joint tenants or tenants in common;
(ii) a person acquires,
holds or held an interest in land or in a stratum unit as lessee or licensee,
or 2 or more persons acquire, hold or held jointly an interest in land or in a
stratum unit as lessees or licensees, under a lease or licence, and the
Commissioner is satisfied that the lease or licence gives or gave reasonable
security of tenure to the lessee or licensee, or to the lessees or licensees,
for a period of, or for periods aggregating, not less than 10 years;
(iii) a person acquires,
holds or held an interest in land or in a stratum unit as purchaser of an
estate in fee simple in the land or in the stratum unit, or 2 or more persons
acquired, hold or held an interest in land or in a stratum unit as purchasers
of such an estate in the land or in the stratum unit as joint tenants or
tenants in common, under an agreement that provides or provided for payment of
the purchase price, or a part of the purchase price, to be made at a future
time or by instalments; or
(iv) a person acquires,
holds or held an interest in land or in a stratum unit as purchaser, or 2 or
more persons acquire, hold or held jointly an interest in land or in a stratum
unit as purchasers, of the right to be granted a lease of the land or of the
stratum unit under an agreement that provides or provided for payment of the
purchase price, or a part of the purchase price, for the lease to be made at a
future time or by instalments and the Commissioner is satisfied that the lease
will give or gave reasonable security of tenure, to the lessee or lessees for a
period of, or for periods aggregating, not less than 10 years;
that person or those persons
shall be taken to acquire or hold, or to have held, as the case may be, a
prescribed interest in that land or in that stratum unit, as the case requires;
and
(b) where a person acquires, holds or
held, or 2 or more persons acquire, hold or held jointly, a right of occupancy
of a dwelling, being a flat or a home unit, arising by virtue of the acquiring
or holding of shares, or by virtue of a contract to purchase shares, in a
company that owns or owned the building that contains the flat or home unit,
that person, or those persons, as the case requires, shall be taken to acquire
or hold, or to have held, as the case may be, a proprietary right in respect of
the dwelling;
(c) where:
(i) a loan that but for
this paragraph would be a housing loan relating to a dwelling is made by a
person (in this paragraph referred to as the lender) to another
person (in this paragraph referred to as the borrower);
(ii) the lender does not
maintain an account in relation to the loan that is separate and apart:
(A) from any
account kept by the lender in relation to any moneys deposited with the lender
or applied by the lender on behalf of the borrower otherwise than for the
purpose of repaying the loan, in whole or in part, or of paying, in whole or in
part, interest that has accrued or will accrue in respect of the loan; and
(B) from any
account kept by the lender in relation to any other loan made by the lender to
the borrower;
the loan referred to in subparagraph (i)
is not a housing loan relating to a dwelling.
(3) For the purposes of this Act, a loan
shall not be taken to be a housing loan relating to a dwelling except as
provided in this section.
141A
Benefits incidental to acquisition or sale of prescribed interests in land or
stratum units and proprietary rights in respect of dwellings
(1) For the purposes of this Act, recipients
expenditure shall be taken to be incidental to the acquisition or sale of a
prescribed interest in land or a stratum unit or of a proprietary right in
respect of a dwelling if, and only if:
(a) in the case of an acquisition of a
prescribed interest in land on which the employee or associate concerned
proposes to construct, or complete the construction of, a building constituting
or containing a dwelling—the recipients expenditure is in respect of any of the
following matters:
(i) stamp duty;
(ii) legal services;
(iii) agent’s services;
(iv) discharge of a
mortgage;
(v) expenses of borrowing;
(vi) any similar matter;
being a matter of a capital
nature that is incidental to the construction, or the completion of the
construction, of that building;
(b) in all cases—the recipients
expenditure is in respect of any of the following matters:
(i) stamp duty;
(ii) advertising;
(iii) legal services;
(iv) agent’s services;
(v) discharge of a
mortgage;
(vi) expenses of borrowing;
(vii) any similar matter;
being a matter of a capital
nature that is incidental to the acquisition or sale of the interest or right;
and
(c) in all cases—the recipients
expenditure is not in respect of:
(i) interest;
(ii) repayments of
principal;
(iii) loan service fees;
(iv) the discharge of a
mortgage, or expenses of borrowing, where the money borrowed was not applied
wholly in respect of the land, stratum unit or proprietary right or in respect
of a building on the land;
(v) insurance; or
(vi) rates.
(2) For the purposes of this Act, a
recipients benefit shall be taken to be incidental to the acquisition or sale
of a prescribed interest in land or a stratum unit or of a proprietary right in
respect of a dwelling if, and only if:
(a) the recipients benefit consists of
any of the following matters:
(i) advertising;
(ii) legal services;
(iii) agent’s services;
(iv) services related to
borrowing;
(v) any similar matter;
being a matter of a capital
nature that is incidental to the acquisition or sale of the interest or right;
and
(b) the recipients benefit does not
consist of or relate to:
(i) insurance; or
(ii) services related to
borrowing where the money borrowed was not applied wholly in respect of the
land, stratum unit or proprietary right or in respect of a building on the
land.
142
Remote area housing
(1) In this Act, a reference, in relation to
a year of tax in relation to an employee of an employer, to a remote area
housing loan connected with a dwelling is a reference to a housing loan
relating to the dwelling where:
(a) during the whole of the period (in
this subsection referred to as the occupation period) in the year
of tax when the employee occupied or used the dwelling as his or her usual
place of residence:
(i) the dwelling was
situated in a State or internal Territory and was not at a location in, or
adjacent to, an eligible urban area; and
(ii) the
employee was a current employee of the employer and the usual place of
employment of the employee was not at a location in, or adjacent to, an
eligible urban area;
(b) the common conditions set out in subsection (2E)
are satisfied in relation to the occupation period; and
(d) the loan was not made to the
employee pursuant to:
(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 section 60.
(1A) In this Act, a reference, in relation to a
year of tax in relation to an employee of an employer, to remote area housing
rent connected with a unit of accommodation is a reference to rent or other
consideration payable in respect of the subsistence of a lease or licence in
respect of the unit of accommodation where:
(a) during the whole of the period (in
this subsection referred to as the occupation period) in the year
of tax when the employee occupied or used the unit of accommodation as his or
her usual place of residence:
(i) the unit of
accommodation was situated in a State or internal Territory and was not at a
location in, or adjacent to, an eligible urban area; and
(ii) the employee was a
current employee of the employer and the usual place of employment of the
employee was not at a location in, or adjacent to, an eligible urban area;
(b) the common conditions set out in subsection (2E)
are satisfied in relation to the occupation period; and
(d) the lease or licence was not
granted 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 section 60.
(2) In this Act, a reference, in relation to
a property fringe benefit in relation to a year of tax in relation to an
employee of an employer, to remote area residential property is a reference to
property that consists of an estate or interest in land:
(aa) on which is situated a dwelling
occupied or used by the employee immediately after the provision time as his or
her usual place of residence; or
(ab) on which the employee proposes, as
at the provision time, to construct, or complete the construction of, a
dwelling to be occupied or used by the employee as his or her usual place of
residence;
where:
(ac) if paragraph (ab) applies—the
Commissioner is satisfied that the employee has pursued sustained reasonable
efforts to:
(i) commence the
construction, or commence the completion of the construction, of the dwelling
within 6 months after the provision time; and
(ii) occupy or use the
dwelling as his or her usual place of residence within 18 months after the
provision time;
(a) at the provision time:
(i) the land was situated
in a State or internal Territory and was not at a location in, or adjacent to,
an eligible urban area; and
(ii) the employee was a
current employee of the employer and the usual place of employment of the
employee was not at a location in, or adjacent to, an eligible urban area;
(b) the common conditions set out in subsection (2E)
are satisfied in relation to the provision time; and
(d) the
property was not provided to the employee pursuant to:
(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 section 60 or Division 14A of Part III.
(2A) In this Act, a reference, in relation to a
property fringe benefit in relation to a year of tax in relation to an employee
of an employer, to a remote area residential property option fee is a reference
to property that consists of a fee paid to the employee by way of consideration
in respect of the grant of an option to purchase an estate or interest in land:
(a) held by the employee; and
(b) on which:
(i) there is a dwelling
occupied or used by the employee immediately after the provision time as his or
her usual place of residence; or
(ii) the employee proposes,
as at the provision time, to construct, or complete the construction of, a
dwelling to be occupied or used by the employee as his or her usual place of
residence;
where:
(c) if subparagraph (b)(ii)
applies—the Commissioner is satisfied that the employee has pursued sustained
reasonable efforts to:
(i) commence the
construction, or commence the completion of the construction, of the dwelling
within 6 months after the provision time; and
(ii) occupy or use the
dwelling as his or her usual place of residence within 18 months after the
provision time;
(d) at the provision time:
(i) the land was situated
in a State or internal Territory and was not at a location in, or adjacent to,
an eligible urban area; and
(ii) the employee was a
current employee of the employer and the usual place of employment of the
employee was not at a location in, or adjacent to, an eligible urban area;
(e) the option was granted at or
before the time the employee acquired the estate or interest and constituted a
recognised remote area housing obligation restricting the disposal of the
estate or interest concerned;
(f) the common conditions set out in subsection (2E)
are satisfied in relation to the provision time; and
(g) the property was not provided to
the employee 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 section 60 or Division 14A of Part III.
(2B) In this Act, a reference, in relation to a
property fringe benefit in relation to a year of tax in relation to an employee
of an employer, to remote area residential property repurchase consideration is
a reference to property that consists of an amount paid to the employee by way
of consideration for the purchase of an estate or interest in land:
(a) held by the employee; and
(b) on which:
(i) there is a dwelling
occupied or used by the employee immediately before the provision time as his
or her usual place of residence; or
(ii) the employee proposed,
as at the time the employee acquired the estate or interest, to construct, or
complete the construction of, a dwelling to be occupied or used by the employee
as his or her usual place of residence;
where:
(c) if subparagraph (b)(ii)
applies—the Commissioner is satisfied that the employee has pursued sustained
reasonable efforts to:
(i) commence the
construction, or commence the completion of the construction, of the dwelling
within 6 months after the time the employee acquired the estate or interest;
and
(ii) occupy or use the dwelling
as his or her usual place of residence within 18 months after the time the
employee acquired the estate or interest;
(d) at the provision time:
(i) the land was situated
in a State or internal Territory and was not at a location in, or adjacent to, an
eligible urban area; and
(ii) the employee was a
current employee of the employer and the usual place of employment of the
employee was not at a location in, or adjacent to, an eligible urban area;
(e) at or before the time the employee
acquired the estate or interest, the employee entered into a recognised remote
area housing obligation restricting the disposal of the estate or interest
concerned;
(f) the purchase by the provider of
the fringe benefit of the estate or interest is in accordance with that
obligation;
(g) the common conditions set out in subsection (2E)
are satisfied in relation to the provision time; and
(h) the property was not provided to
the employee 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 section 60 or Division 14B of Part III.
(2C) In this Act, a reference, in relation to an
expense payment fringe benefit in relation to a year of tax in relation to an
employee of an employer, to recipients expenditure in respect of remote area
residential property is a reference to recipients expenditure that is incurred
wholly:
(a) to enable the employee to acquire
an estate or interest in land on which a dwelling was subsequently to be
constructed or to acquire an estate or interest in land and construct, or
complete the construction of, a dwelling on the land;
(b) to enable the employee to
construct, or complete the construction of, a dwelling on land in which the
employee holds an estate or interest;
(c) to enable the employee to acquire
an estate or interest in land on which there is a dwelling; or
(d) to enable the employee to extend a
dwelling, being a dwelling constructed on land in which the employee holds an
estate or interest, by adding a room or part of a room to the dwelling, as the
case may be;
where:
(e) if paragraph (a) or (b)
applies:
(i) at the time the recipients
expenditure was incurred, the employee proposed to occupy or use the dwelling
as his or her usual place of residence; and
(ii) the Commissioner is
satisfied that the employee has pursued sustained reasonable efforts to:
(A) commence
the construction, or commence the completion of the construction, of the
building constituting or containing the dwelling within 6 months after the time
the recipients expenditure was incurred; and
(B) occupy
or use the dwelling concerned as his or her usual place of residence within 18
months after the time the recipients expenditure was incurred;
(f) if paragraph (c) or (d)
applies—as soon as reasonably practicable after the time the recipients
expenditure was incurred, the dwelling concerned was occupied or used by the
employee as his or her usual place of residence;
(g) at the time the recipients
expenditure was incurred:
(i) the land was situated
in a State or internal Territory and was not at a location in, or adjacent to,
an eligible urban area; and
(ii) the employee was a
current employee of the employer and the usual place of employment of the
employee was not at a location in, or adjacent to, an eligible urban area;
(h) the common conditions set out in subsection (2E)
are satisfied in relation to the time the recipients expenditure was incurred;
and
(j) the fringe benefit was not
provided to the employee 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 section 60 or Division 14A of Part III.
(2D) In this Act, a reference, in relation to a
property fringe benefit or an expense payment fringe benefit in relation to a
year of tax in relation to an employee of an employer, to a recognised remote
area housing obligation restricting the disposal of an estate or interest in
land is a reference to a contractual obligation entered into by the employee
with the employer or an associate of the employer not to dispose of the estate
or interest concerned except:
(a) to the employer or an associate of
the employer; and
(b) for a price specified in, or
ascertained in accordance with, the contract concerned;
at any time during a period specified in the contract
concerned, being a period that ends not earlier than 5 years after:
(c) in the case of a property fringe
benefit where the recipients property is remote area residential property
repurchase consideration—the time the employee acquired the estate or interest
concerned;
(d) in the case of any other property
fringe benefit—the provision time; or
(e) in the case of an expense payment
fringe benefit—the time the recipients expenditure was incurred.
(2E) For the purposes of the application of
this section to a fringe benefit in relation to a year of tax in relation to an
employee of an employer, the common conditions in relation to a particular
period or in relation to a particular time are as follows:
(a) it is customary for employers in
the industry in which the employee was employed during that period or at that
time, as the case may be, to provide housing assistance for their employees;
(b) it would be concluded that it was
necessary for the employer, during the year of tax, to provide or arrange for
the provision of housing assistance 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;
(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 employee was employed during that period
or at that time, as the case may be, to provide housing assistance for their
employees.
(3) A reference in this section to housing
assistance is a reference to:
(a) the provision of residential
accommodation without 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;
(aa) the making of payments in
discharge or reimbursement of rent or other consideration incurred by a person
in respect of the subsistence of a lease or licence in respect of a unit of
accommodation;
(b) the making of a housing loan
relating to a dwelling, being a loan in respect of which the rate of interest
payable is less than the market rate of interest in respect of the loan
concerned;
(c) the making of payments in
discharge or reimbursement of expenditure incurred by a person in respect of
interest incurred in respect of a housing loan relating to a dwelling;
(d) the provision of residential
property without charge or for consideration that is less than the market value
of the property at the provision time;
(e) the making of payments in
discharge or reimbursement of expenditure incurred by a person in acquiring or
constructing residential property; or
(f) the provision of a residential
property ownership scheme involving:
(i) the granting by
employees of options to purchase employees’ residential property; or
(ii) the purchase of
employees’ residential property.
(4) Nothing in section 74 prevents the
amendment of an assessment at any time for the purpose of giving effect to paragraph (2)(ac),
(2A)(c), (2B)(c) or (2C)(e).
142A
Benefits relating to transport
(1) For the
purposes of this Act, recipients expenditure that is in respect of, or a
recipients benefit that consists of:
(a) accident insurance, airport or
departure tax, passenger movement charge, a passport, a visa or a vaccination;
or
(b) any similar matter or thing;
in connection with transport shall be taken to be in
respect of the provision of, or to consist of, transport.
(2) For the purposes of this Act, where:
(a) transport is between a particular
place and another place;
(b) the transport is provided in consecutive
stages; and
(c) apart from this subsection, a
particular matter or thing would be in respect of only one, or only some, of
those stages;
the matter or thing shall be taken to be in respect of the
provision of that transport.
142B
Employee’s new place of employment
Where a provision of this Act refers to
an employee who is required to change his or her usual place of residence in
order to perform the duties of his or her employment, a reference in the
provision to the employee’s new place of employment shall not be taken as
implying that the employee was employed when he or she resided at his or her
former usual place of residence.
142C
Eligible shared accommodation in a house, flat or home unit
For the purposes of this Act, where:
(a) the recipients unit of
accommodation (in this section called the shared unit of accommodation)
in relation to a housing fringe benefit in relation to an employee in relation
to a year of tax consists of accommodation in a house, flat or home unit; and
(b) throughout the tenancy period,
there ordinarily subsisted 3 or more other housing fringe benefits, where each
of those other housing fringe benefits was a housing fringe benefit:
(i) where the recipients
unit of accommodation consisted of accommodation in the house, flat or home
unit; and
(ii) in relation to a
different employee;
the shared unit of accommodation shall be taken to be
eligible shared accommodation in the house, flat or home unit in relation to
the year of tax.
142D
Eligible accommodation in an employees hostel
For the purposes of this Act, where:
(a) the recipients unit of
accommodation in relation to a housing fringe benefit in relation to an
employee in relation to an employer in relation to a year of tax consists of
accommodation in a hostel or a similar building that is operated wholly or
principally for the purpose of providing accommodation for employees of:
(i) the employer; or
(ii) if the employer is a
company—the employer or a company that is related to the employer; and
(b) the recipient is not entitled to
exclusive use of:
(i) cooking facilities in
the hostel or building; or
(ii) more than one bedroom
in the hostel or building;
the recipients unit of accommodation shall be taken to be
eligible accommodation in an employees hostel in relation to the year of tax.
143
Remote area holiday transport
(1) For the purposes of this Act:
(a) the recipients expenditure in
relation to an expense payment fringe benefit;
(aa) the recipients property in
relation to a property fringe benefit; or
(b) 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 shall be taken to be in respect of remote area
holiday transport if:
(c) in the case of an expense payment
fringe benefit—the recipients expenditure is in respect of the provision of
transport, or meals or accommodation in connection with transport;
(ca) in the case of a property
benefit—the recipients property consists of meals in connection with transport;
(d) in the case of a residual fringe
benefit—the recipients benefit consists of:
(i) the provision of
transport or accommodation in connection with transport; or
(ii) the receipt of an
allowance in respect of the cost of obtaining transport, or of obtaining meals
or accommodation in connection with transport;
(e) the transport, accommodation or
meals is for a family member;
(f) apart from temporary absences,
the employee performs the duties of his or her employment at a place in a State
or internal Territory but not at a location in, or adjacent to, an eligible
urban area;
(g) the transport is provided wholly
or principally to enable the family member to have a holiday for a period of
not less than 3 days;
(h) if the transport is for the employee:
(i) the transport is
provided while the employee is on recreation leave, being recreation leave of
not less than 3 working days; and
(ii) at the completion of
that recreation leave, the employee resumes the duties of that employment at
the place referred to in paragraph (f);
(j) either of the following
subparagraphs applies:
(i) the transport is
between:
(A) a place
at or near the place referred to in paragraph (f); and
(B) another
place;
(ii) the transport is for
the spouse, or a child, of the employee, being a spouse or a child of the
employee who does not live with the employee at or near the place referred to
in paragraph (f), and the transport is between:
(A) a place
where the spouse or child, as the case may be, meets the employee; and
(B) another
place;
(ja) if the transport is for the
spouse, or a child, of the employee—the transport is not provided to enable the
spouse or child to accompany the employee:
(i) while the employee is
undertaking travel in the course of performing the duties of his or her
employment; and
(ii) where the
circumstances referred to in subsection 26‑30(2) of the Income Tax
Assessment Act 1997 do not apply; and
(k) 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.
(2) For the purposes of this Act, where:
(a) the recipients expenditure in
relation to an expense payment fringe benefit;
(b) the recipients property in
relation to a property fringe benefit; or
(c) the recipients benefit in relation
to a residual fringe benefit;
is in respect of remote area holiday transport, the fringe
benefit shall be taken to be a remote area holiday transport fringe benefit.
(3) Where:
(a) one or more remote area holiday
transport fringe benefits in relation to a particular employee in relation to a
year of tax relate to a holiday for a particular family member; and
(b) the transport to which that fringe
benefit or those fringe benefits relates does not consist wholly of transport,
by the most direct practicable route, between:
(i) a place at or near the
place referred to in paragraph (1)(f); and
(ii) a place in a State or
internal Territory, being:
(A) a place
at or near the place that was the employee’s usual place of residence
immediately before the employee began employment at the place referred to in paragraph (1)(f);
or
(B) the
capital city of the State or Territory in which the place referred to in paragraph (1)(f)
is located;
the benchmark travel amount in relation to that fringe
benefit or those fringe benefits in relation to that holiday for that family
member is:
(c) if either of the following
subparagraphs apply:
(i) the employee was entitled
to be provided with capital city holiday transport assistance pursuant to the
provisions of an industrial instrument relating to the employment of the
employee;
(ii) there was a custom in
the industry in which the employee was employed such that the employee could
have been provided with capital city holiday transport assistance by the
employer;
the sum of:
(iii) the return economy air
fare in respect of the air service, or the total of the return economy air
fares in respect of the air services, to which that capital city holiday
transport assistance relates; and
(iv) the expenses that could
reasonably be expected to have been incurred in respect of the family member
(whether by way of airport transfer, meals, accommodation, accident insurance,
airport or departure tax, passenger movement charge, or any similar matter or
thing) in accordance with the entitlement or custom to which that capital city
holiday transport assistance relates and in connection with travelling on that
return service or those return services;
(d) if paragraph (c) does not
apply but the following conditions are satisfied in respect of one or more
return scheduled passenger air services:
(A) the
service was operated, at or about the time the holiday commenced, between
eligible places;
(B) the
nature of the service is such that it would not be unreasonable for the family
member to travel on the service;
the lowest of the return economy
air fares for those services;
(e) if neither paragraph (c) nor
(d) applies but the following conditions are satisfied in respect of one or
more combinations of return scheduled passenger air services:
(A) the
combination was operated at or about the time the holiday commenced and would
have enabled a person to travel between eligible places;
(B) the
nature of the combination, and of the services in the combination, is such that
it would not be unreasonable for the family member to travel on the services;
the total of the return economy
air fares for the combination that has the lowest total of economy return air
fares; or
(f) in any other case—an amount equal
to the lowest return fare, or combination of return fares, in respect of travel
services in respect of which the following conditions are satisfied:
(A) the
service, or combination of services, was operated at or about the time the
holiday commenced and would have enabled a person to travel between eligible
places;
(B) the
nature of the service, or the nature of the combination and of the services
included in the combination, is such that it would not be unreasonable for the
family member to travel on the service or services.
(4) For the purposes of the application of
this section in relation to a benefit provided in respect of the employment of
an employee:
(a) a reference in this section to
travel, or to the operation of a service or services, between eligible places
is a reference to travel, or the operation of a service or services, between:
(i) a place at or near the
place referred to in paragraph (1)(f); and
(ii) the capital city of
the State or Territory in which the place referred to in paragraph (1)(f)
is located;
(b) a reference in this section to the
provision of capital city holiday transport assistance to the employee is a
reference to:
(i) the making of payments
in discharge or reimbursement of expenditure incurred by a person in respect of
a return scheduled passenger air service or combination of return scheduled
passenger air services operated by a carrier or carriers between eligible
places; or
(ii) the provision of
transport on such a service or services;
(c) Adelaide shall be treated as the
capital city of the Northern Territory; and
(d) Perth shall be treated as the
capital city of the Territory of Christmas Island and the Territory of Cocos
(Keeling) Islands.
143A
Relocation transport
For the purposes of this Act, where:
(a) any of the following benefits is
provided in, or in respect of, a year of tax to an employee, or to an associate
of the employee, in respect of the employment 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 transport;
(ii) an expense payment
benefit where the recipients expenditure is in respect of the provision of
transport, or meals or accommodation in connection with transport;
(iii) a property benefit
where the recipients property consists of meals in connection with transport;
(iv) a residual benefit
where the recipients benefit consists of the provision of transport or
accommodation in connection with transport;
(b) the transport, meals or
accommodation is for a family member;
(c) the transport 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;
(d) the transport is provided to
enable a family member to:
(i) if subparagraph (c)(i)
applies—take up residence 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 (c)(ii)
applies—take up residence at the employee’s usual place of residence; or
(iii) if subparagraph (c)(iii)
applies—take up residence at the employee’s new usual place of residence;
(e) if the transport is for the
spouse, or a child, of the employee—the transport is not provided to enable the
spouse or child to accompany the employee:
(i) while the employee is
undertaking travel in the course of performing the duties of that employment;
and
(ii) where the
circumstances referred to in subsection 26‑30(2) of the Income Tax
Assessment Act 1997 do not apply; and
(f) if the transport is for the
employee—the transport is not provided while the employee is undertaking travel
in the course of performing the duties of that employment; and
(g) if subparagraph (c)(iii)
applies—the benefit is not provided under a non‑arm’s length arrangement;
the benefit shall be taken to be in respect of relocation
transport.
143B
Overseas employees
For the purposes of this Act, where:
(a) an employee’s usual place of
residence is in a particular country (in this section called the home
country);
(b) apart from temporary absences, the
employee performs the duties of his or her employment at:
(i) a place outside the
home country; or
(ii) 2 or more places
outside the home country; and
(c) the employee is required to live
outside the home country in order to perform the duties of his or her
employment at the place or places referred to in paragraph (b);
the following provisions have effect:
(d) the period commencing when the
employee commences to perform the duties of his or her employment at:
(i) if subparagraph (b)(i)
applies—the place referred to in that subparagraph; or
(ii) if subparagraph (b)(ii)
applies—the first place referred to in that subparagraph at which the employee
performs those duties;
and ending when the employee
ceases, apart from any temporary absences, to perform those duties at:
(iii) if subparagraph (b)(i)
applies—the place referred to in that subparagraph; or
(iv) if subparagraph (b)(ii)
applies—the last place referred to in that subparagraph at which the employee
performs those duties;
shall be taken to be the
overseas posting period of the employee;
(e) the employee shall be taken to be
an overseas employee during the overseas posting period;
(f) the place, or each of the places,
referred to in paragraph (b) shall be taken to be an overseas employment
place.
143C
Overseas employment holiday transport
(1) For the purposes of this Act, 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 the provision
of transport, or meals or accommodation in connection with transport;
(ii) a property fringe
benefit where the recipients property consists of meals in connection with
transport;
(iii) a residual fringe
benefit where the recipients benefit consists of the provision of transport or
accommodation in connection with transport;
(b) the transport, accommodation or
meals is for a family member;
(c) the transport is provided wholly
or principally to enable the family member to have a holiday for a period of
not less than 3 days;
(d) at the time (in this section
called the outbound travel time) immediately before the
commencement of travel undertaken by the family member in connection with that
holiday:
(i) the employee was an
overseas employee; and
(ii) disregarding days of
recreation leave, the employee’s overseas posting period was a period of not
less than 28 days;
(e) if the transport is for the
employee:
(i) the transport is
provided while the employee is on recreation leave, being recreation leave of
not less than 3 working days; and
(ii) at the completion of
that recreation leave, the employee resumes the duties of that employment at
the place that was the employee’s overseas employment place at the outbound
travel time;
(f) either of the following
subparagraphs applies:
(i) the transport is
between:
(A) a place
at or near the place that was the employee’s overseas employment place at the
outbound travel time; and
(B) another
place;
(ii) the transport is for
the spouse, or a child, of the employee, being a spouse or a child of the
employee who does not live with the employee at the place that was the
employee’s overseas employment place at the outbound travel time, and the
transport is between:
(A) a place
where the spouse or child, as the case may be, meets the employee; and
(B) another
place;
(g) in the case of an expense payment
fringe benefit—the recipients expenditure is not in respect of remote area
holiday transport;
(h) in the case of a property fringe
benefit—the recipients property is not in respect of remote area holiday
transport;
(j) in the case of a residual fringe benefit—the
recipients benefit is not in respect of remote area holiday transport;
(k) if the transport is for the
spouse, or a child, of the employee—the transport is not provided to enable the
spouse or child to accompany the employee:
(i) while the employee is
undertaking travel in the course of performing the duties of his or her
employment; and
(ii) where the
circumstances referred to in subsection 26‑30(2) of the Income Tax
Assessment Act 1997 do not apply; and
(m) 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;
the following provisions have effect:
(n) the fringe benefit shall be taken
to be in respect of overseas employment holiday transport;
(p) the benchmark travel amount in
relation to the family member in relation to the fringe benefit is:
(i) if either of the
following sub‑subparagraphs apply:
(A) the
employee was entitled to be provided with home country holiday transport
assistance pursuant to the provisions of an industrial instrument relating to
the employment of the employee;
(B) there
was a custom in the industry in which the employee was employed such that the
employee could have been provided with home country holiday transport
assistance by the employer;
the sum of:
(C) the
return economy air fare in respect of the air service, or the total of the
return economy air fares in respect of the air services, to which that home
country holiday transport assistance relates; and
(D) the
expenses that could reasonably be expected to have been incurred in respect of
the family member (whether by way of airport transfer, meals, accommodation,
accident insurance, airport or departure tax, passenger movement charge, or any
similar matter or thing) in accordance with the entitlement or custom to which
that home country holiday transport assistance relates and in connection with
travelling on that return service or those return services;
(ii) if subparagraph (i)
does not apply but the following conditions are satisfied in respect of one or
more return scheduled passenger air services:
(A) the
service was operated, at or about the outbound travel time, between eligible places;
(B) the
nature of the service is such that it would not be unreasonable for the family
member to travel on the service;
the lowest of the
return economy air fares for those services;
(iii) if neither subparagraph (i)
nor (ii) applies but the following conditions are satisfied in respect of one
or more combinations of return scheduled passenger air services:
(A) the
combination was operated at or about the outbound travel time and would have
enabled a person to travel between eligible places;
(B) the
nature of the combination, and of the services in the combination, is such that
it would not be unreasonable for the family member to travel on the services;
the total of the
economy return air fares for the combination that has the lowest total of
economy return air fares; or
(iv) in any other case—an
amount equal to the lowest return fare, or combination of return fares, in
respect of travel services in respect of which the following conditions are
satisfied:
(A) the
service, or combination of services, was operated at or about the outbound
travel time and would have enabled a person to travel between eligible places;
(B) the
nature of the service, or the nature of the combination and of the services
included in the combination, is such that it would not be unreasonable for the
family member to travel on the service or services;
(q) if the transport for a particular
family member consists wholly of transport:
(i) in respect of a
holiday taken by the family member; and
(ii) by the most direct practicable
route between:
(A) a place
at or near the place that was the employee’s overseas employment place at the
outbound travel time; and
(B) a place
in the country in which the employee’s usual place of residence during the
overseas posting period was located;
the fringe benefit shall be taken to be a home country
fringe benefit in relation to the holiday for the family member.
(2) For the purposes of the application of
this section in relation to a benefit provided in respect of the employment of
an employee:
(a) a reference in this section to
travel, or to the operation of a service or services, between eligible places
is a reference to travel, or the operation of a service or services, between:
(i) a place at or near the
place that was the employee’s overseas employment place at the outbound travel
time; and
(ii) a place at or near the
usual place of residence of the employee during the overseas posting period;
and
(b) a reference in this section to the
provision of home country holiday transport assistance to the employee is a
reference to:
(i) the making of payments
in discharge or reimbursement of expenditure incurred by a person in respect of
a return scheduled passenger air service, or combination of return scheduled
passenger air services, operated by a carrier or carriers between eligible
places; or
(ii) the provision of
transport on such a service or services.
143D
Employment interviews and selection tests
For the
purposes of this Act, where:
(a) any of the following benefits is
provided in, or in respect of, a year of tax to an employee of an employer in
respect of his or her employment:
(i) a car benefit relating
to a particular car where the application or availability of the car is in
respect of the provision of transport;
(ii) an expense payment
benefit where the recipients expenditure is in respect of the provision of
transport, or meals or accommodation in connection with transport;
(iii) a property benefit
where the recipients property consists of meals in connection with transport;
(iv) a residual benefit
where the recipients benefit consists of the provision of transport or
accommodation in connection with transport;
(b) the transport, meals or
accommodation is for the employee;
(c) the transport is required solely
because the employee is required to attend an interview or selection test in
connection with an application by the employee for:
(i) employment;
(ii) promotion; or
(iii) job transfer; and
(d) the benefit is not provided under
a non‑arm’s length arrangement;
the benefit shall be taken to be in respect of an
employment interview or selection test.
143E
Work‑related medical examinations, work‑related medical screening,
work‑related preventative health care, work‑related counselling,
migrant language training
For the purposes of this Act, 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:
(i) a car benefit relating
to a particular car where the application or availability of the car is in
respect of the provision of transport;
(ii) an expense payment
benefit where the recipients expenditure is in respect of the provision of
transport, or meals or accommodation in connection with transport;
(iii) a property benefit
where the recipients property consists of meals in connection with transport;
(iv) a residual benefit
where the recipients benefit consists of the provision of transport or
accommodation in connection with transport;
(b) the transport is required solely
because:
(i) the employee attends:
(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
(E) migrant
language training of the employee; or
(ii) an associate of the
employee attends:
(A) work‑related
counselling of the associate; or
(B) migrant
language training of the associate;
(c) if subparagraph (b)(i)
applies—the transport, meals or accommodation is for the employee; and
(d) if subparagraph (b)(ii)
applies—the transport, meals or accommodation is for the associate of the
employee;
the benefit shall be taken to be associated with:
(e) a work‑related medical
examination of the employee;
(f) work‑related medical
screening of the employee;
(g) work‑related preventative
health care of the employee;
(h) work‑related counselling of
the employee or of the associate of the employee; or
(j) migrant language training of the
employee or of the associate of the employee;
as the case requires.
144
Deemed payment
For the purposes of Part III, any
conduct by a person that effects or results in a discharge or extinction of an
obligation of another person to pay an amount to a third person shall be taken
to constitute the payment of the amount by the first‑mentioned person.
145
Consideration not in cash
(1) For the purposes of this Act, where, upon
any transaction, any consideration is given by way of the provision of property
(other than money), the money value of that consideration shall be deemed to
have been paid or given.
(2) Subsection (1) does not apply for
the purpose of determining whether an act or thing constitutes the provision of
a benefit to which a particular provision of this Act applies.
146
Amounts to be expressed in Australian currency
For the purposes of this Act, all
amounts and values shall be expressed in terms of Australian currency.
147
Obligation to pay or repay an amount
For the purposes of this Act, a person
shall be deemed to be under an obligation to pay or repay an amount
notwithstanding that the amount is not due for payment or repayment.
148
Provision of benefits
(1) A reference in this Act to the provision
of a benefit to a person in respect of the employment of an employee is a
reference to the provision of such a benefit:
(a) whether or not the benefit is also
provided in respect of, by reason of, by virtue of, or for or in relation
directly or indirectly to, any other matter or thing;
(b) whether the employment will occur,
is occurring, or has occurred;
(c) whether or not the benefit is
surplus to the needs or wants of the recipient;
(d) whether or not the benefit is also
provided to another person;
(e) whether or not the benefit is, to
any extent, offset by any inconvenience or disadvantage;
(f) whether or not the benefit is
provided or used, or required to be provided or used, in connection with that
employment;
(g) whether or not the provision of
the benefit is, or is in the nature of, income; and
(h) whether or not the benefit is
provided as a reward for services rendered, or to be rendered, by the employee.
(2) Where, in respect of the employment of an
employee, a benefit is provided by a person (in this subsection referred to as
the provider) to a person other than:
(a) the employee; or
(b) a person who, but for this
subsection, is an associate of the employee;
under an arrangement between:
(c) the provider, the employer or an
associate of the employer; and
(d) the employee or a person who, but
for this subsection, is an associate of the employee;
the recipient of the benefit shall be deemed to be an
associate of the employee for the purposes of the application of this Act in
relation to the provision of that benefit.
(3) Where:
(a) but for the prohibition on the
doing of an act or thing, the doing of the act or thing would result in the
provision of a benefit in respect of the employment of a person by another
person (in this subsection referred to as the provider); and
(b) the prohibition is not consistently
enforced;
the provider shall be deemed, for the purposes of this
Act, to have provided that benefit in respect of that employment.
(4) For the purposes of this Act, a benefit
that is received or obtained by an employee, or by an associate of an employee,
in respect of the employment of the employee shall be deemed to have been
provided by the provider in respect of that employment.
(5) A provision of this Act that deems a
benefit to have been provided in particular circumstances shall not, by
implication, limit the meaning of the expression provide when
used in relation to the provision of a benefit in other circumstances.
149
Provision of benefit during a period
(1) For the purposes of this Act, a benefit
shall be taken to be provided during a period if, and only if, the benefit:
(a) is provided, or subsists, during a
period of more than 1 day; and
(b) is not deemed by a provision of
this Act to be provided at a particular time or on a particular day.
(2) For the purposes of subsection (1),
but without limiting the generality of that subsection, a benefit constituted
by the subsistence of a lease or licence in respect of property, or a benefit
in respect of a loan, shall be taken to be provided during the period when the
lease or licence subsists or while a person is under an obligation to repay the
whole or any part of the loan, as the case may be.
149A
What is a GST‑creditable benefit?
(1) A benefit provided in respect of the
employment of an employee is a GST‑creditable benefit if
either of the following is or was entitled to an input tax credit under
Division 111 of the A New Tax System (Goods and Services Tax) Act 1999
because of the provision of the benefit:
(a) the person who provided the
benefit;
(b) a person who is or was a member of
the same GST group (as defined in that Act) as the person who provided the
benefit.
(2) A benefit provided in respect of the
employment of an employee is also a GST‑creditable benefit
if:
(a) the benefit consists of:
(i) a thing (as defined in
the A New Tax System (Goods and Services Tax) Act 1999); or
(ii) an interest in such a
thing; or
(iii) a right over such a
thing; or
(iv) a personal right to
call for or be granted any interest in or right over such a thing; or
(v) a licence to use such a
thing; or
(vi) any other contractual
right exercisable over or in relation to such a thing; and
(b) the thing was acquired (within the
meaning of that Act) or imported (within the meaning of that Act) and either of
the following is or was entitled to an input tax credit under that Act because
of the acquisition or importation:
(i) the person who
provided the benefit;
(ii) a person who is or was
a member of the same GST group (as defined in that Act) as the person who
provided the benefit.
150
Credit cards
For the purposes of this Act, where, in
respect of the employment of an employee of an employer, the employee or an
associate of the employee uses a credit card issued by a third person to, or to
an associate of, the employer to obtain the provision of a benefit on credit
from a fourth person, the following provisions have effect:
(a) the fourth person shall be taken
to have provided the benefit, in respect of that employment, under an
arrangement between:
(i) the employer or the
associate of the employer, as the case requires; and
(ii) the fourth person;
(b) where the employer or the
associate of the employer, as the case may be, incurred expenditure to the
third person under an arm’s length transaction in respect of the provision of
the benefit—the employer or the associate of the employer, as the case
requires, shall be taken to have incurred that expenditure to the fourth person
under an arm’s length transaction.
151
Employee performing services for person other than employer
Where the employer of an employee
contracts with another person (in this section referred to as the
purchaser) for the employee to perform services for the purchaser, the
following provisions have effect for the purposes of the application of section 54
and the definition of board meal in subsection 136(1) in relation
to the provision of a meal, or food or drink, to the employee in respect of, by
reason of, by virtue of, or for or in relation directly or indirectly to, the
performance of those services:
(a) premises of the purchaser shall be
taken to be eligible premises of the employer;
(b) a meal, or food or drink, provided
by the purchaser to the employee shall be taken to have been provided by the
employer.
152A
Recurring fringe benefit declaration
Recipient may make recurring fringe benefit declaration
(1) If a person is provided with a benefit
(the declaration benefit), the person may make a recurring
fringe benefit declaration in relation to the declaration
benefit.
Expense payment fringe benefits covered by declaration
(2) If the recurring fringe benefit
declaration covers another benefit (the later benefit) that is an
expense payment fringe benefit:
(a) the recurring fringe benefit
declaration is taken to have been made under paragraph 24(1)(e) in respect of the
recipients expenditure for that benefit; and
(b) the gross deduction
in paragraph 24(1)(b) in relation to the later benefit is taken to be the
amount worked out using the formula:
where:
Gross expenditure (later
benefit) is the gross expenditure mentioned in paragraph
24(1)(b) in relation to the later benefit.
Deductible proportion of
declaration benefit is the deductible proportion of the
declaration benefit as worked out under subsection (9).
Note: The gross deduction is
used as component GD in the formula in paragraph 24(1)(ba).
Property fringe benefits covered by declaration
(3) If the recurring fringe benefit
declaration covers another benefit (the later benefit) that is a
property fringe benefit:
(a) the recurring fringe benefit
declaration is taken to have been made under paragraph 44(1)(c) in respect of
the recipients property for that benefit; and
(b) the gross deduction
in paragraph 44(1)(b) in relation to the later benefit is taken to be the
amount worked out using the formula:
where:
Gross expenditure (later
benefit) is the gross expenditure mentioned in paragraph
44(1)(b) in relation to the later benefit.
Deductible proportion of
declaration benefit is the deductible proportion of the
declaration as worked out under subsection (9).
Note: The gross deduction is
used as component GD in the formula in paragraph 44(1)(ba).
Residual fringe benefits covered by declaration
(4) If the recurring fringe benefit
declaration covers another benefit (the later benefit) that is a
residual fringe benefit:
(a) the recurring fringe benefit
declaration is taken to have been made under paragraph 52(1)(c) in respect of
the recipients benefit for that benefit; and
(b) the gross deduction
in paragraph 52(1)(b) in relation to the later benefit is taken to be the
amount worked out using the formula:
where:
Gross expenditure (later
benefit) is the gross expenditure mentioned in paragraph
52(1)(b) in relation to the later benefit.
Deductible proportion of
declaration benefit is the deductible proportion of the
declaration benefit as worked out under subsection (9).
Note: The gross deduction is
used as component GD in the formula in paragraph 52(1)(ba).
(5) The declaration must be in a form
approved in writing by the Commissioner and be made, and given to the employer,
by the declaration date for the employer for the FBT year in which the
declaration benefit is provided.
What benefit declaration covers
(6) The declaration covers all benefits that
are identical to the declaration benefit received by the person before the
earlier of:
(a) the time when the person revokes
the declaration; and
(b) the end of 5 years starting when
the declaration is made.
(7) The declaration does not cover a benefit
if the deductible proportion of the benefit is more than 10 percentage points
less than the deductible proportion of the declaration benefit.
(8) If a taxpayer makes a declaration for a
benefit that is an identical benefit to a benefit covered by an earlier
declaration, the earlier declaration is revoked.
Meaning of deductible
proportion
(9) The deductible proportion
of a benefit is the percentage worked out using the formula:
where:
gross deduction means the gross
deduction mentioned in whichever of paragraph 24(1)(b), 44(1)(b) or 52(1)(b)
applied to the benefit.
gross expenditure means the gross
expenditure mentioned in whichever of paragraph 24(1)(b), 44(1)(b) or 52(1)(b)
applied to the benefit.
Meaning of identical
(10) A benefit is identical to
another benefit if the benefits are the same in all respects except for any
differences:
(a) that are minimal or insignificant;
or
(b) that relate to the value of the
benefits; or
(c) in the deductible proportion of
the benefits.
152B
Employer may elect 50/50 split method for entertainment facility leasing costs
If:
(a) the taxable value of one or more
fringe benefits of an employer for an FBT year is attributable, in whole or in
part, to entertainment facility leasing expenses incurred by the employer in
the FBT year; and
(b) the employer elects that this
section applies for the FBT year;
then:
(c) the aggregate fringe benefit
amount for the employer for the FBT year is to be reduced by so much of the
total taxable value of all fringe benefits as is attributable to entertainment
facility leasing expenses; and
(d) the aggregate fringe benefit
amount for the employer for the FBT year is to then be increased by 50% of the
total of entertainment facility leasing expenses incurred by the employer in
the FBT year (including expenses not taken into account under paragraph (a)).
Note: The effect of this is that the employer’s aggregate
fringe benefits amount (see section 5C) for the FBT year
will include 50% of the entertainment facility leasing expenses incurred by the
employer for the FBT year.
153
Residual benefits to include provision of property in certain circumstances
For the purposes of this Act, where:
(a) a person carries on a business
that consists of, or includes, the entering into of contracts for the provision
of property together with the provision of residual benefits;
(b) the person provides property
(other than food or drink) and residual benefits to another person;
(c) but for this section, the
provision would constitute a property benefit and a residual benefit; and
(d) the provision is made in the same,
or substantially the same, circumstances as a provision of the kind mentioned
in paragraph (a);
the provision of the residual benefit shall be taken to
include the provision of the property and the provision of the property shall
not be taken to constitute a property benefit.
154
Creation of property
For the purposes of this Act, where a
person does anything that results in the creation of property in another
person, the
first‑mentioned person shall be deemed to have provided that property to
the other person at the time when the property comes into existence.
155
Use of property before title passes
(1) Subject to subsection (2), where,
under a transaction, the use of property is obtained by a person for a period
at the end of which the title to the property will or may pass to the person,
the property shall be deemed, for the purposes of this Act, to have been
provided to the person at the time when the use of the property was obtained by
the person.
(2) Property shall not be taken to have been
provided to a person by virtue of subsection (1) if the period for which
the person has the use of the property terminates without the title to the
property passing to the person, and nothing in section 74 prevents the
amendment of an assessment for the purpose of giving effect to this subsection.
156
Supply of electricity or gas through reticulation system
For the purposes of this Act, the supply
of electricity or gas through a reticulation system shall be deemed not to
constitute the provision of property.
157 Christmas
Island and Cocos (Keeling) Islands
(1) A reference in this Act to an internal
Territory includes a reference to the Territory of Christmas Island and to the Territory
of Cocos (Keeling) Islands.
(2) For the purposes of this Act, a location
in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands
shall be taken not to be situated in, or adjacent to, an eligible urban area.
158
Related companies
(1) For the purposes of this Act, a company
shall be taken to be related to another company if:
(a) one of the companies is a
subsidiary of the other company; or
(b) each of the companies is a
subsidiary of the same company.
(2) For the purposes of this section, a
company (in this subsection referred to as the subsidiary company)
shall be taken to be the subsidiary of another company (in this subsection
referred to as the holding company) if:
(a) all the shares in the subsidiary
company are beneficially owned by:
(i) the holding company;
(ii) a company that is, or
2 or more companies each of which is, a subsidiary of the holding company; or
(iii) the holding company
and a company that is, or 2 or more companies each of which is, a subsidiary of
the holding company; and
(b) there is no agreement in force by
virtue of which any person is in a position to affect rights of the holding
company or of a subsidiary of the holding company in relation to the subsidiary
company.
(3) For the purposes of this section, where a
company is a subsidiary of another company (including a company that is such a
subsidiary by virtue of another application or other applications of this
subsection), every company that is a subsidiary of the first‑mentioned
company shall be taken to be a subsidiary of that other company.
(4) For the purposes of subsection (2),
a person shall be taken to be in a position to affect any rights of a company
in relation to another company if that person has a right, power or option
(whether by virtue of any provision in the constituent document of either of
those companies or by virtue of any agreement or instrument or otherwise) to
acquire those rights or do an act or thing that would prevent the first‑mentioned
company from exercising those rights for its own benefit or receiving any
benefits accruing by reason of those rights.
159
Associates and relatives
(2) For the purposes of this Act, but without
limiting the generality of the expression associate:
(a) a company that is related to
another company shall be deemed to be an associate of that other company;
(b) the Commonwealth shall be deemed
to be an associate of each authority of the Commonwealth;
(c) an authority of the Commonwealth
shall be deemed an associate of each other authority of the Commonwealth;
(d) a State shall be deemed to be an
associate of each authority of the State;
(e) an authority of a State shall be
deemed to be an associate of each other authority of the State;
(f) a Territory shall be deemed to be
an associate of each authority of the Territory; and
(g) an authority of a Territory shall
be deemed to be an associate of each other authority of the Territory.
(3) Where a person is an associate of another
person by virtue of paragraph (2)(b), (c), (d), (e), (f) or (g), Part III
has effect as if those persons were companies and were related to each other.
(4) For the purposes of this Act,
section 318 of the Income Tax Assessment Act 1936 has effect as if
“a partnership in which the primary entity is a partner” were omitted from
paragraphs (1)(b) and (2)(a) of that section and “a partnership in which
the primary entity is or was a partner (whether or not the partnership still
exists)” were substituted.
160
Continuity of employment where business disposed of etc.
(1) Where:
(a) a person (in this subsection
referred to as the former employer) disposes of the whole or a
part of a business or undertaking to another person (in this subsection
referred to as the new employer); and
(b) an arrangement relating to the
disposal provides for the new employer or an associate of the new employer to
provide or to continue to provide, or to arrange for the provision or continued
provision of, benefits in respect of the employment of a person (in this
subsection referred to as the former employee) by the former
employer;
the following provisions have effect:
(c) this Act applies, in relation to
any benefit so provided or continued to be provided, as if the employment of
the former employee by the former employer were, instead, employment by the new
employer;
(d) where the arrangement provides for
the new employer or an associate of the new employer to assume, or arrange for
the assumption of, the rights of:
(i) a lender under a loan;
(ii) a lessor under a
lease; or
(iii) a licensor under a
licence;
being a loan, lease or licence,
as the case may be, granted in respect of the employment of the former employee
by the former employer, this Act has effect, after the assumption of those
rights, as if the employment of the former employee by the former employer
were, instead, employment by the new employer and the loan, lease or licence
had been granted in respect of that employment by the person who assumed the
rights.
(2) Where, for any reason, including:
(a) the formation or dissolution of a
partnership; or
(b) a variation in the constitution of
a partnership, or in the interests of the partners;
a change has occurred in the ownership of, or in the
interests of persons in, property constituting the whole or a part of the
assets of a business and the person, or one or more of the persons, who owned
the property before the change has or have an interest in the property after
the change, this Act has effect as if the persons who owned the property before
the change had, on the day on which the change occurred:
(c) disposed of the whole of that
business to the person, or all of the persons, by whom the property is owned
after the change; and
(d) disposed of the whole of the
property to the person, or all of the persons, by whom the property is owned
after the change for an amount equal to the notional value of the property.
(3) For the purposes of this Act, the trustee
or trustees from time to time of a trust, being an employer or employers, shall
be deemed to be one employer.
161
Business journeys in car
(1) For the purposes of this Act, where:
(a) during a particular period during
a day, 2 or more journeys are undertaken in a car; and
(b) each of the journeys in the car
during that period is a business journey;
the journeys referred to in paragraph (b) shall be
deemed to constitute a single journey.
162
Holding of car
(1) In this Act, unless the contrary
intention appears, a reference to a car held by a person is a reference to:
(a) a car owned by the person;
(b) a car leased to the person; or
(c) a car otherwise made available to
the person by another person.
(2) For the purposes of the application of
section 10 in relation to car fringe benefits in relation to an employer
in relation to a particular car, the car shall be taken to be held by a
particular person if, and only if, the car is held by the person for use in
providing those fringe benefits (whether or not the car was used for any other
purpose while it was so held).
(3) For the purposes of the application of
sections 19, 24, 44 and 52 in relation to a loan fringe benefit, expense
payment fringe benefit, property fringe benefit or residual fringe benefit, as
the case requires, a car shall be taken to be held by the recipient of the
fringe benefit if, and only if, the car is owned or leased by the recipient for
use in the course of producing assessable income of the recipient (whether or
not the car was used for any other purpose while it was so owned or leased).
(4) A reference in this Act to a period
during which a car was held by a person is a reference to a period during which
the car was continuously held by the person.
162B
When car used for the purpose of producing assessable income
For the purposes of the application of
sections 19, 24, 44 and 52 in relation to a loan fringe benefit, expense
payment fringe benefit, property fringe benefit or residual fringe benefit, as
the case requires, the question whether a car is used by a person for the
purposes of producing assessable income shall be determined in the same manner
as the question whether property is used by a taxpayer for the purpose of
producing assessable income is determined under the Income Tax Assessment
Act 1997.
162C
Holding period of car
Unless the contrary intention appears, a
reference in this Act to a period in a year of tax during which a person held a
car is a reference to the period that:
(a) commences on whichever of the
following times is applicable:
(i) if the person held the
car at the time of commencement of the year of tax—that time;
(ii) in any other case—the
time in the year of tax when the person commenced to hold the car; and
(b) ends at whichever of the following
times is applicable:
(i) if the person
continued to hold the car until the time of the end of the year of tax—that
time;
(ii) in any other case—the
time in the year of tax when the person ceased to hold the car.
162F
Reasonable estimate of number of business kilometres
For the purposes of this Act, the number
of kilometres that represents a reasonable estimate of the number of business
kilometres applicable to a car held by a person during a period in a year of
tax shall be determined having regard to all relevant matters including, but
without limiting the generality of the foregoing:
(a) any log book records, odometer
records or other records maintained by or on behalf of the person; and
(b) any variations in the pattern of
use of the car.
162G
Log book year of tax
(1) For the purposes of the application of
section 10 in relation to a car fringe benefit in relation to an employer
in relation to a particular car while it was held by a particular person (in
this subsection called the provider) during a particular period
(in this subsection called the holding period) in a year of tax
(in this subsection called the current year of tax), the current
year of tax is a log book year of tax of the employer in relation to the car
if, and only if:
(a) none of the previous 4 years was a
log book year of tax of the employer in relation to the car;
Note: This paragraph will apply if it is the first year
that the employer uses the cost basis method.
(b) the employer elects that the
current year of tax be treated as a log book year of tax of the employer in
relation to the car; or
(h) the Commissioner causes a notice
in writing to be served on the employer before the commencement of the current
year of tax requiring the employer to treat the current year of tax as a log
book year of tax of the employer in relation to the car.
(2) For the purposes of the application of
sections 19, 24, 44 and 52 in relation to a loan fringe benefit, expense
payment fringe benefit, property fringe benefit or residual fringe benefit, as
the case requires, in relation to an employer in relation to a particular car
held by the recipient of the fringe benefit during a particular period (in this
subsection called the holding period) in a year of tax (in this
subsection called the current year of tax), the current year of
tax is a log book year of tax of the recipient in relation to the car if, and
only if:
(a) none of the previous 4 years was a
log book year of tax of the employer in relation to the car;
(b) the employer elects that the
current year of tax be treated as a log book year of tax of the recipient in
relation to the car; or
(h) the Commissioner causes a notice
in writing to be served on the employer before the commencement of the current
year of tax requiring the employer to treat the current year of tax as a log
book year of tax of the recipient in relation to the car.
(3) An election under this section is to be
in writing.
162H
Applicable log book period
(1) For the purposes of the application of
section 10 in relation to a car fringe benefit in relation to an employer
in relation to a car while it was held by a particular person during a
particular period (in this subsection called the holding period)
starting or ending in a year of tax, a reference to the applicable log book
period is a reference to:
(a) if the holding period is a period
of less than 12 weeks—the holding period; or
(b) in any other case—a continuous
period of not less than 12 weeks that begins and ends during the holding
period.
(2) For the purposes of the application of
sections 19, 24, 44 and 52 in relation to a loan fringe benefit, expense
payment fringe benefit, property fringe benefit or residual fringe benefit, as
the case requires, in relation to an employer in relation to a car held by the
recipient of the fringe benefit during a particular period (in this subsection
called the holding period) starting or ending in a year of tax, a
reference to the applicable log book period is a reference to:
(a) if the holding period is a period
of less than 12 weeks—the holding period; or
(b) in any other case—a continuous
period of not less than 12 weeks that begins and ends during the holding
period.
(3) The applicable log book period must be
specified in the log book records for the period at, or as soon as possible
after, the end of the period.
162K
Replacement cars—car fringe benefits
(1) This section has effect for the purposes
of the application of section 10 in relation to car fringe benefits in
relation to an employer in relation to a year of tax (in this section called
the current year of tax) or a subsequent year of tax.
(2) Where the employer nominates a particular
car (in this section called the replacement car) as having
replaced another car (in this section called the original car)
with effect from a specified date in the current year of tax:
(a) the original car shall be treated,
with effect from that date, as a different car; and
(b) the replacement car shall be
treated, with effect from that date, as the same car as the original car.
(2A) A nomination shall be made in writing on or
before the declaration date for the current year of tax.
(3) A nomination shall specify the make,
model and registration number (if any) of the original car and of the
replacement car.
(4) This section does not apply for the
purposes of the application of subsection 10(5) or section 11 or 12.
162L
Replacement cars—otherwise deductible provisions
(1) This section has effect for the purposes
of the application of sections 19, 24, 44 and 52 in relation to a loan
fringe benefit, expense payment fringe benefit, property fringe benefit or
residual fringe benefit, in relation to an employer in relation to a year of
tax (in this section called the current year of tax) or a
subsequent year of tax.
(2) Where the employer nominates a particular
car (in this section called the replacement car) as having
replaced another car (in this section called the original car)
with effect from a specified date in the current year of tax:
(a) the original car shall be treated,
with effect from that date, as a different car; and
(b) the replacement car shall be
treated, with effect from that date, as the same car as the original car.
(2A) A nomination shall be made in writing on or
before the declaration date for the current year of tax.
(3) A nomination shall specify the make,
model and registration number (if any) of the original car and of the
replacement car.
162N
Registration of motor vehicle
For the purposes of this Act, a motor
vehicle shall be taken to be registered in a particular place if it may be
driven on a public road in that place without contravening the law in force in
that place.
163
Application of Act
(1) This Act extends to every external
Territory and, except so far as the contrary intention appears, to acts,
omissions, matters and things outside Australia, whether or not in a foreign
country.
(2) Except where otherwise expressly
provided, this Act extends to matters and things whether occurring before or
after the commencement of this Act.
(3) This Act binds the Crown in right of each
of the States, of the Northern Territory and of Norfolk Island.
(4) In subsection (1), a reference to
this Act includes a reference to the Taxation Administration Act 1953 to
the extent to which that Act relates to this Act.
164
Residence
(1) For the purposes of this Act, a person
shall be taken to have been a non‑resident at a particular time if the
person was not a resident of Australia at that time.
(2) For the purposes of this Act, a person
shall be taken to have been a resident of Australia at a particular time if:
(a) in the case of a natural person:
(i) the person resided in Australia
at that time; or
(ii) except in the case where
the Commissioner is satisfied that that person’s permanent place of residence
at that time was outside Australia—the person was domiciled in Australia at
that time;
(b) in the case of an incorporated
company:
(i) the company was
incorporated in Australia at that time; or
(ii) at that time the
company carried on business in Australia and:
(A) had its
central management and control in Australia; or
(B) had its
voting power controlled by shareholders who were residents of Australia; or
(c) in the case of a partnership or an
unincorporated company—any member of the partnership or company was a resident
of Australia at that time by virtue of paragraph (a) or (b).
165
Partnerships
(1) Subject to this section, this Act applies
to a partnership as if the partnership were a person.
(2) Where, but for this subsection, an
obligation would be imposed on a partnership by virtue of the operation of subsection (1),
the obligation is imposed on each partner, but may be discharged by any of the
partners.
(3) Where, by virtue of the operation of subsection (1),
an amount is payable under this Act by a partnership, the partners are jointly
and severally liable to pay that amount.
(4) Where, by virtue of the operation of subsection (1),
an offence against this Act is deemed to have been committed by a partnership,
that offence shall be deemed to have been committed by each of the partners.
(5) In a prosecution of a person for an
offence by virtue of this section, it is a defence if the person proves that
the person:
(a) did not aid, abet, counsel or
procure the act or omission by virtue of which the offence is deemed to have
been committed; and
(b) was not in any way, by act or
omission, directly or indirectly, knowingly concerned in, or party to, the act
or omission by virtue of which the offence is deemed to have been committed.
(6) A reference in this section to this Act
includes a reference to Part III of the Taxation Administration Act
1953 to the extent to which that Part of that Act relates to this Act.
166
Unincorporated companies
(1) Subject to this section, this Act applies
to an unincorporated company as if the company were a person.
(2) Where, but for this subsection, an
obligation would be imposed on an unincorporated company by virtue of the
operation of subsection (1), the obligation is imposed on each member of
the committee of management of the company, but may be discharged by any of
those members.
(3) Where, by virtue of the operation of subsection (1),
an offence against this Act is deemed to have been committed by an
unincorporated company, that offence shall be deemed to have been committed by
each member of the committee of management of the association.
(4) In a prosecution of a person for an
offence by virtue of this section, it is a defence if the person proves that
the person:
(a) did not aid, abet, counsel or
procure the act or omission by virtue of which the offence is deemed to have
been committed; and
(b) was not in any way, by act or
omission, directly or indirectly, knowingly concerned in, or party to, the act
or omission by virtue of which the offence is deemed to have been committed.
(5) A reference in this section to this Act
includes a reference to Part III of the Taxation Administration Act
1953 to the extent to which that Part of that Act relates to this Act.
167
Offences by government bodies
Notwithstanding anything in this Act or
any other Act, a government body shall not be taken to be guilty of an offence
against this Act.