QANTAS AIRWAYS LIMITED v FC of T

Members:
Robert Benjamin J
FD O'Loughlin SM

Tribunal:
Administrative Appeals Tribunal, Melbourne

MEDIA NEUTRAL CITATION: [2014] AATA 316

Decision date: 20 May 2014

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Robert Benjamin J and FD O'Loughlin (Senior Member)

20 May 2014

Are airport car parking facilities commercial parking stations?

1. This is a dispute about the use of airport car parking facilities in determining the level of FBT^[1] Fringe Benefits Tax. payable by Qantas^[2] The Applicant. in the context of the employee parking provided by Qantas and its associates for their employees at major airports.

2. In the 2007 to 2010 FBT years^[3] An FBT year being a 12 month period ending on 31 March in a calendar year. Qantas and its associates provided car parking facilities to their employees whose primary places of work were at or very near the Airports.^[4] The Adelaide, Alice Springs, Brisbane, Cairns, Canberra, Gold Coast, Melbourne, Perth, Sydney and Townsville airports. With the exception of the Canberra Airport, each of the Airports had either or both long term and/or short term car parking facilities that were available for use upon payment of fees without further restriction as to eligibility of user. Use of the Canberra Airport car park was restricted to airline travellers and meeters and greeters of airline travellers. There was no other car parking facility within the one kilometre radius of the Airports that qualified as commercial parking stations within the meaning of that term as defined in s 136(1) of the Assessment Act^[5] Fringe Benefits Tax Assessment Act 1986 (Cth). in the 2007 to 2010 FBT years.

3. Qantas contends that the short and long term car parks at the Airports were not commercial parking stations primarily because those car parks were not provided principally, or primarily, for use by commuters driving their cars to and from work. Qantas has alternate contentions that, for some of the Airports, the fees charged were such that they were not car parks intended for all-day parking and/or, again for some of the Airports, the lowest fees charged for all-day parking were less than the car parking threshold. Qantas also contends that the Canberra Airport car park was not a commercial parking station for the additional reason that it was only available for use by airline travellers and meeters and greeters of airline travellers.

4. As a consequence Qantas contends that FBT is not payable by it in respect of the facilities it allows its employees to use to park their cars at the Airports.

5. The Commissioner^[6] The Respondent. disagreed with Qantas and that disagreement led to the present dispute.

6. If the short and long term car parks at the Airports are not commercial parking stations Qantas succeeds in its application to the Tribunal.

The disputed taxable amounts

7. For the 2007 to 2010 FBT years Qantas self-assessed its taxable amounts under the Assessment Act in respect of car parking facilities it provided to its employees at the Airports. The taxable amounts and the years to which they relate were:

• (a) 2007 - $1,581,683;
• (b) 2008 - $1,467,641;
• (c) 2009 - $1,397,127; and
• (d) 2010 - $1,660,046.

8. In circumstances not disclosed to the Tribunal, Qantas now contends that these amounts were not taxable as it had originally accepted.

The facts

9. The parties have prepared an agreed statement of facts. That statement is reproduced in full in the Appendix to these reasons.

10. An observation needs to be made about that statement. The parties agreed that in 2007 and again in 2010 Qantas sought and obtained valuations of the car parking benefits its employees enjoyed. What was agreed was that valuations had been sought and obtained, not what the value of the benefits the employees enjoyed was. The author of the valuations was not called as a witness, his qualifications to give expert valuation opinion evidence were not scrutinised nor were the factual matters which provided the foundation for the opinions said to have been formed. In those circumstances, the Tribunal did not have sufficient evidence before it to make any findings as to the value of the car parking benefits, if any, that were enjoyed by Qantas's employees and Qantas's associates' employees. To the extent Qantas urges conclusions that are wholly or principally based upon acceptance of the valuations it has obtained, then those conclusions cannot be reached.

11. Subject to this observation the Tribunal finds that the facts are as set out in the agreed statement of facts.

12. In addition the Tribunal finds as facts as follows referred to in the materials filed to support contentions made in submissions and/or the submissions.

• (a) The charges for use of the Woolworths car park at Woolloomooloo in Sydney in July 2013 were:^[7] The printed extract from the website http://www.news.com.au/money/cost-of-living/woolworths-charges-65-for-more-than-an-hour-of-parking/story-fnagkbpv-1226673853022: Attachment “3” to Qantas’s submissions.
  

  0-1 hour	Free
  1-2 hours	$65
  2-3 hours	$95
  3+ hours	$125
  Overnight	$125

• (b) As at 21 November 2013 the Westfield Shopping Centre in Geelong charged $24 for parking for 6-7 hours.^[8] The printed extract from the Westfield website at http://www.westfield.com.au/geelong/info#parking: Attachment “4” to Qantas’s submissions.
• (c) As at 21 November 2013 the Westfield Shopping Centre in Doncaster charged $15 for parking for 6-6.5 hours.^[9] The printed extract from the Westfield website at http://www.westfield.com.au/doncaster/info#parking: Attachment “5” to Qantas’s submissions.
• (d) In November 2013 the Palace Cinema in Church Street, Brighton, charged $12 for parking for 6 hours or more.^[10] The printed extract from the Palace Cinemas website at http://www.palacecinemas.com.au/cinemas/dendy/: Attachment “6” to Qantas’s submissions.
• (e) As at 21 November 2013 the Monash Medical Centre in Clayton, charged $22 for parking for 6 hours.^[11] The printed extract from the MonashHealth website at http://www.monashhealth.org/page/Patients__Visitors/Visitor_Car_Parking/Monash_Medical_Centre_Clayton/: Attachment “7” to Qantas’s submissions.
• (f) As at 21 November 2013 the Berwick campus of Monash University located charged $8 for all day parking and the Caulfield campus charged $13.20 for 6 hours parking in the multi-level car park.^[12] The printed extract from the Monash University website at http://www.monash.edu.au/people/transport-parking/permits/metered-free/: Attachment “8” to Qantas’s submissions.
• (g) In the 2007 to 2010 FBT years no public commercial car park in the Cairns CBD charged more than the car parking threshold and, save for the 2010 FBT year, the same applied in Townsville.^[13] Section 7 of the 2007 and 2010 Car Parking Valuation Reports for Cairns Airport.
• (h) As at the dates listed below the lowest daily fee for car parking spaces at car parks at the airports listed below (which were all within a one kilometre radius of the relevant airport) exceeded the FBT threshold:
  

  Date	Airport	Charges and other information
  21/11/2013	Rockhampton	Rockhampton Airport had a short term car park and a long term car park. For 6-7 hours in the short term car park the fee was $14. For 1 day in the long term car park, being the minimum charge, the fee was $12.[14] Attachment “9” to Qantas’s submissions.
  21/11/2013	Port Hedland	Port Hedland Airport had a short term car park and a long term car park. For 6-7 hours in the short term car park the fee was approximately $12. For 1 day in the long term car park, being the minimum charge, the fee was $15.70.[15] Attachment “10” to Qantas’s submissions.
  	Port Macquarie	Port Macquarie Airport had a public car park. For 6-7 hours the fee was $14.
  21/11/2013	Avalon	Avalon Airport had a public car park. For 4-24 hours the fee was $35.[16] Attachment “11” to Qantas’s submissions.
  21/11/2013	Mildura	Mildura Airport had a short term and long term car park. The 1 day fee for the long term car park was $9.[17] Attachment “12” to Qantas’s submissions.
  21/11/2013	Broome	The long term car park at Broome Airport charged $13.00 per day.[18] Attachment “13” to Qantas’s submissions.
  21/11/2013	Geraldton	The short term car park at Geraldton Airport charged $2.00 per hour, - $12.00 for parking for 6 hours. Long term parking was $5 per day.[19] Attachment “14” to Qantas’s submissions.
  21/11/2013	Byron	Byron Bay Airport had car parking at a daily rate of $8.00 and an overnight rate of $14.00.[20] Attachment “15” to Qantas’s submissions.

• (i) Sydney Airport's website advertised the Domestic multi-storey car park as ideal for shorter stays ranging from greeting or farewelling family and friends, to business and leisure trips over multiple days.
• (j) Non early-bird rates for parking at Australian capital city CBD car parks approximated the daily charges at short term car parks at the Airports.

The legislation

13. The legislation to be applied in determining the present application is:

• (a) the definition of car parking benefit in s 136(1) of the Assessment Act which links to s 39A of the Assessment Act. Section 39A is in the following terms:

S 39A Car parking benefits

[1] If the following conditions are satisfied in relation to a daylight period, or a combination of daylight periods, on a particular day:

• (a) during the period or periods, a car is parked on one or more premises of a person (the provider ), where:
  • (i) the premises, or each of the premises, on which the car is parked are business premises, or associated premises, of the provider; and
  • (ii) a commercial parking station is located within a 1 km radius of the premises, on which the car is parked; and
  • (iii) the lowest fee charged by the operator of any such commercial parking station in the ordinary course of business to members of the public for all-day parking on the first business day of the FBT year is more than the car parking threshold;
• (b) the total duration of the period or periods exceeds 4 hours;
• (c) any of the following applies:
  • (i) a car benefit relating to the car is provided on that day to an employee or an associate of an employee in respect of the employment of the employee;
  • (ii) the car is owned by, or leased to, an employee or an associate of an employee at any time during the period or periods;
  • (iii) the car is made available to an employee or an associate of an employee at any time during the period or periods by another person, where:
    • (A) the other person is neither the employer of the employee nor an associate of the employer of the employee; and
    • (B) the other person did not make the car available under an arrangement to which the employer of the employee, or an associate of the employer of the employee, is a party;
  • (d) the provision of parking facilities for the car during the period or periods is in respect of the employment of the employee;
  • (e) on that day, the employee has a primary place of employment;
  • (f) during the period or periods, the car is parked at, or in the vicinity of, that primary place of employment;
  • (g) on that day, the car is used in connection with travel by the employee between:
    • (i) the place of residence of the employee; and
    • (ii) that primary place of employment;
  • (h) the provision of parking facilities for the car during the period or periods is not taken, under the regulations, to be excluded from this section;
  • (i) the day is on or after 1 July 1993;
  • the provision of parking facilities for the car during the period or periods is taken to constitute a benefit provided by the provider to the employee or the associate of the employee in respect of the employment of the employee.

• (b) the definitions of commercial parking station, all-day parking and daylight period in s 136(1) of the Assessment Act^[21] Fringe Benefits Tax Assessment Act 1986 (C’th). which are in the following terms:

"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.

"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.

• (a) after 7 a.m. on that day; and
• (b) before 7 p.m. on that day.

14. Section 39A(2) of the Assessment Act provides the framework for determining car parking threshold amounts for any year. For 1995 it was $5.00 and for subsequent years it was the previous year's amount indexed by movements in All Groups Consumer Price Index number.

15. Giving effect to s 39A(1)(h), regulation 4^[22] Fringe Benefits Tax Regulations 1992 (Cth), Regulation 4. excludes car parking facilities for disabled employees who satisfy the terms thereof.

16. Car parking benefits that are also fringe benefits^[23] Assessment Act; s 136(1) definition of fringe benefit: broadly a benefit provided to an employee, or an associate of an employee, by an employer, or an associate of the employer, in respect of the employment of the employee that is not excluded. , are car parking fringe benefits^[24] Assessment Act; s 136(1) definition of car parking fringe benefit . .

17. While the taxable values of any car parking fringe benefits are not in dispute in the present application, the system for their calculation forms part of the statutory regime and context to which regard must be had to determine the present application. Subject to integrity rules that remove distortions created by non-representative values,^[25] Assessment Act; s 39AA, s 39AB and s 39DA(4). there are three alternate bases for calculating the taxable value of car parking fringe benefits. The three calculation bases are:

• (a) the commercial parking station rate basis which looks to the lowest amounts charged by a commercial parking station within a 1 km radius of the employer's premises to members of the public in the ordinary course of business for all-day parking less the employees contribution;^[26] Assessment Act; s 39C.
• (b) the market value basis which looks to the arm's length amount that the employee could be expected to pay for the car park use less the employees contribution;^[27] Assessment Act; s 39D. and
• (c) the average cost basis which looks to the lowest charges of a commercial parking station within a 1 km radius of the employer's premises on the first and last days of the tax year and averages the two.^[28] Assessment Act; s 39DA.

18. The present application only concerns whether the s 39A(1)(a)(ii) and (iii) conditions are satisfied. The parties accept that s 39A(1)(a)(i) and the remaining conditions in s 39A(1)(b) to s 39A(1)(i) were satisfied for any benefit that would arise if the s 39A(1)(a) condition is satisfied.

History to the legislation

19. The FBT system was introduced to replace the earlier system of including benefits received in connection with employment in employees' taxable incomes pursuant to s 26(e) of the Income Tax Assessment Act 1936 (Cth). Instead, a new system of taxing employers was introduced. The rationale for doing so was to overcome difficulties with taxing benefits under s 26(e) in a setting of greater packaging of salary remuneration. Explaining the new system, the Honourable P. J. Keating, Commonwealth Treasurer, said:

… there has over the years been a very strong movement towards the remuneration of employees-especially higher income earners-by fringe benefits packages which allowed income tax to be avoided on substantial parts of the overall remuneration. So-called tax-free perks came to dominate salary package negotiations and packages were openly advertised in the market place. Increasingly innovative deals were emerging particularly after the demise of the paper tax avoidance schemes in the early 1980s. All of this was aggravated by the inability of the existing income tax system to exact tax effectively from recipients of fringe benefits. Several factors contributed to this.

…

First there were deficiencies in the income tax law itself. A major one was that it called for case by case subjective judgments to be made as to the value of fringe benefits in the hands of individual employees. That kind of requirement is simply incompatible with the efficient assessment and collection of tax on a mass scale and invites disputation. There were also technical defects creating gaps in coverage, for example, when benefits were given to family members and associates rather than to employees directly. A decided lack of enthusiasm to tackle such problems over the years by previous governments inhibited administrative initiatives in this area, encouraged the growth of fringe benefits and heightened perceptions that there was a right to enjoy perks tax-free once they were negotiated. This was a situation that the Government could not leave unchallenged if tax reform was to have any meaning.^[29] Second Reading Speech moving the Fringe Benefits Tax Assessment Bill 1986 .

20. As observed by Qantas, the Full Federal Court decision in
Virgin Blue Airlines Pty Ltd v Commissioner of Taxation^[30] (2010) FCR 190 at [3] to [17], [34] and [56] Edmonds and Gilmour JJ with whom, subject to some qualifications not presently relevant, Jessup J agreed. explained the general scheme of taxing car parking fringe benefits and the history to it. Edmonds and Gilmour JJ said:

[3] Fringe benefits tax (FBT) is imposed by s 5 of the Fringe Benefits Tax Act 1986 (Cth) in respect of the "fringe benefits taxable amount" of an employer of a year of tax. The scheme of the legislation is described in
Queensland v Commonwealth; see also
The Roads and Traffic Authority of New South Wales v Commissioner of Taxation and
Westpac Banking Corporation v Commissioner of Taxation. The tax is payable by the employer. The "fringe benefits taxable amount" of an employer is calculated by reference to the taxable value of each "fringe benefit" provided: ss 5B and 5C of the FBTAA. The expression "fringe benefit" is defined in s 136(1) of the FBTAA. (Citations omitted)

[4] The amount of FBT payable depends on the taxable value of the fringe benefit. Part III of the FBTAA contains a number of different valuation rules for calculating the taxable value of different kinds of fringe benefit. Car parking benefits are dealt with in Div 10A.

[5] The employers pays FBT on the "fringe benefits taxable amount" at a fixed rate which is the top marginal rate plus the Medicare levy. This is designed to ensure that fringe benefits are effectively taxed in the same way as if they had been received as salary of the employee, on the assumption that the employee is taxed at the top marginal rate. In order to avoid double taxation, s 23L of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936) exempts the employee from tax on the amount of the benefit provided.

[6] At the time of the introduction of the FBTAA (the FBTAA was assented to on 24 June 1986) car parking facilities were either expense payment fringe benefits or residual fringe benefits: ss 20 and 45 FBTAA; Miscellaneous Tax Ruling MT 2021.

[7] On 29 October 1986 the Treasurer announced that:

Car parking benefits are to be exempted from fringe benefits tax, whether provided at an employer's premises or elsewhere.

[8] In consequence, s 58G was inserted into the FBTAA, by s 34 of the Taxation Laws Amendment (Fringe Benefits and Substantiation Act) 1987 (Cth) providing that such a benefit was an exempt benefit. This amounted to a "blanket exemption".

[9] That exemption was then partly reversed in 1992 when Div 10A of the FBTAA was introduced by Taxation Laws Amendment (Car Parking) Act 1992 (Cth) to render some instances of employer subsidised car parking a fringe benefit. Section 39A, which is found in Div 10A, brought within the fringe benefits tax net the provision of car parking facilities where "the car is parked at, or in the vicinity of, the employee's primary place of employment": s 39A(1)(f) of the FBTAA.

[10] In other words, Div 10A "carved out" of the blanket exemption a limited liability to tax: "where the car is parked at, or in the vicinity of, the employer's primary place of employment".

[11] If, instead of a "carve out", the Legislature had intended to remove the blanket exemption, it could have repealed s 58G. In fact this section was amended with effect described later in this reasons.

…

[13] Section 39A(1) prescribes the conditions which must be satisfied in order for the provisions of car parking facilities to an employee to be a fringe benefit.

…

[15] At the same time that Div 10A was introduced, s 58G(1) was amended to read as follows:

Each of the following is an exempt benefit:

• (a) an expense benefit payment, where:
  • (i) the recipient's expenditure is in respect of the provision of motor vehicle parking facilities; and
  • (ii) the benefit is not an eligible parking expense payment benefit;
• (b) a residual benefit where the recipient's benefit consists of motor vehicle parking facilities.

[16] The expression "motor vehicle parking facilities" is not defined in the FBTAA. The expression "eligible car parking expense payment benefit" is defined in s 136(1), the conditions of which mirror the conditions in s 39A(1). Thus, where an employer provides a car parking benefit which does not satisfy 39A(1)(f) (or any other conditions in s 39A(1)) the benefit will not be an "eligible car parking expense payment benefit". It will be exempt from FBT, and will not be assessable as ordinary income of the employee: s 23L(1A) of the Income Tax Assessment Act 1936 (Cth). Section 39A(1)(f) thus operates to restrict the extent to which the provision of parking facilities by an employer or an associate to an employee is subject to FBT.

[17] In summary, where the employer either pays the cost of the parking or reimburses the employee for that cost:

• (a) if the car parking facilities are at, or in the vicinity of, the primary place of employment and the other conditions of s 39A(1) are satisfied, FBT is payable by the employer at effectively the same rate as if the employee simply received a higher salary to compensate the employee for having to pay the cost of the parking, on the assumption that the employee is taxed at the highest marginal rate;
• (b) but where the car parking facilities are not at or in the vicinity of the primary place of employment, the employer is not subject to FBT and the employee is not taxed on the benefit received.

…

[34] The Second Reading Speech to the Taxation Laws Amendment (Car Parking) Bill 1992 (Cth) described the purpose of the introduction of FBT on car parking benefits which fall within the new Div 10A as follows:

This Bill will give effect to the Budget measure announced on 18 August 1992 to tax certain car parking benefits. The Government finds it inequitable that some employees receive these car parking benefits in a tax exempt form while other employees, most of whom will not get a tax deduction for their car parking costs, must pay for equivalent facilities out of their after tax income. Accordingly, the Bill will amend the Fringe Benefits Tax Assessment Act 1986 to impose fringe benefits tax on certain car parking benefits received by employees. However, a benefit will only arise where a car used to commute from home to work is parked at or near the employee's main workplace for more than 4 hours between the hours of 7.00am and 7.00pm.

…

[56] The function of s 39A(1)(f) is to limit the size of the area around the primary place of employment in which a parking space will be a fringe benefit. Section 39A reflects a policy that the inequity referred to in the Second Reading Speech is not seen as applicable to all employer subsidised car parking. The policy is not to impose tax on all employer subsidised parking. That would have been achieved if, instead of inserting Div 10A in 1992, the legislature had simply removed former s 58G. Rather, the tax is imposed only if all of the conditions of s 39A, and the other conditions of the FBTAA, are satisfied. Accordingly, not every car parking benefit constitutes a taxable fringe benefit.

The Commissioner's contentions

21. The Commissioner contends that, subject to an exception for the short term car park at the Brisbane Airport for the 2009 and 2010 FBT years, all of the car parks at the Airports were commercial parking stations as they were all available to the public for all-day parking for a fee that exceeded the car parking threshold within the words of the statute. The Commissioner contends that to be a commercial parking station all that is required is that there is a permanent commercial car parking facility where car parking spaces are available in the ordinary course of business to members of the public for all-day parking on payment of a fee, without any further qualification as to intended customers thereof.

22. The Commissioner explains his acceptance that for the 2009 and 2010 FBT years the short term car park at the Brisbane Airport was not a commercial parking station because for those two years there was a fee structure which, he concluded, operated as a penalty to discourage all-day parkers and publicity that encouraged all-day parkers to use the long term car park.^[31] The publicity is referred to on page 16 of the Reasons for Decision in relation to Qantas’s objection and appeared on the Brisbane Airport’s web site. In his written submissions the Commissioner accepts that:

In certain circumstances the fee structure for a commercial car park may indicate that it is not, in fact, available for all-day parking, because the fee structure makes all-day parking uneconomic in comparison to the cost of parking for shorter periods. An example is set out in the table at the foot of para. 35 of the Applicant's submissions, which was an example given at an NTLG meeting. Here the shopping centre car park applied higher hourly rates the longer a car was parked. If a car was parked for 5 hours or more the rate was significantly higher ($10 per hour) than if the car was parked for less than 5 hours but more than 3 hours ($2 per hour). The example illustrates the type of economic penalty that might lead to the conclusion that the car park was not in fact available for all-day parking.

Qantas's primary contention

23. Qantas frames its primary contention outlined at [3] above as one that concerns the proper statutory construction of s 39A(1)(a)(ii) and (iii) of the Assessment Act. The proper framing of that statutory construction question is the meaning of the term commercial parking station as used in s 39A(1)(a)(ii). Whatever meaning the term has in s 39A(1)(a)(ii) will carry over to s 39A(1)(a)(iii).

24. In its written submissions Qantas identifies a line of High Court of Australia decisions^[32] Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 at [39] (referring to what the High Court said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] ), Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16 at [47] , CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 , Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78] per McHugh, Gummow, Kirby and Hayne JJ. that have held that the statutory construction process calls for consideration of the text of the statute, as well as the context in which the text sits, namely the statute as a whole, and its purpose. Notwithstanding what was said by the High Court in
Commissioner of Taxation v Consolidated Media Holdings Ltd^[33] (2012) 298 ALR 257 at [39] referring to what the High Court said in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] . (concerning starting and ending the process of statutory construction with the statutory text) to which Qantas referred in its submissions, Qantas then proceeds to jump over the words of the statute and contends that the process required calls for regard to:

• (a) the FBTAA as a whole;
• (b) the legislative history of the … [Assessment Act] … and Division 10A; and
• (c) the "mischief" which the 1992 amendments to the … [Assessment Act] … introducing Division 10A and amending s 58G, and the subsequent amendments by the 1994 Amendments and the 1995 Amendments, were designed to overcome.

25. In its written submissions Qantas contends that it is inappropriate to take a strict literal approach and, relying on what the Full Federal Court said in Virgin Blue^[34] At [30]. , that it is necessary to identify the benefit to be taxed which is:

… the provision of car parking by an employer to an employee who uses his or her car to commute to and from work but only where :

• (a) there is equivalent or comparable car parking available to that employee within 1km of the business premises, being a permanent commercial car park which has a primary, or at least a significant, purpose of providing parking to commuters travelling to or from work in the ordinary course of business; and
• (b) the employee parking is provided in an area where the benefit has a significant value, for example the CBD.

… [and] …the concept of "commercial parking station", does not tax the provision of car parking benefits to employees where:

• (a) the only car parking facilities within 1km of the business premises are special purpose car parks which:
  • i) do not have a primary purpose, or a substantial purpose, of providing parking to commuters travelling to and from work in the ordinary course of business; and
  • ii) charge a fee for "all day parking" (being for a period of 6 hours or more during the period 7am to 7pm) which exceeds the FBT threshold solely because of an artificial and monopolistic pricing structure and which fee bears no connection to the value of the car parking benefit provided to the employee;
• (b) the employee parking is provided in an area where the benefit to the employee does not have a significant value. (Qantas's emphasis)

26. Qantas also contends that the Commissioner's construction that looks to the words of the legislation absent what Qantas contends is its purpose, means that benefits will be taxable regardless of whether:

• (a) the car park has any focus on providing parking to members of the public who are commuting to and from work; or
• (b) the fees charged by the car park bears any correlation to the value of the parking benefit provided to the employees; or
• (c) the employee parking is provided in an area where the benefit to the employee has a significant value.

… [which] … conflicts with the context and purpose to which Division 10A was introduced and leads to an absurd, inconvenient and unjust outcome.

27. Qantas explains that the statutory context of s 39A(1)(a)(ii) and (iii) which requires the alternate car parking facility to provide equivalent or comparable facilities to those provided by the employer flows from the following propositions. First it is necessary to identify the benefit to be taxed; namely a car parking benefit for or of an employee who uses a car to commute to and from work but only where there is equivalent or comparable car parking available within a one kilometre radius which has a primary, or at least a significant, purpose of providing parking to commuters travelling to or from work in the ordinary course of business. Second, special purpose car parking facilities that do not have a primary purpose, or a substantial purpose, of providing car parking to members of the public commuting to and from work in the ordinary course of business are, therefore, not equivalent or comparable. Third, features that differentiate car parking facilities intended for use by commuters to and from work from other kinds of facilities are, according to Qantas, apparent customers of the car parks, e.g. airline travellers and those transporting airline travellers to or from airports, and pricing structures that are monopolistic and/or that do not differentiate between ordinary hours and after hours in their rates and/or that do not afford early-bird discounts.

28. Qantas supports its contentions that it is inappropriate to take a strict literal approach by reference to the explanatory memorandum to the Taxation Laws Amendment (Car Parking) Bill 1992 (Cth) which said:

In relation to the definition of "commercial car parking station", the words "permanent" and "commercial" have their normal dictionary meanings. …

Some car parking facilities have a primary purpose to provide short-term shopper parking. To discourage all-day parking, the operators of these facilities charge penalty rates for all-day parking. These rates are significantly greater than the rates that would be charged by a similar facility which encouraged all-day parking. For the purpose of these provisions, short-term shopper parking facilities using penalty rates for all-day parking will not be treated as a "commercial parking station".

and the Commissioner's acceptance of these remarks in his publications such as Taxation Ruling TR 96/26 that shopping centre car parks and the Brisbane Airport car park for the 2009 and 2010 FBT years were not commercial parking stations. Qantas puts its contention in these terms:

The Commissioner's formal publications show that he agrees that a literal construction is not to be applied to the concept of "commercial parking station". In Taxation Ruling TR 96/26 at paragraph 81 the Commissioner does not regard the following parking arrangements as constituting "commercial parking stations":

Car parking facilities, with a primary purpose other than providing all-day parking, that usually charge penalty rates significantly higher than the rates chargeable for all-day parking at commercial all-day parking facilities (such as parking provided for short term shoppers or hotel guests).

29. Qantas's explanation of the car parking benefit needing to have significant value is derived from both the 1992 part reversal of the prior exemption of car parking benefits from the FBT regime and the 1995 changes to the car parking FBT regime effected by the Taxation Laws Amendment (FBT Cost of Compliance) Act 1995 (Cth).

30. The 1992 part reversal of the previous exemption from FBT for car parking benefits was made by introducing Division 10A of the Assessment Act in Taxation Laws Amendment (Car Parking) Act 1992 (Cth). This change was referred to at [9] of the joint decision of the Full Court of the Federal Court in Virgin Blue extracted above. The effect of the part reversal was to bring to tax benefits enjoyed by employees who did not have to pay for car parking facilities associated with driving to and from work that were not taxed when other employees working in the same general vicinity did have to pay for such facilities and did not enjoy a tax deduction for the cost. The extract from the explanatory memorandum to the Taxation Laws Amendment (Car Parking) Bill 1992 (Cth) referred to in [34] of the joint decision of the Full Court of the Federal Court in Virgin Blue, extracted above, confirms a clear intention to redress a pre-existing circumstance which was perceived to be unfair. The Second Reading Speech was to similar effect. It included:

As part of the continuing task of making the tax system fairer, from April next year, Fringe Benefits Tax will be applied to valuable car parking facilities - mainly in the central business districts - that are provided by employers to their employees.

31. The 1995 change effected by the Taxation Laws Amendment (FBT Cost of Compliance) Act 1995 (Cth) introduced the car parking threshold. The explanation for that initiative in the Explanatory Memorandum to the Taxation Laws Amendment (FBT Cost of Compliance) Bill 1995 was:

3.12 One of the conditions that must be satisfied before a car parking benefit can arise, as set out in subparagraph 39A(a)(ii), is that there must be a commercial parking station located within a 1 km radius of the provider's premises.

3.13 New subparagraph 39A(a)(iii) will ensure that a car parking benefit will not arise where there is no commercial parking station operator within a 1km vicinity of the provider's premises who charges more than $5 a day at the beginning of the FBT year [item 1] . The amendment will confine FBT on car parking to areas where benefits have significant values, such as CBDs. (original emphasis)

32. Qantas's analysis of the value of the car parks provided to employees at the Airports and its contention that their value was not significant lies in the asserted values of those car parks set out in the 2007 and 2010 valuations it obtained. In this regard the observation above concerning the agreed statement of facts is noted.

33. Calling in aid the observations of Gibbs CJ in
Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation^[35] (1981) 147 CLR 297 at 305. , Qantas seeks to support its primary contention with the proposition that where two constructions of a statute are open, "the Court will obviously prefer that which will avoid what it considers to be inconvenience or injustice".^[36] (1981) 147 CLR 297 at 305. Qantas also invites attention to the remarks of Mason and Wilson JJ at 320), CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 394 at 408 and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78] . Qantas points to what it contends to be absurd, inconvenient and unjust outcomes if the Commissioner's contentions are accepted. Those examples are of situations of employers who provide car parking facilities to employees within one kilometre of car parks providing parking facilities allowing parking for more than six hours at a fee that is greater than the car parking threshold and the tax liabilities said to arise.

Consideration of Qantas's primary contentions

34. Acknowledging that Qantas has legitimately observed that the Assessment Act appears to call for an interpretation and administration by reference to matters other than a strict literal application of its terms as revealed by the explanatory memorandum to the Taxation Laws Amendment (Car Parking) Bill 1992 (Cth), that statutes that have this feature can be difficult to interpret and administer, that presence of the words in the explanatory memorandum rather than the statute does not sit comfortably with the modern approach to statutory interpretation,^[37] See as examples, Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 265 [32] French CJ, Gummow, Hayne, Crennan and Kiefel JJ, and the reference to Re Bolton; Ex Parte Beane (1987) 162 CLR 397 , Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 and Brooks v Federal Commissioner of Taxation (2000) 100 FCR 117 at 136 [68] per Hill, R D Nicholson and Sundberg JJ. and that there is much to be said for having operative provisions in the statute rather than explanatory materials, the Tribunal cannot accept Qantas's primary contention.

35. The statute is not expressed to, and does not seek to, differentiate car parking facilities by reference to any confined class of intended primary or predominant customers or uses as contended by Qantas. The statute does differentiate car parking facilities by reference to four criteria:^[38] See the definition of commercial parking station in s 136(1) of the Assessment Act, s 39A(1)(h) of the definition of car parking benefit in conjunction with regulation 4.

• (a) first, by reference to the hours of availability of car parking spaces, namely whether car parking spaces are available in the ordinary course of business … for all-day parking - i.e. parking for six or more hours between 7 a.m. and 7 p.m.;
• (b) second, by reference to the range of customers able to use the car parking spaces, namely whether car parking spaces are available in the ordinary course of business to members of the public …;
• (c) third, by reference to location and manner of payment of fees, namely whether the parking facility is on a public street, road, lane, thoroughfare or footpath paid for by inserting money in a meter or by obtaining a voucher; and
• (d) fourth, by reference to users of car parking facilities from a particular group in the community, namely whether the facility is used by disabled people.

36. While use of the car parking facilities by an employee in connection with travel by the employee between the employee's place of residence and primary place of employment is a threshold condition before a FBT liability might arise, the legislation does not include any requirement that the commercial parking station must have primary intended users or uses. Nor does the legislation require that the car park provided by the employer and used by the employee be intended for use predominantly by employees in conjunction with travel to and from work. To the contrary, a car parking space provided by an employer and used by an employee can be a car parking space intended for use by the employer's customers. That the legislature has chosen to differentiate car parking facilities on four bases other than on the intended user and use basis contended for by Qantas assists in reaching a conclusion that the additional, and unenacted, basis for differentiating between car parks is not to be read in to the legislation. Without being specifically excluded, a kerbside car park with a ticket machine or a meter that allows six hours parking in daylight periods would qualify if the fees exceeded the car parking threshold. Kerbside parking may or may not have a predominant use by, or be intended predominantly for, commuters to and from work. The exclusion of such car parking facilities suggests the concept of commercial parking station is wider than Qantas contends.

37. It is apparent that the legislature intended that the Assessment Act require a substantive approach be taken in determining whether car parking spaces were available in the ordinary course of business to members of the public for all-day parking such that car parking spaces at short term shopper car parks are not to be regarded as available to members of the public for all-day parking with the effect that those car parking facilities are not commercial parking stations. Qantas's contentions mistake a focus directed to whether car parking spaces are available for public all-day parking with a different subject matter which none of the statute, its contextual setting or any extrinsic aids to interpretation suggest is permissible. Moreover, the contextual setting suggests that Qantas's contention that a car park needs to be primarily for commuters to and from work is wrong.

38. Once it is accepted that there is no need to address whether a car park has intended primary uses or users, it is not strictly necessary to address the indicators that may reveal such uses and users of a car park. Nevertheless, the factors pointed to by Qantas are equivocal.

39. Qantas's contention that the cost of parking at the Airports is such that the facilities are not intended for use by commuters to and from work fails to have regard to exactly what the statute seeks to identify. It may be the case that car parking fees at the Airports might be seen to be expensive, particularly for periods of six hours or more in short term car parking facilities. Those fees may be a reflection of monopolistic features of airport car parking facilities; they may also be a reflection of other matters such as cost. Similarly, car parking fees for facilities in central business districts of Australian capital cities might be seen to be expensive when compared with other areas. Areas where car parking is expensive are precisely what the statute seeks to identify and use as a touchstone for determining which employers are to pay FBT. The statute does not reveal any reason why an airport should be treated any differently from a central business district. In fact, when the pre-existing exemption of car parking facilities from FBT was reversed in part in 1992, the part reversal was not limited to facilities in central business districts. The Second Reading Speech, extracted above, said as much. The clear intention was to redress a perceived imbalance between employees working in the same general vicinity, some of whom had employer provided parking facilities free of tax impact and others who had to pay for alternate facilities in the same general vicinity without any tax deduction for the cost. Contrary to Qantas's contentions, the Assessment Act seeks to identify a Qantas employee who enjoys free parking at one of the Airports and compare that employee with another who has to pay a non-deductible amount for an alternate facility in the same vicinity.

40. Qantas is correct in saying that the legislature intended to limit the scope of the FBT regime in its operation concerning car parking facilities provided to employees, and that not all such facilities are intended to be taxed under the Assessment Act as contended by Qantas. Qantas is also correct that a criterion adopted by the legislature to differentiate between those car parking facilities that are intended to be taxed and those that are not is that the facilities to be taxed are those that are provided in areas where parking facilities are valuable.

41. However, Qantas's contention that the car parking facilities provided to its employees at the Airports were not valuable and are therefore not intended to be taxed is misconceived for two reasons.

• (a) First, Qantas's contention is misconceived in the manner in which, and the touchstone against which, the value of those facilities is measured. The evident intent of the legislature, as found in the terms of the statute, was to determine which car parking facilities were valuable by reference to the cost that would need to be paid for alternate car parking facilities within a one kilometre radius^[39] Not necessarily a circular area. See Assessment Act, s 39B: For the purposes of this Division, a commercial parking station is taken to be located within a 1 km radius of particular business premises or particular associated premises if, and only if, a car entrance to the commercial parking station is situated less than 1 km, by the shortest practicable route, from a car entrance to those premises. and whether that cost exceeded a particular threshold. So much is clear in the definitions of commercial parking station^[40] Assessment Act, s 136(1). and car parking benefit.^[41] Assessment Act, s 136(1). So much is also clear, should it be thought that it is necessary to refer to it, from the terms of the 1995 Explanatory Memorandum that accompanied the Taxation Laws Amendment (FBT Cost of Compliance) Bill 1995 (Cth), particularly [3.13].
• (b) Second, Qantas's contention is misconceived because it relies on valuations that have not been agreed and therefore lacks any evidentiary foundation.

42. Using an external measure (namely the cost of alternate parking facilities in the same area) to determine whether a particular car parking facility is provided in areas where parking facilities are valuable, and therefore whether a potentially taxable fringe benefit has been provided, is also consistent with the apparent difficulties associated with subjective aspects of the former s 26(e) regime of taxing benefits in the hands of employees. As noted above, the FBT regime was introduced to deal with:

… deficiencies in the income tax law itself. A major one was that it called for case by case subjective judgments to be made as to the value of fringe benefits in the hands of individual employees. That kind of requirement is simply incompatible with the efficient assessment and collection of tax on a mass scale and invites disputation.

43. Part III of the Assessment Act has a system of defining benefits that are liable to be taxed, and then determining their taxable values. It has Divisions and Subdivisions. Apart from Division 12 which deals with Residual benefits and Division 13 which deals with Miscellaneous exempt benefits, each Division deals with a discrete category of benefits sought to be taxed and adopts a subdivision structure that first identifies benefits to be taxed and then determines taxable amounts. The methods by which benefits are identified and taxable values are determined vary but most require objective measures.

44. Qantas's absurd outcome propositions are not persuasive. An illustration of an alleged absurd outcome contended for by Qantas is:

Qantas will be required to pay FBT in respect of parking provided at Employee Car Parking Facilities within 1km of the Airport Carparks at Canberra Airport, notwithstanding employers who provide employee parking at the Business Parks some 5km away are not subject to FBT.

45. Far from being an absurd outcome, it is a design feature of the system of taxing car parking benefits to look to whether there is a commercial parking station with its entrance within a one kilometre radius of the entrance to the subject employer's premises. It is a design feature of the FBT system that employers with more than one workplace, for example a capital city CBD and a rural town, who provide car parking facilities to employees who drive to and from work may be subject to FBT in respect of car parking facilities at one but not all work places. The system draws a line at one kilometre. If the employer is beyond the one kilometre line in respect of an employee who enjoys a car parking facility the system does not impose liability. If the employer is inside the line then liability may arise. It is possible that employers in adjacent premises may be treated differently by reference to distance from the same commercial parking station. That is the system that was enacted.

Qantas's alternate contentions

46. Qantas has alternate contentions which are relevant given the disposition of its primary contention.

The Canberra airport car park use restrictions contention

47. Qantas's first alternate contention is that because the parking spaces at the Canberra Airport car parks were available to be used only by airline passengers and meeters and greeters of airline passengers, those spaces were not available to members of the public in the required sense and, as a consequence, those car parks were not commercial parking stations. Further, as there was no other commercial parking station within the one kilometre radius of Qantas work place no FBT liability arose. In support Qantas contends that the statutory context is as was said in the joint decision in Virgin Blue: … the imposition of tax upon a car parking benefit provided to employees who use their cars to commute to and from work^[42] At [36]. which calls for identification of an alternative to employee-provided parking,[sic]^[43] The Applicant presumably means employer-provided parking. such that the word "public" in the phrase "available to members of the public" must be construed so as include the employees of businesses.

48. The Commissioner contends that:

Airline passengers and people meeting or greeting airline passengers, are members of the public. The term "public" and the phrase "members of the public" are not further defined in the FBTAA, nor are they technical terms. Therefore the ordinary meaning of the words applies.

The Macquarie Dictionary defines the word public (when used as a noun) to mean the people constituting a community, state, or nation or [emphasis added] a particular section of the people." Case law has also adopted definitions of the word "public" (or composite phrases including that word) which encompass sections or segments of the wider community or nation.

and relies on what was said about the concept of what was the public in a revenue law context in
Commissioner of State Revenue (Vic) v Australand Investments Ltd^[44] [2012] ATC 20–332. and at first instance
Australand Investments Ltd v Commissioner of State Revenue,^[45] (2009) 77 ATR 683 at [97] (Mandie J). and the first instance references to the decision of Barwick CJ in
Lee v Evans:^[46] The reference to (1964) 112 CLR 276 at 285 and 286 at (2009) 77 ATR 683 at [97] (Mandie J).

… the basic concept is that the invitation, though maybe not universal, is general; that it is an invitation to all and sundry of some segment of the community at large. This does not mean that it must be an invitation to all the public either everywhere, or in any particular community. How large a section of the public must be addressed in a general invitation for it to be an invitation to the public in the relevant connexion must depend on the context of each particular enactment and the circumstances of each case. …

with which the Court of Appeal agreed.^[47] At [2012] VSCA 152 at [67].

49. The Commissioner also refers to
Biga Nominees Pty Ltd v Federal Commissioner of Taxation^[48] (1991) 21 ATR 1459. which followed
Lee v Evans principles, and observes that in
Rank Film Production Ltd v Colin S Dodds^[49] [1983] 2 NSWLR 553. Rath J considered that the concept of "public" included a "portion of the public", even where that portion might be small and on this basis held that the transmission of in room movies in a motel resulted in the movies being seen "in public", even though the viewing public was practically limited to motel guests.

Consideration of the Canberra airport car park use restrictions contention

50. There is some force to Qantas's contention. It will be recalled that the mischief sought to be redressed by the 1992 partial reinstatement of FBT in relation to car parking benefits was intended to redress what the government found …inequitable that some employees receive these car parking benefits in a tax exempt form while other employees, most of whom will not get a tax deduction for their car parking costs, must pay for equivalent facilities out of their after tax income.^[50] Virgin Blue joint decision of the Full Court of the Federal Court at [34] extracted above. The partial reinstatement was to redress the inequity of employees driving cars to and from work some receiving a car park benefit free of tax effect while others had to pay for alternate facilities at commercial parking stations with after taxed money when the two employee groups worked within the same one kilometre radius of the alternate commercial parking station. If there is not a parking facility available for employees commuting to and from work then the employees who enjoy employer provided car parking facilities do not enjoy the inequitable advantage sought to be addressed. It is unlikely that the government and the legislation would have intended to address a comparison, or redress an inequity, between the position of an employee with an employer provided facility and an employee who is a trespasser, albeit one who pays money to do so, at an alternate facility.

51. The remarks Mandie J extracted from Barwick CJ's decision in
Lee v Evans to which the Commissioner refers continued:^[51] The reference to (1964) 112 CLR 276 at 285 and 286 at (2009) 77 ATR 683 at [97] (Mandie J).

But within that sufficient area of the community the invitation must be general in the sense (citations omitted) … "An offer of shares to anyone who should choose to come in" and (citations omitted) "made to the public generally and capable therefore of being acted upon by any member of the public.

52. The Court of Appeal also agreed^[52] At [2012] ATC 20–332 at [71]. with some further remarks made by Mandie J at first instance:

[108] … the Tribunal was correct in its conclusion, or it was open to the Tribunal to conclude, that the units in AWPT4 were issued to the public because the offer of the units was available to the public at large and capable of being acted upon by any member of the public with the means to do so. The result may perhaps have been different if the offer had been restricted to those categories of persons listed in the application form that were delimited, for example, by a requirement as to ownership of assets to a specified value or as to income of a specified amount. However the offer was open to any member of the public choosing and able to apply for at least $500,000 worth of units (as the Tribunal pointed out) and I do not think that that limitation has the consequence that the offer was not capable of being acted upon by any member of the public except in the sense, as would apply in every case (as noted in the authorities), that the member of the public must be able to afford the investment.^[53] At (2009) 77 ATR 683.

53. Each of the contexts to which the Commissioner refers in which the concept of the public has been considered is quite different to that of the Assessment Act and car parking fringe benefits. In a revenue law context the enquiry may be to determine whether an entity is widely owned by independent people or closely held. That is a different enquiry to that called for in the present FBT context. In a securities and investment regulation context the focus may be consumer and investor protection. In that context it is necessary to confine the concept of the public to a portion of the community to give life to consumer and investor protection regimes. If the concept of public were not so limited in that context then the practical assurances afforded by the consumer and investor protection regimes would be readily defeated by artificial means. Similarly, in a regime designed to protect rights in the nature of property such as the copyright regime, if the public were not limited to a section of the community then, again, the protection of the regime could be readily defeated by artificial means.

54. The present context involves removing an inequitable imbalance between employees who enjoy a benefit associated with driving to work and employees who do not and who have to pay for an alternate facility within one kilometre. If there is not facility available for use by commuters to and from work then the inequitable imbalance does not arise.

55. The key to the proper approach to the concept of the public lies in what Barwick CJ said as extracted above:

How large a section of the public must be addressed in a general invitation for it to be an invitation to the public in the relevant connexion must depend on the context of each particular enactment and the circumstances of each case.^[54] (1964) 112 CLR 276 at 286.

56. Not without some hesitation, the context here requires inclusion of commuters to and from work as eligible users of car parking spaces at a car parking facility for its car parking spaces to be available in the ordinary course of business to members of the public for all-day parking which is the threshold condition for a car parking facility to be a commercial parking station. Without that eligibility, the perceived inequity addressed by the FBT statutory regime does not arise.

The short term car park charges at Melbourne Airport, Sydney Airport and Brisbane Airport (for the 2009 and 2010 years) contention

57. Qantas's second alternate contention, which is similar to one of the propositions advanced in support of its primary contention, is that the amounts charged for spaces at the short term car parks at Melbourne Airport, Sydney Airport and Brisbane Airport (for the 2009 and 2010 years) were intended as a disincentive to park on an all-day parking basis such that those spaces were not available for all-day parking and the car parks were therefore not commercial parking stations. Qantas's contention relies on words of the explanatory memorandum that have been extracted above, and not the statute. The remarks in the explanatory memorandum relied on by Qantas do not reconcile well with the words car parking spaces are available in the ordinary course of business to members of the public for all-day parking^[55] See Assessment Act 2007, s 136(1) definition of commercial parking station . in the statute. Our observations regarding the merits of this approach to enacting legislation above apply equally here.

58. The comparative rates it points to are set out in the table below.

Airport	Year	Short term (hrs)	Price $	Long term (days)	Price $	%
Brisbane	2007	6-15	18	1	22	82%
	2008	6-15	18	1	22	82%
	2009	6-15	45	1	25	180%
	2010	6-15	45	1	25	180%
Sydney	2007	3-24	42	1	24	175%
	2008	3-24	46	1	24	184%
	2009	3-24	50	1	25	200%
	2010	3-24	52	1	25	208%
Melbourne	2007	4-10	28	1	19	147%
	2008	4-10	30	1	25	120%
	2009	4-10	40	1	25	160%
	2010	4-10	49	1	25	196%

Consideration of the short term car park charges at Melbourne Airport, Sydney Airport and Brisbane Airport (for the 2009 and 2010 years) contention

59. In the present circumstances, while the prices charged for short term parking for six hours or more may be high, it is not apparent that the car parking spaces are intended as a disincentive for six hour or longer stays. There are distance, convenience and cover advantages that might be reflected in the rate differentials. At least substantially, if not predominantly, users of all kinds of airport facilities are more likely to be six hour or greater users of the facilities in the ordinary course and, with the possible exception of the Brisbane Airport given its website content, this is not discouraged. In any event, there is not sufficient evidence to conclude that the rates are a penalty as opposed to a situation of a facility provider charging a fee that the market will bear having regard to the cost of alternate convenient transport to and from the airport. The rates are not materially higher than the non-early bird all day rates charged at capital city central business district car parking facilities. Cheaper rates for less than six hour car park uses of short term, particularly the lower rates for the first one or two hours could well be explained by a desire to encourage short term users, namely meeters and greeters, and deliverers and farewellers, to use the facilities by not levying excessive amounts that may encourage use of alternate transport to and from the Airports such as taxis.

60. Even if the short term car parks do charge amounts intended to discourage all-day parking, the long term car parks do not. They have daily rates that are competitive with the early bird daily rates charged at capital city central business district car parking facilities.

61. The context of parking at the Airports does not lend itself to a conclusion that differential rates between long and short term parking mean that the short term car parks are not intended for all-day parking.

62. The fact that the Commissioner has conceded that the Brisbane Airport short term car park was not a commercial parking station for the 2009 and 2010 FBT years does not influence the outcome for different car parks with differing pricing structures and changes made to those pricing structures.

The long term car park charges at Adelaide Airport, Perth Airport and Melbourne Airport (for the 2009 and 2010 years only) contention

63. Qantas's third alternate contention is that because of the amounts charged for multiple day stays at the long term car parks at Adelaide Airport, Perth Airport and Melbourne Airport (for the 2009 and 2010 years only) these car parks did not charge above the car parking threshold and were not commercial parking stations.

64. Qantas contends that:

For each of the relevant years:

• (a) the Long Term Car Park at Adelaide Airport charged a fee of $5 per day for each day of parking after 4 days;
• (b) the Long Term Car Park at Perth Airport charged $2 per day after 3 days in 2007 and 2008, $5 in 2009 and $7 in 2010; and
• (c) the Long Term Cark Park at Melbourne Airport (2009 and 2010 only) charged a fee of $5 per day for each day of parking after 10 days.

All of the above rates were less than the relevant car parking threshold.

and

that it is open to the Tribunal to find that on the first business day of the FBT year, these long term car parks charged the respective rate to at least one member of the public who parked a vehicle for a period of at least 6 hours in the period 7am to 7pm on that day. Accordingly, the condition in sub-paragraph 39A(1)(a)(iii) is not satisfied as the lowest fee charged in the ordinary course of business to members of the public for all day parking on the first business day of the FBT year was not more than the car parking threshold.

Consideration of the long term car park charges at Adelaide Airport, Perth Airport and Melbourne Airport (for the 2009 and 2010 years only) contention

65. The contention is misconceived. It is misconceived because the daily fee contemplated by the car parking threshold is a fee payable for being able to come and go from the car park on the day for which the fee is payable. The fees payable at the long term car parks at the Adelaide Perth and Melbourne Airports (Melbourne for the 2009 and 2010 years only) as contended were not fees payable for coming and going on the day for which the fee was payable.

Conclusion and disposition

66. For FBT liabilities associated with parking provided to employees at all Airports other than the Canberra Airport, the Commissioner's objection decision is affirmed.

67. For FBT liabilities associated with parking provided to employees at the Canberra Airport, the Commissioner's objection decision is set aside and in its place the Tribunal decides that the objection is to be allowed.

68. The Commissioner is directed to amend Qantas's FBT assessments accordingly.

APPENDIX

Statement of Agreed Facts

Provision of employee parking facilities

1) During the years ended 31 March 2007 to 31 March 2010 (inclusive) the Applicant provided its employees with the use of car parking facilities (referred to as the Employee Car Parking Facilities) in the vicinity of their primary places of employment being located at or near Adelaide Airport, Alice Springs Airport, Brisbane Airport, Cairns Airport, Canberra Airport, Gold Coast Airport, Melbourne Airport, Perth Airport, Sydney Airport and Townsville Airport (collectively referred to as "the Airports").

2) Each Employee Car Parking Facility is located within 1 kilometre^[56] Within the meaning of s 39B of the Fringe Benefits Tax Assessment Act 1986 ( FBTAA ). of one of the following Airport car parks (collectively referred to as the Airport Car Parks):

• a) The Long Term Car Park at Adelaide Airport;
• b) The Short Term Car Park at Adelaide Airport;
• c) The Long Term Domestic Car Park at Brisbane Airport;
• d) The Short Term Domestic Car Park at Brisbane Airport;
• e) The Domestic Long Term Car Park at Cairns Airport
• f) The Domestic Uncovered Car Park at Cairns Airport;
• g) The International Budget Car Park at Cairns Airport;
• h) The Long Stay Car Park at Canberra Airport;
• i) The Short Stay Car Park at Canberra Airport;
• j) The Long Term Uncovered Car Park at Gold Coast Airport;
• k) The Long Term Undercover Car Park at Gold Coast Airport;
• l) The Short Term Car Park at Gold Coast Airport;
• m) The Multilevel Long Term Car Park at Melbourne Airport;
• n) The Remote Long Term Car Park at Melbourne Airport;
• o) The Short Term Car Park at Melbourne Airport;
• p) The Long Term Car Park at Perth Airport;
• q) The Short Term Car Park at Perth Airport;
• r) The Domestic Short Stay Car Park at Sydney Airport;
• s) The Long Term Car Park at Townsville Airport;
• t) The Short Term Car Park at Townsville Airport.

The Assessments

3) On 22 June 2007 the Applicant lodged a Fringe Benefits Tax (FBT) Return, which was deemed to be an assessment under the FBTAA, for the year ended 31 March 2007 (2007 FBT Assessment)^[57] T4, pages 82–88 of the “T” documents. The Applicant lodged an amended FBT Return on 29 June 2009; T5, pages 89–95 of the “T” documents. The Applicant prepared its FBT return on the basis that each Airport Car Park was a "commercial parking station" as defined in s 136(1) of the FBTAA and the FBT Return included, as forming part of the fringe benefits taxable amount, the taxable value of car parking fringe benefits, under Division 10A, attributable to car parking at one of the Employee Car Parking Facilities.

4) The car parking threshold for the year ended 31 March 2007, as defined in ss. 39A(2) of the FBTAA, was $6.62.^[58] TD 2006/37.

5) On 25 June 2008 the Applicant lodged a Fringe Benefits Tax ( FBT ) Return, which was deemed to be an assessment under the FBTAA, for the year ended 31 March 2008 ( 2008 FBT Assessment ).^[59] T6, pages 99–102 of the “T” documents. The Applicant lodged an amended FBT return on 29 June 2009; T7, pages 103–109 of the “T” documents. The Applicant prepared its FBT return on the basis that each Airport Car Park was a "commercial parking station" as defined in s. 136(1) of the FBTAA and the FBT Return included, as forming part of the fringe benefits taxable amount, the taxable value of car parking fringe benefits, under Division 10A, attributable to car parking at one of the Employee Car Parking Facilities.

6) The car parking threshold for the year ended 31 March 2008, as defined in ss. 39A(2) of the FBTAA, was $6.78.^[60] TD 2007/17.

7) On 29 June 2009 the Applicant lodged a Fringe Benefits Tax (FBT) Return, which was deemed to be an assessment under the FBTAA, for the year ended 31 March 2009 (2009 FBT Assessment).^[61] T8; pages 119–116 of the “T” documents. The Applicant lodged an amended FBT return on 8 March 2010; T9, pages 117–123 of the “T” documents. The Applicant prepared its FBT return on the basis that each Airport Car Park was a "commercial parking station" as defined in ss. 136(1) of the FBTAA and the FBT Return included, as forming part of the fringe benefits taxable amount, the taxable value of car parking fringe benefits, under Division 10A, attributable to car parking at one of the Employee Car Parking Facilities.

8) The car parking threshold for the year ended 31 March 2009, as defined in ss. 39A(2) of the FBTAA, was $7.07.^[62] TD 2008/12.

9) On 2 July 2010 the Applicant lodged a Fringe Benefits Tax ( FBT ) Return, which was deemed to be an assessment under the FBTAA, for the year ended 31 March 2010 ( 2010 FBT Assessment ).^[63] T10, pages 124–130 of the “T” documents. The Applicant lodged an amended FBT return on 7 December 2010; T11, pages 131–137 of the “T” documents. The Applicant prepared its FBT return on the basis that each Airport Car Park was a "commercial parking station" as defined in ss. 136(1) of the FBTAA and the FBT Return included, as forming part of the fringe benefits taxable amount, the taxable value of car parking fringe benefits, under Division 10A, attributable to car parking at one of the Employee Car Parking Facilities.

10) The car parking threshold for the year ended 31 March 2010, as defined in ss. 39A(2) of the FBTAA, was $7.25.^[64] TD 2009/11

11) For each of the assessments referred to above, where the Applicant included in its fringe benefits taxable amount the taxable value of car parking fringe benefits provided to an employee parking in an Employee Car Parking Facility in relation to a daylight period on a particular day:

• a) During the period the car was parked at the Employee Car Parking Facility:
  • i) The Employee Car Parking Facility was the business premises (or associated premises) of the Applicant;
  • ii) The Airport Car Park was located within 1 kilometre of the Employee Car Parking Facility.
• b) On the relevant day or days, the car was parked by the employee at the Employee Car Parking Facility during a daylight period or daylight periods, as defined in ss. 136(1) of the FBTAA, with a total duration exceeding 4 hours
• c) One of the following applied:
  • i) The Applicant (or associate of the Applicant) or a person under an arrangement with the Applicant (or associate of the Applicant) provided use of the car to the employee (or their associate) on that day;
  • ii) The car was owned by or leased to the employee (or their associate) during these periods;
  • iii) A different person (from (i)) provided use of the car to the Employee (or their associate) during these periods.
• d) The provision of parking at the Employee Car Parking Facility was in respect of the employment of the employee by the Applicant.
• e) On the particular day, the employee had a primary place of employment.
• f) The Employee Car Parking Facility was at, or in the vicinity of, the employee's primary place of employment.
• g) On the relevant day or days, the car was used by the employee in connection with travel by the employee between the employee's place of residence and their primary place of employment.
• h) The provision of car parking by the Applicant for the relevant period was not excluded under the Fringe Benefits Tax Regulations 1992.

Adelaide Airport

Short Term Car Park

12) The Short Term Car Park is located immediately outside the Terminal 1 building. The car park is on the ground level and is uncovered.

Long Term Car Park

13) The Long Term Car Park is located approximately half a kilometre from the Terminal. It is approximately a 7 minute walk to the Terminal and it is also serviced by a free bus. The car park is on the ground level and is uncovered.

Car Park Market Valuation Reports

On 2 June 2007, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2007 to 31 March 2008 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $1.55. The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Adelaide Airport for the FBT years ended 31 March 2007, 31 March 2008 and 31 March 2009.

14) On 4 June 2010, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2009 to 31 March 2010 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $1.65. The sites the subject of the valuation were described as follows:

Car Park 1 - Terminal 1

This site forms part of the main terminal public car park. An area consisting of 255 marked and designed spaces is accessed by authorised pass.

Car Park 2 - Hangar Area

An open-air site consisting of 22 spaces located on the south side of the Hangar area. The site is sealed and security controlled.

Car Park 3 - Catering Building & Freight

An open-air site consisting of 29 spaces located on the apron of the catering building with limited security or controlled access.

The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Adelaide Airport for the FBT year ended 31 March 2010.

Brisbane Airport

Short Term Car Park

15) Short Term Car Parks are located at both the Domestic and International Terminals at Brisbane Airport.

16) The Commissioner accepts that the Short Term Car Park was not a "commercial parking station"^[65] Within the meaning of that phrase in s 39A of the FBTAA. for the 2009 and 2010.

Long Term Car Park

17) Long Term Car Parks are located at both the Domestic and International Terminals at Brisbane Airport.

Car Park Market Valuation Report

18) On 2 June 2007, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2007 to 31 March 2008 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $1.60. The sites the subject of the valuation were described as follows:

Car Park 1 - Domestic Terminal

An open-air site located to the west of the Domestic terminal consisting of 318 spaces. The site is sealed and controlled by boom gate access. A security wire fence encompasses the site.

Car Park 2 - Flight Catering

An open-air site located to the north of the domestic terminal consisting of 252 spaces. The site is sealed and controlled by boom gate access. A security wire fence encompasses the site.

Car Park 3 - International Freight & Engineering

An open-air site consisting of 202 spaces located 700 metres south of the terminal area. The site is sealed and security controlled.

Car Park 4 - International Terminal

An open-air site located to the north of the Domestic terminal consisting of 252 spaces. The site is sealed and controlled by boom gate access. A security wire fence encompasses the site.

The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Brisbane Airport for the FBT years ended 31 March 2007, 31 March 2008 and 31 March 2009.

19) On 4 June 2010, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2009 to 31 March 2010 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $1.90. The sites the subject of the valuation were described as follows:

Car Park 1 - International Terminal

An open-air site located to the north of the domestic terminal consisting of 252 spaces. The site is sealed and controlled by boom gate access. A security wire fence encompasses the site.

Car Park 2 - International Freight & Engineering

An open-air site consisting of 202 spaces located 700 metres south of the terminal area. The site is sealed and security controlled.

Car Park 3 - Staff Car Park Domestic Terminal

An open-air site located to the west of the Domestic terminal consisting of 318 spaces. The site is sealed and controlled by boom gate access. A security wire fence encompasses the site.

Car Park 4 - Flight Catering

An open-air site located to the north of the domestic terminal consisting of 252 spaces. The site is sealed and controlled by boom gate access. A security wire fence encompasses the site.

The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Brisbane Airport for the FBT year ended 31 March 2010.

Cairns Airport

Domestic Uncovered Car Park

20) The Short Term Car Park is located at Terminal 2 of Cairns Airport.

Domestic Long Term Car Park

21) The Long Term Car Park is located at Terminal 2 of Cairns Airport.

International Budget Car Park

22) The International Budget Car Park is located at Terminal 1 of Cairns Airport.

23) The airport offers periodic parking to airport staff. For an annual pass, the fee was $619.80 during the period 3 April 2006 to 31 August 2009 and $657.50 during the period 1 September 2009 to 18 October 2010.

Car Park Market Valuation Report

24) On 2 June 2007, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2007 to 31 March 2008 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $0.60. The site the subject of the valuation was described as follows:

Domestic Terminal

This car park is located across the road from the main terminal and consists of 356 self park spaces divided between short term & long term. The car park is open-air, sealed and accessed by boom gate. Fee payment is by "on foot" pay stations located at the main pedestrian access stations.

The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Cairns Airport for the FBT years ended 31 March 2007, 31 March 2008 and 31 March 2009.

25) On 4 June 2010, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2009 to 31 March 2010 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $0.80. The site the subject of the valuation was described as follows:

Domestic Terminal

This car park is located across the road from the main terminal and consists of 356 self park spaces divided between short term & long term. The car park is open-air, sealed and accessed by boom gate. Fee payment is by "on foot" pay stations located at the main pedestrian access stations.

The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Cairns Airport for the FBT year ended 31 March 2010.

Canberra Airport

Short Stay Car Park

26) The Short Stay Car Park is located at the terminal at Canberra Airport.

27) For the period 1 April 2006 to 31 March 2010, the terms and conditions of parking at the Short Stay Car Park contain the following clause:

This Car Park is available only to airline passengers and meters & greeters of airline passengers.

28) The operator of the Short Term and Long Term car parks also have a number of commercial car parks located in its four business parks [all located within a 5km radius of Canberra Airport]. During the period 1 April 2006 to 31 March 2010 the lowest daily rate charged by these car parks was $5.00, save for one car park which charged $10.00 for the 2006 to 2008 period and then charged $5.00.

Long Term Car Park

29) The Long Term Car Park is located at the terminal at Canberra Airport.

30) For the period 1 April 2006 to 31 March 2010, the terms and conditions of parking at the Long Term Car Park contain the following clause:

This Car Park is available only to airline passengers and meters & greeters of airline passengers.

Car Park Market Valuation Report

31) On 2 June 2007, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2007 to 31 March 2008 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $1.20. The site the subject of the valuation was described as follows:

Car Park 1 - Domestic/International Terminal

This site is located 5 metres from the main terminal and consists of 105 allocated spaces. The car park is open-air, sealed and is accessed by authorised pass. A security fence encompasses the site.

The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Canberra Airport for the FBT years ended 31 March 2007, 31 March 2008 and 31 March 2009.

32) On 4 June 2010, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2009 to 31 March 2010 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $1.25. The site the subject of the valuation was described as follows:

Car Park 1 - Domestic/International Terminal

This site is located 5 metres from the main terminal and consists of 105 allocated spaces. The car park is open-air, sealed and is accessed by authorised pass. A security fence encompasses the site.

The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Canberra Airport for the FBT year ended 31 March 2010.

Gold Coast (Coolangatta) Airport

Short Term Car Park

33) The Short Term Car Park is located directly outside Terminal 1 at Coolangatta Airport.

Long Term Car Park

34) The Long Term Car Park is located directly outside Terminal 1 at Coolangatta Airport.

Long Term Uncovered Car Park

35) The Long Term Uncovered Car Park is located a short distance away from Terminal 1 at Coolangatta airport and is connected to Terminal 1 via a walkway.

Car Park Market Valuation Report

36) On 2 June 2007, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2007 to 31 March 2008 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $1.05. The site the subject of the valuation was described as follows;

Car Park 1 - Domestic Terminal

This site is located 75 metres from the main terminal and consists of approx. 200 allocated spaces. The car park is open-air, sealed and is accessed by authorised pass. A security fence encompasses the site.

The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Coolangatta Airport for the FBT years ended 31 March 2007, 31 March 2008 and 31 March 2009.

37) On 4 June 2010, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2009 to 31 March 2010 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $0.85. The site the subject of the valuation was described as follows:

Domestic Terminal

The car park is located across the road from the main terminal and consists of 800 self park spaces divided between short term and long term. The car park is open-air, sealed and is accessed by authorised pass or by ticket dispenser.

The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Coolangatta Airport for the FBT year ended 31 March 2010.

Melbourne Airport

Short Term Car Park

38) The Short Term Car Park is located at the Terminals at Melbourne Airport. The Short Term Car Park is covered and connected to the terminal by a walkway.

Multilevel Long Term Car Park

39) The Long Term Car Park is located at the Terminals at Melbourne Airport. The Long Term Car Park is covered and connected to the terminal by a walkway.

Remote Long Term Car Park

40) The Remote Long Term Car Park is located approximately half a kilometre from the Terminals at Melbourne Airport. The Remote Long Term Car Park is uncovered and is accessed via a complimentary shuttle bus from the terminals.

Car Park Market Valuation Report

41) On 2 June 2007, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2007 to 31 March 2008 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $2.05. The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Melbourne Airport for the FBT years ended 31 March 2007, 31 March 2008 and 31 March 2009.

42) On 4 June 2010, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2009 to 31 March 2010 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis at $1.90 for Car Park 1 - Long Term Car Park, $2.35 for Car Park 2 - Catering and Cargo and $2.35 for Car Park 3 - Domestic Terminal Admin and Dock. The sites the subject of the valuation were described as follows:

Car Park 1 - Long Term

Car Park 2 - Catering & Cargo

Car Park 3 - Domestic Terminal Admin & Dock

All the car parks listed above are open-air sites located in the proximity of the apron to the commercial premises occupied by the client. Security fencing & gates envelop the premises (excluding Grants Road). Dedicated parking spaces are allotted by the airport owner to the client [and] are marked accordingly by signpost. All car parks are situated between 500 to 1,000 metres to the main terminal.

These values were used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Melbourne Airport for the FBT year ended 31 March 2010.

Perth Airport

Short Term Car Park

43) Short Term Car Parks are located at both the International and Domestic Terminals.

Long Term Car Park

44) Long Term Car Parks are located at both the International and Domestic Terminals. The Long Term Car Park is uncovered. It is located approximately half a kilometre from the airport terminals and is serviced by a shuttle bus to the terminals (only).

Car Park Market Valuation Report

45) On 2 June 2007, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2007 to 31 March 2008 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $1.50. The sites the subject of the valuation were described as follows:

Car Park 1 - International (Freight, Catering & Engineering)

Three open-air, sealed sites consisting a total of 115 spaces. Access to the sites is uncontrolled with security fencing encompassing each car park.

Car Park 2 - International Administration

An open-air site consisting of 93 spaces. The car park is sealed, security fenced and provides boom gate control to users.

The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Perth Airport for the FBT years ended 31 March 2007, 31 March 2008 and 31 March 2009.

46) On 4 June 2010, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2009 to 31 March 2010 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $1.70. The sites the subject of the valuation were described as follows:

Car Park -1

International-Freight, Catering & Engineering

Three open-air, sealed sites consisting a total of 320 spaces located on or near Affleck Road. Access to the sites is uncontrolled with security fencing accompanying each car park.

Car Park-2

Domestic - Administration

An open-air site located to the south of the terminal consisting of approximately 700 spaces. The car park is sealed, security fenced and provides boom gate control to validated users for exclusive use of terminal staff.

The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Perth Airport for the FBT year ended 31 March 2010.

Sydney Airport

Domestic Short Stay Car Park

47) The Short Term Car Park is located at the Domestic Terminal.

Car Park Market Valuation Report

48) On 2 June 2007, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2007 to 31 March 2008 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $4.45 for Sector A (described as Prime Terminal Location), $3.50 for Sector B (described as Secondary & Long Stay) and $2.10 for sector C (described as Peripheral Commercial). These values were used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Sydney Airport for the FBT years ended 31 March 2007, 31 March 2008 and 31 March 2009.

49) On 4 June 2010, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2009 to 31 March 2010 which valued a car parking space, on a per day per space basis at $4.25 for the Sector A, $3.70 for Sector B and $2.20 for Sector C. These values were used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Sydney Airport for the FBT year ended 31 March 2010.

Townsville Airport

Short Term Car Park

50) The Short Term Car Park is located the Domestic Terminal. The Short Term Car Park is located on the ground floor and is uncovered.

Long Term Car Park

51) The Long Term Car Park is located opposite the Townsville Airport complex. The Long Term Car Park is located on the ground floor and is uncovered.

Car Park Market Valuation Report

52) On 2 June 2007, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2007 to 31 March 2008 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $0.60. The site the subject of the valuation was described as follows:

Domestic Terminal

This car park is located across the road from the main terminal and consists of approximately 300 short term self park spaces. The long term car park is located a further 250 metres from the terminal. Both car parks are open-air, sealed and accessed by boom gate. Fee payment is by "on foot" pay stations located at the main pedestrian access points.

The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Townsville Airport for the FBT years ended 31 March 2007, 31 March 2008 and 31 March 2009.

53) On 4 June 2010, Qantas obtained a Car Park Market Valuation Report from National Parking Consultants for the period 1 April 2009 to 31 March 2010 which valued a car parking space at the premises the subject of the valuation, on a per day per space basis, at $0.70.

Domestic Terminal

This car park is located across the road from the main terminal and consists of approximately 300 short term self park spaces. The long term car park is located a further 250 metres from the terminal. Both car parks are open-air, sealed and accessed by boom gate. Fee payment is by "on foot" pay stations located at the main pedestrian access points.

The value was used for the purpose of calculating the taxable value of car parking fringe benefits provided to its employees at Employee Car Parking Facilities located at Townsville Airport for the FBT year ended 31 March 2010.

Car parking rates at each airport

54) As part of his investigations into the operations and structure of the Airport Car Parks the Commissioner obtained information relating to the prices charge for car parking, for various periods at times, for each of the Airport Car Parks for the FBT years ended 30 March 2007, 30 March 2008, 30 March 2009 and 30 March 2010.

55) A list of these rates as ascertained by the Commissioner is set out at Appendix 1 .

The Objections

56) On 20 June 2011 the Applicant objected against the assessments it received for each of the FBT years ended 31 March 2007, 31 March 2008, 31 March 2009 and 31 March 2010 under Part IVC of the Taxation Administration Act 1953.^[66] T12, pages 138–176 of the “T” documents. Objections were also lodged by Australian Airlines Limited, Caterair Airport Services Pty Limited, Eastern Australia Airlines Pty Ltd, Express Ground Handling Pty Limited, Jetstar Airways Pry Ltd, Q Catering Cairns Pty Limited, Q Catering Limited, Qantas Defence Services Pty Limited, Qantas Flight Catering Limited, Sunstate Airlines (QLD) Pty Limited, Team Jetstar Pty Limited.

57) On 13 September 2012, the Commissioner issued a notice of objection decision in respect of the Objection lodged by the Applicant.^[67] T36. This notice allowed the objection in part

58) On 12 November 2012 the Applicant lodged an Application for Review of Decision with the Administrative Appeals Tribunal ( AAT ) seeking review of the decision of the Respondent.^[68] T1.

Appendix 1

Adelaide Airport location

Short Term Car Park

Rate	2007	2008	2009	2010
0-1 hour	$4	$4	$4	$4
1-2 hours	$7	$7	$7	$7
2-3 hours	$9	$9	$9	$9
3-4 hours	$12	$12	$12	$12
4-5 hours	$14	$14	$14	$14
5-6 hours	$16	$16	$16	$16
6-7 hours	$18	$18	$18	$18
7-8 hours	$20	$20	$20	$20
8-9 hours	$22	$22	$22	$22
9-10 hours	$24	$24	$24	$24
10-11 hours	$25	$25	$30	$30
11-12	$25	$25	$30	$30
1 day	$25	$25	$30	$30
2 days	$50	$50	$60	$60
3 days	$75	$75	$90	$90
Per additional day thereafter	$25	$25	$30	$30

Long Term Car Park

Rate	2007	2008	2009	2010
1 day	$15	$15	$20	$20
2 days	$30	$30	$35	$35
3 days	$40	$40	$45	$45
4 days	$50	$50	$55	$55
5 days	$60	$60	$60	$60
6 days	$70	$70	$65	$65
7 days	$80	$80	$70	$70
8 days	$90	$90	$75	$75
9 days	$100	$100	$80	$80
10 days	$110	$110	$85	$85
Per additional day thereafter	$5.00	$5.00	$5.00	$5.00

Brisbane Airport location

Short Term Domestic Car Park

Rate	2007	2008	2009	2010
20 Minutes	0	$0	$2	$2
30 Minutes	$5	$5	$6	$6
1 hour	$8	$8	$10	$10
2 hours	$10	$10	$12	$12
3 hours	$12	$12	$14	$14
4 hours	$14	$14	$16	$16
5 hours	$16	$16	$18	$18
6 hours	$18	$18	$45	$45
15 hours	$36	$36	$45	$45

Long Term Domestic Car Park

Rate	2007	2008	2009	2010
1 day	$22	$22	$25	$25
2 days	$39	$39	$45	$45
3 days	$56	$56	$65	$65
4 days	$73	$73	$85	$85
5 days	$82	$82	$95	$95
6 days	$91	$91	$105	$105
7 days	$91	$91	$105	$105

Note: Every 7th day is free of charge.

Cairns Airport location

The Domestic Uncovered Car Park

Domestic Long Term Car Park, and International Budget Car Park

Rate	2007	2008	2009	2010
0-2 hours	$3.00	$3.00	$3.00	$3.00
2-4 hours	$6.00	$6.00	$6.00	$6.00
4-6 hours	$8.00	$8.00	$8.00	$8.00
6-7 hours	$10.00	$10.00	$10.00	$10.00
7-8 hours	$11.00	$11.00	$11.00	$11.00
8-9 hours	$12.00	$12.00	$12.00	$12.00
9-10 hours	$13.00	$13.00	$13.00	$13.00
10-24 hours	$14.00	$14.00	$14.00	$14.00
1-2 day	$26.00	$26.00	$26.00	$26.00
2-3 days	$38.00	$38.00	$38.00	$38.00
3-4 days	$50.00	$50.00	$50.00	$50.00
4-5 days	$62	$62	$62	$62
5-6 days	$74	$74	$74	$74
6-7 days	$86	$86	$86	$86
7-8 days	$98	$98	$98	$98
8-9 days	$110	$110	$110	$110
9-10 days	$122	$122	$122	$122
10-11 days	$134	$134	$134	$134
11-12 days	$146	$146	$146	$146
12-13 days	$158	$158	$158	$158
13-14 days	$170	$170	$170	$170
Per day thereafter	$12	$12	$12	$12
Staff Single Exit	$3.80	$3.80	$3.80	$3.80
Staff Quarterly Pass	$155	$155	$155	$155
Staff Bi-annual Pass	$309	$309	$309	$309
Staff Annual	$619	$609	$609	$609

Canberra Airport location

Short Stay Car Park

Rate	2007	2008
0-0.5 hrs	$1.50	$1.50
0.5 1.0 hrs	$2.00	$2.00
1-1.5 hrs	$3.00	$3.00
1.5-2.0 hrs	$4.00	$4.00
2.0-3.0 hrs	$6.00	$6.00
3.0 4.0 hrs	$7.50	$7.50
4.0-5.0 hrs	$10.00	$10.00
5.0-24 hrs	$19.50	$22.00
24 hrs-24.5 hrs	$21.00	$23.50
24.5 hrs-25 hrs	$21.50	$24.00
25 hrs- 25.5 hrs	$22.50	$25.00
25.5 hrs-26 hrs	$23.50	$26.00
26 hrs-27 hrs	$25.50	$28.00
27 hrs-28 hrs	$27.00	$29.50
28 hrs-29 hrs	$29.50	$32.00
29 hrs-48 hrs	$39.00	$44.00
Each additional day	$15.00	$22.00

Short Stay Car Park

Rate	2009	2010
0-20 mins	$1.50	$1.50
21-40 mins	$2.00	$2.00
41-60 mins	$2.50	$2.50
1-1.5 hrs	$3.00	$3.00
1.5-2.0 hrs	$4.00	$4.00
2.0-3.0 hrs	$6.00	$6.00
3.0 4.0 hrs	$7.50	$7.50
4.0-5.0 hrs	$10.00	$10.00
5.0-24 hrs	$25.00	$25.00
24 hrs-26 hrs	$29.00	$29.00
26 hrs-29 hrs	$32.50	$32.50
29 hrs- 48.00 hrs	$50.00	$50.00
48 hrs-50 hrs	$54.00	$54.00
50 hrs-53 hrs	$57.50	$57.50
54 hrs-72 hrs	$75.00	$75.00
72 hrs-74 hrs	$79.00	$79.00
74 hrs-75 hrs	$85.00	$85.00
4 days	$100.00	$100.00
96 hrs-98 hrs	$104.00	$104.00
98 hrs-101 hrs	$110.00	$110.00
5 days	$125.00	$125.00
120 hrs-122 hrs	$129.00	$129.00
122 hrs-125 hrs	$135.00	$135.00
6 days	$150.00	$150.00
144 hrs-146 hrs	$154.00	$154.00
146 hrs-149 hrs	$160.00	$160.00
7 days	$175.00	$175.00
Each additional day	$25.00	$25.00

Long Stay Car Park

Rate	2007	2008
0-0.5 hrs	$1.50	$1.50
0.5 1.0 hrs	$2.00	$2.00
1-1.5 hrs	$3.00	$3.00
1.5-2.0 hrs	$4.00	$4.00
2.0-3.0 hrs	$6.00	$6.00
3.0 4.0 hrs	$7.50	$7.50
4.0-5.0 hrs	$10.00	$10.00
5.0-24 hrs	$14.00	$15.00
24-25 hrs	$16.00	$17.00
25-26 hrs	$18.00	$19.00
26-27 hrs	$20.00	$21.00
27-28 hrs	$22.00	$23.00
28-29 hrs	$24.00	$25.00
29-30 hrs	$26.00	$27.00
30-48 hrs	$28.00	$30.00
48-49 hrs	$30.00	$32.00
49-50 hrs	$32.00	$34.00
50-51 hrs	$34.00	$36.00
51-52 hrs	$36.00	$38.00
52-53 hrs	$38.00	$40.00
53-54 hrs	$40.00	$45.00
54-72 hrs	$42.00	$52.00
72-73 hrs	$44.00	$59.00
73-74 hrs	$46.00	$66.00
74-75 hrs	$48.00	$73.00
75-96 hrs	$49.00	$80.00
Each additional day	$7.00	$7.00

Long Stay Car Park

Rate	2009	2010
0-20 mins	$1.50	$1.50
21-40 mins	$2.00	$2.00
41-60 mins	$2.50	$2.50
1-1.5 hrs	$3.00	$3.00
1.5-2.0 hrs	$4.00	$4.00
2.0-3.0 hrs	$6.00	$6.00
3.0 4.0 hrs	$7.50	$7.50
4.0-5.0 hrs	$10.00	$10.00
5.0-24 hrs	$17.00	$17.00
24 hrs-26 hrs	$22.00	$22.00
26 hrs-29 hrs	$27.50	$27.00
29 hrs- 48.00 hrs	$34.00	$34.00
48 hrs-50 hrs	$39.00	$39.00
50 hrs-53 hrs	$44.00	$44.00
54 hrs-72 hrs	$51.00	$51.00
Each additional day	$9.00	$9.00

Gold Coast Airport location

Short Term Car Park

Rate	2007	2008	2009	2010
30 Mins	$3.00	$3.00	$3.00	$3.00
1 hour	$4.00	$4.00	$4.00	$4.00
2 hours	$6.00	$6.00	$6.00	$6.00
3 hours	$7.00	$7.00	$7.00	$7.00
4 hours	$8.00	$8.00	$8.00	$8.00
5 hours	$9.00	$9.00	$9.00	$9.00
6 hours	$10.00	$10.00	$10.00	$10.00
7 hours	$11.00	$11.00	$11.00	$11.00
8 hours	$13.00	$13.00	$13.00	$13.00
9 hours	$15.00	$15.00	$15.00	$15.00
10 hours	$17.00	$17.00	$17.00	$17.00

11-23 hours, an additional $2 per hour.

Long Term Undercover Car Park

Rate	2007	2008	2009	2010
1 day	$18.00	$18.00	$18.00	$18.00
2 days	$36.00	$36.00	$36.00	$36.00
3 days	$54.00	$54.00	$54.00	$54.00
4 days	$72.00	$72.00	$72.00	$72.00
Each additional day after 4 days	$8.00	$8.00	$8.00	$8.00

Long Term Uncovered Car Park

Rate	2010
1 day	$13.00
2 days	$26.00
3 days	$39.00
4 days	$52.00
Each additional day	$8.00
After 4 days

Melbourne Airport location

Short Term Car Park

Rate	2007	2008	2009	2010
0-20 minutes	$2	$2	$3	$3
20-40 minutes	$6	$6	$6	$6
40-60 minutes	$8	$10	$12	$12
1 -2 hours	$12	$18	$18	$18
2-3 hours	$15	$18	$20	$20
3-4 hours	$18	$30	$30	$35
4-10 hours	$28	$30	$40	$49
10-24 hours	$35	$42	$45	$49

Parking for more than one day is permitted.

Multilevel Long Term Car Park

Rate	2007	2008	2009	2010
1 day			$45	$49
2 days			$90	$90
3 days			$95	$95
4 days			$100	$99
5 days			$110	$109
6 days			$120	$119
7 days			$140	$129
8 days			$160	$139
9 days			$180	$149
10 days			$200	$159
11 days			$220	$169
12 days			$240	$179
13 days			$260	$189
14 days			$280	$199
Per day thereafter			$20	$10

Remote Long Term Car Park

Rate	2007	2008	2009	2010
1 day	$19	$25	$25	$25
2 days	$25	$35	$40	$45
3 days	$35	$40	$50	$65
4 days	$39	$50	$60	$66
5 days	$55	$60	$65	$67
6 days	$60	$65	$65	$68
7 days	$69	$69	$69	$69
8 days	$75	$80	$85	$89
9 days	$79	$85	$99	$99
10 days	$85	$90	$105	$105
11 days	$89	$95	$110	$110
12 days	$89	$95	$115	$115
13 days	$89	$95	$120	$120
14 days	$89	$95	$125	$125
Per day thereafter			$5	$5

Perth Airport location

Short Term Car Park

Rate	2007	2008	2009	2010
5 minutes	$0	$0	$0	$3.80
5-30 minutes	$3.70	$3.70	$3.70	$3.80
1 hour	$5.20	$5.20	$5.20	$5.40
2 hours	$7	$7	$7	$7.40
3 hours	$8	$8	$8	$8.40
4 hours	$9	$9	$9	$9.40
5 hours	$10	$10	$10	$10.40
6 hours	$11	$11	$11	$11.40
1 day	$17	$17	$25	$26

Long Term Car Park

Rate	2007	2008	2009	2010
1 day	$17	$17	$17	$17
2 days	$34	$34	$34	$34
3 days	$51	$51	$51	$51
4 days	$53	$53	$56	$58
5 days	$55	$55	$61	$65
6 days	$57	$57	$66	$72
7 days	$59	$59	$71	$79

During the 2010 FBT year parking rates were available for shorter terms of between 30 minutes and 6 hours at rates equal to those charged at the Short Term Car Park.

Sydney Airport location

Domestic Short Stay Car Park

Rate	2007	2008	2009	2010
0-30 minutes	$7	$7	$7	$7
30-60 minutes	$13	$14	$15	$15
1-2 hours	$20	$20	$20	$21
2-3 hours	$24	$24	$25	$26
3-24 hours	$42	$46	$50	$52

Rate applies every 24 hour

Townsville Airport location

Short Term Car Park

Rate	2007	2008	2009	2010
0-30 minutes	$4.00	$4.00	$4.00	$4.00
30 min to 1 hr	$4.00	$4.00	$4.00	$4.00
1-1.5 hr	$4.00	$4.00	$4.00	$4.00
1-2 hr	$4.00	$4.00	$4.00	$4.00
2-2.5 hr	$6.00	$6.00	$6.00	$6.00
2.5-3 hr	$6.00	$6.00	$6.00	$6.00
3-3.5 hr	$8.00	$8.00	$8.00	$8.00
3.5-4 hr	$8.00	$8.00	$8.00	$8.00
4-4.5 hr	$10.00	$10.00	$10.00	$10.00
4.5-5 hr	$10.00	$10.00	$10.00	$10.00
5-6 hr	$12.00	$12.00	$12.00	$12.00
6-7 hr	$12.00	$12.00	$12.00	$12.00
7-8 hr	$12.00	$12.00	$12.00	$12.00
8-9 hr	$12.00	$12.00	$12.00	$12.00
9-10 hr	$12.00	$12.00	$12.00	$12.00
24 hr	$12.00	$12.00	$12.00	$12.00

Long Term Car Park

Rate	2007	2008	2009	2010
1 day	$12.00	$12.00	$12.00	$12.00
1-2 days	$24.00	$24.00	$24.00	$24.00
2-3 days	$36.00	$36.00	$36.00	$36.00
3-4 days	$48.00	$48.00	$48.00	$48.00
4-5 days	$60.00	$60.00	$60.00	$60.00
Additional per day thereafter	$12.00	$12.00	$12.00	$12.00