Fringe Benefits Tax Assessment Act 1986
This Act may be cited as the Fringe Benefits Tax Assessment Act 1986. SECTION 2 2 COMMENCEMENT
This Act shall come into operation on the day on which it receives the Royal Assent. SECTION 2A 2A APPLICATION OF THE CRIMINAL CODE
Chapter 2 of the Criminal Code applies to all offences against this Act.
Note:
Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
View history note
Hide history noteThis Act extends to every external Territory referred to in the definition of Australia .
2B(2)
Except so far as the contrary intention appears, this Act extends to acts, omissions, matters and things outside Australia, whether or not in a foreign country.
2B(3)
Except where otherwise expressly provided, this Act extends to matters and things whether occurring before or after the commencement of this Act.
2B(4)
This Act binds the Crown in each of its capacities.
The Commissioner has the general administration of this Act.
Note:
An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.
The Commissioner shall, as soon as practicable after 30 June in each year, prepare and furnish to the Minister a report on the working of this Act, including any breaches or evasions of this Act of which the Commissioner has notice.
4(2) [Report to be tabled]The Minister shall cause a copy of a report furnished under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
4(3) [Periodic report]For the purposes of section 34C of the Acts Interpretation Act 1901, a report that is required by subsection (1) to be furnished as soon as practicable after 30 June in a year shall be taken to be a periodic report relating to the working of this Act during the year ending on that 30 June.
5 (Repealed) SECTION 5 SECRECY(Repealed by No 145 of 2010)
The following is a simplified outline of this Division:
This Division explains how to work out an employer's fringe benefits taxable amount for a year of tax. This is the amount on which the employer must pay fringe benefits tax (see section 66).
(Repealed by No 162 of 2015)
5B(1A) Year of tax 2000-2001 and later years.
Subject to subsection (1D), an employer's
fringe benefits taxable amount
for the year of tax beginning on 1 April 2000 or a later year of tax is the sum of the subsection (1B) amount and the subsection (1C) amount.
Note:
Other provisions affect the fringe benefits taxable amount. For example, see section 124 (about assessments).
The subsection (1B) amount is the amount worked out using the formula:
| Type 1 aggregate
fringe benefits amount |
× |
FBT rate + GST rate
(1 − FBT rate) × (1 + GST rate) × FBT rate |
The subsection (1C) amount is the amount worked out using the formula:
| Type 2 aggregate
fringe benefits amount |
× |
1
1 − FBT rate |
If any benefits provided in respect of the employment of an employee of an employer are exempt benefits under section 57A, the employer's fringe benefits taxable amount for the year of tax beginning on 1 April 2000 or a later year of tax as worked out under subsection (1A) is increased by the employer's aggregate non-exempt amount for the year of tax concerned.
An employer's
aggregate non-exempt amount
for the year of tax is worked out as follows.
Method statement
Step 1.
For each employee, add:
(a) the individual grossed-up type 1 non-exempt amount (see subsection (1F)) in relation to the employer for the year of tax; and
(b) the individual grossed-up type 2 non-exempt amount (see subsection (1G)) in relation to the employer for the year of tax.
The result is the individual grossed-up non-exempt amount for the employee.
Step 2.
If:
(a) (Repealed by No 142 of 2003)
(b) the employer is a government body and the duties of the employment of one or more employees are as described in paragraph 57A(2)(b) (which is about duties of employment being exclusively performed in or in connection with certain hospitals); or
(c) the employer is a public hospital; or
(ca) the employer provides public ambulance services or services that support those services and the employee is predominantly involved in connection with the provision of those services; or
(d) the employer is a hospital described in subsection 57A(4) (which is about hospitals carried on by certain societies and associations that are exempt from income tax);
subtract $17,000 from the individual grossed-up non-exempt amount for each employee of the employer referred to in paragraph (c), (ca) or (d), or each employee referred to in paragraph (b), for the year of tax. However, if the individual grossed-up non-exempt amount for such an employee is equal to or less than $17,000, the amount calculated under this step for the employee is nil.
Step 3.
If step 2 does not apply in respect of one or more employees of the employer, reduce the individual grossed-up non-exempt amount for each such employee by $30,000, but not below nil.
Step 4.
If the amount calculated under step 2 or 3 in respect of an employee is positive, reduce that amount (but not below nil) by the lesser of:
(a) $5,000; and
(b) so much of the employee's individual grossed-up non-exempt amount as relates to benefits covered by subsection (1M) (about salary packaged meal entertainment and entertainment facility leasing benefits).
Step 5.
Add together the amounts calculated under step 4 in relation to the employees of the employer. The total amount is the employer's aggregate non-exempt amount for the year of tax.
For the purposes of step 1 in the method statement in subsection (1E), the individual grossed-up type 1 non-exempt amount of an employee in relation to the employer for the year of tax is:
| Type 1
individual base non-exempt amount |
× |
FBT rate + GST rate
(1 − FBT rate) × (1 + GST rate) × FBT rate |
For the purposes of step 1 in the method statement in subsection (1E), the individual grossed-up type 2 non-exempt amount of an employee in relation to the employer for the year of tax is:
| Type 2
individual base non-exempt amount |
× |
1
(1 − FBT rate) |
An employee's type 1 individual base non-exempt amount in relation to the employer for the year of tax is worked out by adding the amounts worked out under step 3 of the method statement in subsection (1K) and step 3 of the method statement in subsection (1L).
An employee's type 2 individual base non-exempt amount in relation to the employer for the year of tax is worked out by adding the amounts worked out under step 4 of the method statement in subsection (1K) and step 4 of the method statement in subsection (1L).
An employee's subsection (1K) amounts for the year of tax are worked out as follows.
Method statement
Step 1.
Work out under subsection 135Q(3) for each of the employer's employees the amount that would be the employee's individual fringe benefit amount for the year of tax in respect of the employee's employment by the employer if subsection 135Q(1) were amended:
(a) by omitting "or 58"; and
(b) by omitting "one of those sections" from paragraph (b) and "those sections" from paragraph (c) and substituting in each case "that section".
Step 2.
Identify the benefits taken into account in step 1 that are GST-creditable benefits (see section 149A).
Step 3.
So much of the amount worked out under step 1 that relates to the benefits identified under step 2 is the step 3 of subsection (1K) amount for the individual.
Step 4.
The remainder of the amount is the step 4 of subsection (1K) amount for the individual.
An employee's subsection (1L) amounts for the year of tax are worked out as follows.
Method statement
Step 1.
Work out for each employee his or her share (if any) of the amounts that, if section 57A did not apply, would be the taxable values of the excluded fringe benefits for the year of tax in respect of the employee's employment by the employer if those benefits were not excluded fringe benefits, but disregarding benefits:
(a) that constitute the provision of meal entertainment as defined in section 37AD (whether or not the employer made an election under section 37AA); or
(b) that are car parking fringe benefits; or
(c) whose taxable values are wholly or partly attributable to entertainment facility leasing expenses.
Step 2.
Identify the benefits taken into account in step 1 that are GST-creditable benefits (see section 149A).
Step 3.
So much of the amount worked out under step 1 that relates to the benefits identified under step 2 is the step 3 of subsection (1L) amount for the individual.
Step 4.
The remainder of the amount is the step 4 of subsection (1L) amount for the individual.
Salary packaged meal entertainment and entertainment facility leasing benefits
5B(1M)
This subsection covers a benefit that is provided under a salary packaging arrangement if: (a) the benefit is constituted by the provision of meal entertainment (as defined in section 37AD, whether or not the employer has elected that Division 9A of Part III apply to the employer); or (b) the benefit is wholly or partly attributable to entertainment facility leasing expenses.
5B(2) Using aggregate fringe benefits amount for most recent base year.
This section is subject to section 135G.
Note:
Section 135G allows the fringe benefits taxable amount to be worked out using the employer's aggregate fringe benefits amount from an earlier year of tax in special cases.
In this section:
FBT rate
means the rate of fringe benefits tax for the year of tax.
GST rate
means the rate of goods and services tax payable under the A New Tax System (Goods and Services Tax) Act 1999 for the year of tax.
type 1 aggregate fringe benefits amount
means the employer's type 1 aggregate fringe benefits amount for the year of tax worked out under subsection 5C(3).
type 2 aggregate fringe benefits amount
means the employer's type 2 aggregate fringe benefits amount for the year of tax worked out under subsection 5C(4).
Work out an employer's
aggregate fringe benefits amount
for a year of tax earlier than the year of tax beginning on 1 April 2000 as follows:
Method statement
Step 1.
Work out under Division 3 for each of the employer's employees the individual fringe benefits amount for the year of tax in respect of the employment of the employee by the employer.
Step 2.
Add up all the individual fringe benefits amounts worked out under Step 1.
Step 3.
Add up the taxable value of every excluded fringe benefit (other than an amortised fringe benefit) relating to an employee of the employer, the employer and the year of tax.
Note:
Subsection 5E(3) explains what is an excluded fringe benefit.
Step 4.
Add the total from Step 2 to the total from Step 3.
Note:
The result of Step 4 is the employer's aggregate fringe benefits amount if there are no amortised fringe benefits or reducible fringe benefits in relation to the employer.
Step 5.
Add to the total from Step 4 the amortised amount for the year of tax of each amortised fringe benefit (if any) relating to an employee of the employer, the employer and any year of tax.
Step 6.
Subtract from the total from Step 5 the reduction amount for the year of tax of each reducible fringe benefit (if any) relating to an employee of the employer, the employer and the year of tax.
An employer's aggregate fringe benefits amount for the year of tax beginning on 1 April 2000 or a later year of tax is the sum of the employer's type 1 aggregate fringe benefits amount and the employer's type 2 aggregate fringe benefits amount for the year of tax.
Work out an employer's
type 1 aggregate fringe benefits amount
for a year of tax as follows.
Method statement
Step 1.
Identify the fringe benefits in respect of each of the employer's employees that are GST-creditable benefits (see section 149A), and work out under Division 3 for each of those employees the individual fringe benefits amount for the year of tax in relation to those fringe benefits.
Step 2.
Add up all the individual fringe benefits amounts worked out under step 1.
Step 3.
Identify the excluded fringe benefits (other than an amortised fringe benefit) for the year of tax in respect of each of the employer's employees that are GST-creditable benefits, and add up the taxable values of all those excluded fringe benefits.
Note 1:
Subsection 5E(3) explains what is an excluded fringe benefit.
Note 2:
Section 149A explains what is a GST-creditable benefit.
Step 4.
Add the total from step 2 to the total from step 3.
Note:
The result of step 4 is the employer's type 1 aggregate fringe benefits amount if there are no amortised amounts in relation to the employer.
Step 5.
Add to the total from step 4 the amortised amount for the year of tax of each amortised fringe benefit (if any) relating to an employee of the employer, the employer and any year of tax that are GST-creditable benefits. The total amount is the employer's
type 1 aggregate fringe benefits amount
for the year of tax.
Note:
Section 65CA explains what is an amortised fringe benefit.
Work out an employer's
type 2 aggregate fringe benefits amount
for a year of tax as follows.
Method statement
Step 1.
Identify, in respect of each of the employer's employees, the fringe benefits that are not taken into account under step 1 of the method statement in subsection (3), and work out under Division 3 for each of those employees the individual fringe benefits amount for the year of tax in relation to those fringe benefits.
Step 2.
Add up all the individual fringe benefits amounts worked out under step 1.
Step 3.
Identify, in respect of each of the employer's employees, the excluded fringe benefits (other than an amortised fringe benefit) for the year of tax that are not taken into account under step 3 of the method statement in subsection (3), and add up the taxable values of all those excluded fringe benefits.
Note:
Subsection 5E(3) explains what is an excluded fringe benefit.
Step 4.
Add the total from step 2 to the total from step 3.
Note:
The result of step 4 is the employer's type 2 aggregate fringe benefits amount if there are no amortised amounts or reducible fringe benefits in relation to the employer.
Step 5.
Add to the total from step 4 the amortised amount for the year of tax of each amortised fringe benefit (if any) relating to an employee of the employer, the employer and any year of tax that is not taken into account under step 5 of the method statement in subsection (3).
Note 1:
The result of step 5 is the employer's type 2 aggregate fringe benefits amount if there are no reducible fringe benefits in relation to the employer.
Note 2:
Section 65CA explains what is an amortised fringe benefit.
Step 6.
Subtract from the total from step 5 the reduction amount for the year of tax of each reducible fringe benefit (if any) relating to an employee of the employer, the employer and the year of tax. The total amount is the employer's type 2 aggregate fringe benefits amount for the year of tax.
Note:
Other provisions may affect the aggregate fringe benefits amount. For example, see section 67 (about arrangements to avoid or reduce tax), section 135L (about reducing the aggregate fringe benefits amount of an employer who is in business for only part of a year of tax) and section 152B (about entertainment facility leasing expenses).
The following is a simplified outline of this Division:
An employee's individual fringe benefits amount is the employee's share of the taxable value of fringe benefits (with some exclusions) provided in respect of his or her employment.
This section explains how to work out an employee's individual fringe benefits amount for a year of tax in respect of the employee's employment by an employer.
5E(2) General rule.The individual fringe benefits amount is the sum of the employee's share of the taxable value of each fringe benefit that relates to the year of tax and is provided in respect of the employment other than an excluded fringe benefit.
5E(3) What is an excluded fringe benefit ?An excluded fringe benefit is a fringe benefit:
(a) that is:
(i) constituted by the provision of meal entertainment (as defined in section 37AD, whether or not the employer has elected that Division 9A of Part III apply to the employer); and
(ii) not provided under a salary packaging arrangement; or
(b) that is a car parking fringe benefit (see subsection 136(1)); or
(c) that is:
(i) a benefit whose taxable value is wholly or partly attributable to entertainment facility leasing expenses; and
(ii) not provided under a salary packaging arrangement; or
(d) (Repealed by No 52 of 2000)
(e) whose taxable value is worked out under section 59 (about remote area residential fuel); or
(f) whose taxable value is reduced under section 60 (about remote area housing); or
(g) that is an amortised fringe benefit (see subsection 136(1)); or
(h) that is a reducible fringe benefit (see subsection 136(1)); or
(i) that is a benefit prescribed by the regulations for the purposes of this paragraph; or
(j) that relates to occasional travel to a major population centre in Australia provided to employees and family members resident in a location that is not in or adjacent to an eligible urban area; or
(k) that relates to freight costs for foodstuffs provided to employees resident in a location that is not in or adjacent to an eligible urban area; or
(l) that is provided to address a security concern:
(i) relating to the personal safety of an employee, or an associate of an employee; and
(ii) that arises in respect of the employee's employment.
(a) section 135G applies for working out the employer's liability to pay tax for the year of tax; and
(b) one or more fringe benefits are provided in relation to the year of tax in respect of the employee's employment by the employer;
the employee's individual fringe benefits amount is the amount determined by the employer in writing. This subsection has effect despite subsection (2).
Note:
Section 135G allows use of the employer's aggregate fringe benefits amount for an earlier year of tax in working out the employer's liability for tax for the current year of tax.
5E(5) Determining individual fringe benefits amounts.In making a determination under subsection (4), the employer must:
(a) ensure that the total of the amount or amounts determined by the employer under that subsection for the year of tax equals the aggregate fringe benefits amount used for working out the employer's liability to pay tax for the year of tax; and
(b) if that subsection applies to 2 or more of the employer's employees for the year of tax - act reasonably, having regard to the fringe benefit or fringe benefits provided in relation to the year of tax in respect of each employee's employment. 5E(6) Security concerns relating to employees or associates.
A fringe benefit referred to in paragraph (3)(l) is an excluded fringe benefit only to the extent that its provision is consistent with a threat assessment in relation to the employee or associate made by a person who is recognised by:
(a) a relevant industry body or government body; or
(b) the Commissioner;
as competent to make threat assessments.
This section explains how to work out an employee's share of the taxable value of a fringe benefit relating to the employee, an employer and a year of tax.
5F(2) Individually-valued benefit provided in respect of one employee.The employee's share is 100% of the taxable value if:
(a) the fringe benefit was provided in respect of the employment of the employee by the employer and was not provided in respect of the employment of anyone else; and
(b) the taxable value of the fringe benefit was worked out for that particular fringe benefit (not merely as part of the total taxable value of fringe benefits in a class including that particular benefit). 5F(3) Individually-valued benefit shared by 2 or more employees.
The employee's share is so much of the taxable value as is reasonably attributable to the provision of the fringe benefit in respect of the employee's employment by the employer, taking account of any relevant matters, if:
(a) the fringe benefit was provided in respect of the employment of the employee by the employer and in respect of the employment of another employee; and
(b) the taxable value of the fringe benefit was worked out for that particular fringe benefit (not merely as part of the total taxable value of fringe benefits in a class including that particular benefit). 5F(4) Benefits valued in aggregate.
(a) the fringe benefit is one of a class of fringe benefits provided in respect of the employment of one or more employees by the employer; and
(b) the total taxable value of all the fringe benefits in the class is worked out by a single calculation;
the employee's share of the taxable value of the fringe benefit is so much of the total taxable value as is reasonably attributable to the provision of the fringe benefit in respect of the employee's employment by the employer, taking account of any relevant matters.
5F(5) Shares of different employees must total 100% of taxable value.(a) the fringe benefit was provided in respect of the employment of 2 or more employees; and
(b) each of those employees has an employee's share of the taxable value of the fringe benefit;
the sum of those shares must equal the taxable value of the fringe benefit.
5F(6) Single employee's shares must equal total taxable value.If all the fringe benefits in a class described in subsection (4) are provided in respect of the employment of the same employee (and none of them is provided in respect of the employment of anyone else), the sum of the employee's shares of the taxable value of the fringe benefits must equal the total taxable value of the fringe benefits.
The provisions of this Part do not limit the generality of the expression benefit . Division 2 - Car fringe benefits Subdivision A - Car benefits SECTION 7 CAR BENEFITS 7(1)
Where: (a) at any time on a day, in respect of the employment of an employee, a car held by a person (in this subsection referred to as the provider ):
(i) is applied to a private use by the employee or an associate of the employee; or
(b) either of the following conditions is satisfied:
(ii) is taken to be available for the private use of the employee or an associate of the employee; and
(i) the provider is the employer, or an associate of the employer, of the employee;
(ii) the car is so applied or available, as the case may be, under an arrangement between:
(A) the provider or another person; and
(B) the employer, or an associate of the employer, of the employee;
that application or availability of the car shall be taken to constitute a benefit provided on that day by the provider to the employee or associate in respect of the employment of the employee.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsections 7(1), (2), (3) and (4) of the Act are modified by substituting the subsections:
]
7(1)
Where, at any time on a day, a person:
(a) applies a car held by the person; or
(b) makes a car held by the person available;for the private use of a bankrupt, the car is taken, for the purposes of this Act, to constitute a benefit provided on that day by the person to the bankrupt.
7(2)
Where, at a particular time, the following conditions are satisfied in relation to an employee of an employer: (a) a car is held by a person, being:
(i) the employer;
(ii) an associate of the employer; or
(b) the car is garaged or kept at or near a place of residence of the employee or of an associate of the employee;
(iii) a person (other than the employer or an associate of the employer) with whom, or in respect of whom, the employer or an associate of the employer has an arrangement relating to the use or availability of the car;
the car shall be taken, for the purposes of this Act, to be available at that time for the private use of the employee or associate, as the case may be.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsections 7(1), (2), (3) and (4) of the Act are modified by substituting the subsections:
]
7(1)
Where, at any time on a day, a person:
(a) applies a car held by the person; or
(b) makes a car held by the person available;for the private use of a bankrupt, the car is taken, for the purposes of this Act, to constitute a benefit provided on that day by the person to the bankrupt.
7(2A)
Subsection (2) does not apply to a car that: (a) is used by an ambulance service, a firefighting service or a police service; and (b) is visibly marked on its exterior for that use; and (c) is fitted with:
(i) a flashing warning light; and
(ii) a horn, bell or alarm that can give audible warning of the approach or position of the car by making sounds with different amplitude, tones or frequencies on a regular time cycle.
7(3)
Where, at a particular time, the following conditions are satisfied in relation to an employee of an employer: (a) a car is held by a person, being:
(i) the employer;
(ii) an associate of the employer; or
(b) the car is not at business premises of:
(iii) a person (other than the employer or an associate of the employer) with whom, or in respect of whom, the employer or an associate of the employer has an arrangement relating to the use or availability of the car;
(i) the employer;
(ii) an associate of the employer; or
(c) any of the following conditions is satisfied:
(iii) a person (other than the employer or an associate of the employer) with whom, or in respect of whom, the employer or an associate of the employer has an arrangement relating to the use or availability of the car;
(i) the employee is entitled to apply the car to a private use;
(ii) the employee is not performing the duties of his or her employment and has custody or control of the car;
(iii) an associate of the employee is entitled to use, or has custody or control of, the car;
the car shall be taken, for the purposes of this Act, to be available at that time for the private use of the employee or associate, as the case may be.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsections 7(1), (2), (3) and (4) of the Act are modified by substituting the subsections:
]
7(1)
Where, at any time on a day, a person:
(a) applies a car held by the person; or
(b) makes a car held by the person available;for the private use of a bankrupt, the car is taken, for the purposes of this Act, to constitute a benefit provided on that day by the person to the bankrupt.
7(4)
For the purposes of subsection (3), where a prohibition on the application of a car, or on the application of a car for a private use, by a person is not consistently enforced, the person shall be deemed to be entitled to use the car, or to apply the car to a private use, notwithstanding the prohibition.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsections 7(1), (2), (3) and (4) of the Act are modified by substituting the subsections:
]
7(1)
Where, at any time on a day, a person:
(a) applies a car held by the person; or
(b) makes a car held by the person available;for the private use of a bankrupt, the car is taken, for the purposes of this Act, to constitute a benefit provided on that day by the person to the bankrupt.
7(5)
For the purposes of this Act, a car shall be deemed to be applied by a person if it is applied in accordance with the directions, instructions or wishes of the person.
7(6)
For the purposes of this Division, a car that is let on hire to a person under a hire-purchase agreement shall be deemed: (a) to have been purchased by the person at the time when the person first took the car on hire; and (b) to have been owned by the person at all material times.
7(7)
A reference in this Division to a car held by a person (in this subsection referred to as the provider ) does not include a reference to: (a) a car used for taxi travel (other than a limousine) let on hire to the provider; or (b) a car let on hire to the provider under an agreement of a kind ordinarily entered into by persons taking cars on hire intermittently as occasion requires on an hourly, daily, weekly or other short-term basis unless the car has been or may reasonably be expected to be on hire under successive agreements of a kind that result in substantial continuity of the hiring of the car.
SECTION 8 EXEMPT CAR BENEFITS 8(1)
Except insofar as section 7 provides that the application or availability of a car held by a person is a benefit, the application or availability of a car held by a person is an exempt benefit.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsections 8(1) and (2) of the Act are modified by repealing the subsections.]
8(2)
A car benefit provided in a year of tax in respect of the employment of a current employee is an exempt benefit in relation to the year of tax if: (a) the car is:
(i) a panel van or utility truck, designed to carry a load of less than 1 tonne; or
(ia) used for taxi travel, designed to carry a load of less than 1 tonne, and not a limousine; or
(b) there was no private use of the car during the year of tax and at a time when the benefit was provided other than:
(ii) any other road vehicle designed to carry a load of less than 1 tonne (other than a vehicle designed for the principal purpose of carrying passengers); and
(i) work-related travel of the employee; and
(ii) other private use by the employee or an associate of the employee, being other use that was minor, infrequent and irregular.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsections 8(1) and (2) of the Act are modified by repealing the subsections.]
8(3)
Where: (a) a car benefit relating to a particular car is provided by a particular person (in this subsection called the provider ) in a year of tax in respect of the employment of a current employee of an employer; (b) at all times during the year of tax when the car was held by the provider, the car was unregistered; and (c) during the period in the year of tax when the car was held by the provider, the car was wholly or principally used directly in connection with business operations of:
(i) the employer; or
(ii) if the employer is a company - the employer or a company that is related to the employer;
the car benefit is an exempt benefit in relation to the year of tax.
8(4)
A car benefit is an exempt benefit in relation to a year of tax if: (a) the car benefit is provided in the year of tax in respect of the employment of a current employee; and (b) the person providing the benefit cannot deduct an amount under the Income Tax Assessment Act 1997 for providing the benefit because of section 86-60 of that Act.
Note:
Section 86-60 of the Income Tax Assessment Act 1997 (read together with section 86-70 of that Act) limits the extent to which personal service entities can deduct car expenses. Deductions are not allowed for more than one car for private use.
SECTION 8A EXEMPT CAR BENEFITS: CARS THAT ARE ZERO OR LOW EMISSIONS VEHICLES 8A(1)
A car benefit is an exempt benefit in relation to a year of tax if: (a) the benefit is provided in the year of tax in respect of the employment of a current employee; and (b) the car is a zero or low emissions vehicle when the benefit is provided; and (c) no amount of luxury car tax (within the meaning of the A New Tax System (Luxury Car Tax) Act 1999) has become payable on a supply (within the meaning of that Act) or importation (within the meaning of that Act) of the car before the benefit is provided.
8A(2)
A zero or low emissions vehicle is: (a) a battery electric vehicle; or (b) a hydrogen fuel cell electric vehicle; or (c) a plug-in hybrid electric vehicle.
[
CCH Note:
S 8A(2) will be amended by No 86 of 2022, s 3 and Sch 2 items 1 and 2, by substituting "vehicle." for "vehicle; or" in para (b) and repealing para (c), effective 1 April 2025. No 86 of 2022, s 3 and Sch 2 item 5 contains the following application provision:
5 Application of amendments
]
(1)
The amendments of the Fringe Benefits Tax Assessment Act 1986 made by this Schedule apply to benefits provided on or after 1 April 2025.
(2)
Despite subitem (1), the amendments do not apply to the application or availability of a car at a particular time (the
relevant time
) on or after 1 April 2025 if:
(a)
the application or availability constitutes a car benefit because of subsection 7(1) of the Fringe Benefits Tax Assessment Act 1986; and
(b)
before 1 April 2025, the employer, the employee, or an associate of the employer or of the employee, committed to the application or availability of the car, in respect of the employment of the employee by the employer, for a period that began before 1 April 2025 and includes the relevant time; and
(c)
at no time on or after 1 April 2025 and before or at the relevant time did the employer, the employee, or an associate of the employer or of the employee, commit to the application or availability of the car, in respect of the employment of the employee by the employer, for a period that includes the relevant time; and
(d)
before 1 April 2025 a car benefit relating to the car was provided; and
(e)
the car benefit referred to in paragraph (d) of this subitem was an exempt benefit in relation to a year of tax because of section 8A (Exempt car benefits: zero or low emissions vehicles) of that Act.
8A(3)
A battery electric vehicle is a motor vehicle that: (a) uses only an electric motor for propulsion; and (b) is fitted with neither a fuel cell nor an internal combustion engine.
8A(4)
A hydrogen fuel cell electric vehicle is a motor vehicle that: (a) uses an electric motor for propulsion; and (b) is equipped with a fuel cell for converting hydrogen to electricity; and (c) is not fitted with an internal combustion engine.
8A(5)
A plug-in hybrid electric vehicle is a motor vehicle that: (a) uses an electric motor for propulsion; and (b) takes and stores energy from an external source of electricity; and (c) is fitted with an internal combustion engine for either or both of the following:
(i) the generation of electrical energy;
(ii) propulsion of the vehicle.
[ CCH Note: S 8A(5) will be repealed by No 86 of 2022, s 3 and Sch 2 item 3, effective 1 April 2025. For application provision, see note under s 8A(2).]
Subject to this Part, where one or more car fringe benefits in relation to an employer in relation to a year of tax relate to a particular car held by a particular person (in this section referred to as the provider ), the taxable value of that fringe benefit, or the aggregate of the taxable values of those fringe benefits, as the case may be, in relation to that year of tax, is the amount calculated in accordance with the formula:
9(2)
For the purposes of this section: (a) the base value of the car is the sum of:
(i) where, at the earliest holding time, the car was owned by the provider or an associate of the provider, the amount calculated in accordance with the formula AB,
where:
A is the cost price of the car to the provider or associate, as the case may be; and B is:
(A) in a case where the commencement of the year of tax is later than the fourth anniversary of the earliest holding time - ⅔; or
(B) in any other case - 1; and
(ii) in a case to which subparagraph (i) does not apply - the amount calculated in accordance with the formula AB,
where:
A is the leased car value of the car at the earliest holding time; and B is:
(A) in a case where the commencement of the year of tax is later than the fourth anniversary of the earliest holding time - ⅔; or
(B) in any other case - 1; and
(b) the earliest holding time, in relation to a car held by the provider at a particular time (in this paragraph referred to as the current time ), is the earliest time before the current time when the car was held by the provider or an associate of the provider; and
(iii) the cost price of each non-business accessory that:
(A) was fitted to the car after the earliest holding time and before the end of the year of tax; and
(B) remained fitted to the car at a time during the year of tax when the car was held by the provider;
(c) (Repealed by No 62 of 2011)
(d) (Repealed by No 62 of 2011) (e) the amount of the recipient's payment is the sum of:
(i) in a case where expenses were incurred to the provider or employer during the holding period by recipients of the car fringe benefits by way of consideration for the provision of the car fringe benefits - the amount of those expenses paid by the recipients less any amount paid or payable to the recipients by way of reimbursement of those expenses; and
(ia) in a case where car expenses in respect of fuel or oil for the car were incurred during the holding period by recipients of the car fringe benefits and:
(A) the persons incurring those expenses give to the employer, before the declaration date, declarations, in a form approved by the Commissioner, in respect of those expenses; orthe amount of those expenses paid by the recipients less any amount paid or payable to the recipients by way of reimbursement of those expenses; and
(B) documentary evidence of those expenses is obtained by the persons incurring the expenses and given to the employer before the declaration date;
(f) the holding period is the period in the year of tax when the car was held by the provider.
(ii) in a case where:
(A) car expenses in respect of the car (other than car expenses in respect of fuel or oil for the car) were incurred during the holding period by recipients of the car fringe benefits; andthe amount of those expenses paid by the recipients less any amount paid or payable to the recipients by way of reimbursement of those expenses; and
(B) documentary evidence of those expenses is obtained by the persons incurring the expenses and given to the employer before the declaration date;
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Section 9 of the Act is modified by substituting the section:
Christopher was declared bankrupt on 1 July 2020. In June 2021 Christopher's employer acquires a car for Christopher's use. The purchase price, and base value, of the car is $20,000. As part of his employment arrangement, the car is made available to Christopher for the entire period 1 July 2021 to 30 June 2022 during which time he travels 10,000 kilometres. During the period Christopher makes a $300 contribution to expenses in the form of unreimbursed expenditure on petrol. It is necessary to assess the value of a car fringe benefit provided to Christopher by his employer for the contribution assessment period 1 July 2021 to 30 June 2022. Applying the formula in subsection (1), the value of the car fringe benefit is calculated as follows:
SECTION 9 TAXABLE VALUE OF CAR FRINGE BENEFITS-STATUTORY FORMULA
9(1)
Subject to this Part, where one or more car fringe benefits in relation to an employer in relation to a contribution assessment period relate to a particular car held by a particular person (the
provider
), the taxable value of that fringe benefit, or the aggregate of the taxable values of those fringe benefits, as the case may be, in relation to that contribution assessment period, is the amount calculated in accordance with the formula:
9(2)
For the purposes of this section:
(a)
the
base value
of the car is the sum of:
(i)
where, at the earliest holding time, the car was owned by the provider or an associate of the provider, the amount calculated in accordance with the formula AB, where:
(A)
in a case where the commencement of the contribution assessment period is later than the fourth anniversary of the earliest holding time - ⅔; or
(B)
in any other case - 1; and
(ii)
in a case to which subparagraph (i) does not apply - the amount calculated in accordance with the formula AB, where:
(A)
in a case where the commencement of the contribution assessment period is later than the fourth anniversary of the earliest holding time - ⅔; or
(B)
in any other case - 1; and
(iii)
the cost price of each non-business accessory that:
(A)
was fitted to the car after the earliest holding time and before the end of the contribution assessment period; and
(B)
remained fitted to the car at a time during the contribution assessment period when the car was held by the provider;
(b)
the earliest holding time, in relation to a car held by the provider at a particular time (the
current time
), is the earliest time before the current time when the car was held by the provider or an associate of the provider; and
(c)
the amount of the recipient's payment is the sum of:
(i)
in a case where expenses were incurred to the provider or employer during the holding period by recipients of the car fringe benefits by way of consideration for the provision of the car fringe benefits - the amount of those expenses paid by the recipients less any amount paid or payable to the recipients by way of reimbursement of those expenses; and
(ii)
in a case where car expenses in respect of fuel or oil for the car were incurred during the holding period by recipients of the car fringe benefits and the persons incurring those expenses give to the employer, before the declaration date, declarations, in a form approved by the Inspector-General under section 6D of the Bankruptcy Act 1966, in respect of those expenses - the amount of those expenses paid by the recipients less any amount paid or payable to the recipients by way of reimbursement of those expenses; and
(iii)
in a case where:
(A)
car expenses in respect of the car (other than car expenses in respect of fuel or oil for the car) were incurred during the holding period by recipients of the car fringe benefits; and
the amount of those expenses paid by the recipients less any amount paid or payable to the recipients by way of reimbursement of those expenses; and
(B)
documentary evidence of those expenses is obtained by the persons incurring the expenses and given to the employer before the declaration date;
(d)
the holding period is the period in the contribution assessment period when the car was held by the provider.
Example:
9(3)
In this section:
declaration date
means the date occurring 21 days after the end of a contribution assessment period in relation to a bankrupt.
taxable value of a fringe benefit
means the value, for the purposes of the Bankruptcy Act 1966, of the benefit.
]
An employer may, in relation to a particular car, elect that this section apply in relation to all the car fringe benefits in relation to the employer in relation to a year of tax that relate to that car.
10(2)
Subject to this Part, where an election is made under subsection (1), the taxable value, or the aggregate of the taxable values, as the case requires, of the car fringe benefits in relation to the employer in relation to the year of tax that relate to the car while it was held by a particular person (in this section referred to as the provider ) during a particular period (in this section referred to as the holding period ) in the year of tax is the amount calculated in accordance with the formula:
(C × (100% − BP)) − R
where:
C is the operating cost of the car during the holding period;
BP is:
R is the amount (if any) of the recipient's payment.
10(3)
For the purposes of subsection (2): (a) the operating cost of the car during the holding period is the sum of:
(i) any car expenses (other than insured repair expenses or expenses in respect of registration and insurance) relating to the car incurred during the holding period (whether the expenses are incurred by the provider or by any other person), not including, in a case where the car is leased to the provider, any car expenses incurred by the lessor pursuant to the lease agreement; and
(ii) so much of any expense paid or payable in respect of the registration of, or insurance in respect of, the car as is attributable to the holding period (whether the expenses are incurred by the provider or by any other person), not including:
(A) in a case where the car is owned by the provider - any expense incurred before the provider became the owner of the car; or
(B) in a case where the car is leased to the provider - any expense incurred by the lessor pursuant to the lease agreement; and
(iii) in a case where the car is owned by the provider:
(A) the amount of depreciation that is deemed to have been incurred by the provider in respect of the car in respect of the holding period; and
(B) the amount of interest that is deemed to have been incurred by the provider in respect of the car in respect of the holding period; and
(iv) in a case where the car is owned by the provider and a non-business accessory was fitted to the car during the period when the car was owned by the provider and remained fitted to the car at a time during the holding period:
(A) the amount of depreciation that would be deemed to have been incurred by the provider in respect of the accessory in respect of the holding period if the accessory were a car; and
(B) the amount of interest that would be deemed to have been incurred by the provider in respect of the accessory in respect of the holding period if the accessory were a car; and
(v) in a case where the car is leased to the provider:
(A) where sub-subparagraph (B) does not apply - so much of the charges paid or payable under the lease agreement as are attributable to the holding period; or
(B) where the lessor was entitled to privileges or exemptions in relation to customs duty in respect of a transaction by which the lessor purchased the car - the amount that could reasonably be expected to have been applicable under sub-subparagraph (A) if the lessor had not been entitled to those privileges or exemptions; and
(vi) in a case where the car is neither owned by, nor leased to, the provider - the amount of depreciation and interest that would be deemed to have been incurred by the provider in respect of the car in respect of the holding period if the car had been purchased by the provider at the time when the provider commenced to hold the car for a consideration equal to the leased car value of the car at that time; and
(b) (Omitted by No 139 of 1987) (c) the amount of the recipient's payment is the sum of:
(i) in a case where expenses were incurred to the provider or employer during the holding period by recipients of the car fringe benefits by way of consideration for the provision of the car fringe benefits - the amount of those expenses paid by the recipients less any amount paid or payable to the recipients by way of reimbursement of those expenses; and
(ia) in a case where car expenses in respect of fuel or oil for the car were incurred during the holding period by recipients of the car fringe benefits and:
(A) the persons incurring those expenses give to the employer, before the declaration date, declarations, in a form approved by the Commissioner, in respect of those expenses; orthe amount of those expenses paid by the recipients less any amount paid or payable to the recipients by way of reimbursement of those expenses; and
(B) documentary evidence of those expenses is obtained by the persons incurring the expenses and given to the employer before the declaration date;
(ii) in a case where:
(A) car expenses in respect of the car (other than car expenses in respect of fuel or oil for the car) were incurred during the holding period by recipients of the car fringe benefits; andthe amount of those expenses paid by the recipients less any amount paid or payable to the recipients by way of reimbursement of those expenses.
(B) documentary evidence of those expenses is obtained by the persons incurring the expenses and given to the employer before the declaration date;
10(3A)
A reference in subparagraph (3)(a)(i) to an insured repair expense relating to a car is a reference to: (a) so much of an expense incurred in respect of repairs to the car as does not exceed an amount:
(i) received by way of insurance in respect of the repairs by the person incurring the expense;
(ii) paid by way of insurance in respect of the repairs in discharge of the obligation of the insured to pay the expense;
(iii) received by way of compensation in respect of the repairs by the person incurring the expense from the person legally responsible for the damage to the car; or
(b) an expense incurred in respect of repairs to the car:
(iv) paid by way of compensation in respect of the repairs by the person legally responsible for the damage to the car in discharge of the obligation of the person incurring the expense to pay the expense; or
(i) by an insurer under a contract of insurance; or
(ii) by way of compensation by the person legally responsible for the damage to the car.
10(3B)
Where, in accordance with subsection 162K(2), the identity of a car changes one or more times during the period (in this subsection called the overall holding period ) that, apart from that subsection, would be the holding period, the operating cost of the car during each period (in this subsection called a statutory holding period ) that is a holding period in relation to the car when the car had a separate identity is so much of the amount that would have been the operating cost of the car during the overall holding period (assuming that the identity of the car had not changed during the overall holding period) as is attributable to the statutory holding period.
10(3C)
Where, in accordance with subsection 162K(2), the identity of a car changes one or more times during the period (in this subsection called the overall holding period ) that, apart from that subsection, would be the holding period, the recipient's payment in relation to each period (in this subsection called a statutory holding period ) that is a holding period in relation to the car when the car had a separate identity is so much of the amount that would have been the recipient's payment in relation to the overall holding period (assuming that the identity of the car had not changed during the overall holding period) as is attributable to the statutory holding period.
10(3D)
In determining, for the purposes of this section, whether: (a) an expense is paid or payable in respect of the registration of, or insurance in respect of, a car; or (b) a charge is paid or payable under a lease agreement in respect of a car; or (c) a lessor of a car is entitled to privileges or exemptions in relation to customs duty in respect of a transaction by which the lessor purchased the car;
a change, in accordance with subsection 162K(2), to the identity of the car shall be disregarded.
10(4)
An election by an employer under subsection (1) in relation to a year of tax: (a) shall be made by notice in writing to the Commissioner; and (b) shall be lodged with the Commissioner on or before the declaration date.
10(5)
Where: (a) an employer elects that this section apply in relation to all the car fringe benefits in relation to the employer in relation to a year of tax that relate to a particular car; and (b) the taxable value, or the aggregate of the taxable values, as the case requires, of the car fringe benefits that relate to the car ascertained under subsection (2) of this section exceeds the taxable value, or the aggregate of the taxable values, as the case requires, that would have been ascertained under section 9 if that election had not been made;
this Act (other than section 162G) applies, and shall be deemed always to have applied, for the purposes of ascertaining that taxable value, or the aggregate of those taxable values, as the case requires, as if that election had not been made.
10(6)
Nothing in section 74 prevents the amendment of an assessment for the purpose of giving effect to subsection (5).
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Sections 10 to 12 of the Act are modified by repealing the sections.]
Where one or more car fringe benefits in relation to an employer in relation to a year of tax relate to a car while it was held by a particular person (in this section called the provider ) during a particular period (in this section called the holding period ) in a year of tax that is a log book year of tax of the employer in relation to the car, the employer is entitled to a reduction in the operating cost of the car on account of business journeys undertaken in the car during the holding period if, and only if: (a) log book records and odometer records are maintained by or on behalf of the provider for an applicable log book period in relation to the car; and (b) odometer records are maintained by or on behalf of the provider for the holding period; and (c) if the provider is not the employer - those log book records and odometer records are given to the employer before the declaration date; and (d) the employer specifies the employer's estimate of the number of business kilometres travelled by the car during the holding period; and (e) the employer specifies a percentage as the business use percentage applicable to the car in relation to the provider for the holding period.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Sections 10 to 12 of the Act are modified by repealing the sections.]
Where one or more car fringe benefits in relation to an employer in relation to a year of tax relate to a car while it was held by a particular person (in this section called the "provider" ) during a particular period (in this section called the "holding period" ) in a year of tax that is not a log book year of tax of the employer in relation to the car, the employer is entitled to a reduction in the operating cost of the car on account of business journeys undertaken during the holding period in the car if, and only if: (a) odometer records are maintained by or on behalf of the provider in relation to the car for the holding period and, if the provider is not the employer, are given to the employer before the declaration date; and (b) the employer specifies the employer's estimate of the number of business kilometres travelled by the car in the holding period; and (c) the employer specifies the business use percentage applicable to the car in relation to the provider for the holding period.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Sections 10 to 12 of the Act are modified by repealing the sections.]
(Repealed by No 145 of 1995)
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Sections 10 to 12 of the Act are modified by repealing the sections.]
For the purposes of this Subdivision, the amount of depreciation that is deemed to have been incurred by a person in respect of a car in respect of the period (in this subsection called the holding period ) during a year of tax while the car was held by the person is the amount calculated in accordance with the formula:
| DEP | × |
DHP
DCO |
where:
DEP is the amount of depreciation that is deemed to have been incurred by the person in respect of the car in respect of the year of tax;
DHP is the number of days in the holding period during which the car was owned by the person; and
DCO is the number of days in the period in the year of tax during which the car was owned by the person.
11(1)
For the purposes of this Subdivision, the amount of depreciation that is deemed to have been incurred by a person in respect of a car in respect of a year of tax is the amount calculated in accordance with the formula:
|
ABC
D |
where:
A is:
B is the amount worked out for the person and the car using the formula in subsection (1AA).
C is the number of days in the period in the year of tax during which the car was owned by the person; and
D is the number of days in the year of tax.
11(1AA)
The formula for working out the amount of B for the person and the car for subsection (1) is:
| DV percentage | ||
| Effective life of the car |
DV percentage
is the percentage applicable in using the diminishing value method (within the meaning of the Income Tax Assessment Act 1997) as at the start of the year of tax.
effective life of the car
is the number of years in the period specified as the effective life of the car in a determination made by the Commissioner under section 40-100 of the Income Tax Assessment Act 1997 and in effect at the most recent time (before the end of the year of tax) the person became the owner of the car.
11(1B)
For the purposes of this Subdivision, the amount of interest that is deemed to have been incurred by a person in respect of a car in respect of the period (in this subsection called the holding period ) during a year of tax while the car was held by the person is the amount calculated in accordance with the formula:
| INT | × |
DHP
DCO |
where:
INT is the amount of interest that is deemed to have been incurred by the person in respect of the car in respect of the year of tax;
DHP is the number of days in the holding period during which the car was owned by the person; and
DCO is the number of days in the period in the year of tax during which the car was owned by the person.
11(2)
For the purposes of this Subdivision, the amount of interest that is deemed to have been incurred by a person in respect of a car in respect of a year of tax is the amount calculated in accordance with the formula:
|
ABC
D |
where:
A is:
B is the statutory interest rate in relation to the year of tax;
C is the number of days in the period in the year of tax during which the car was owned by the person; and
D is the number of days in the year of tax.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Sections 10 to 12 of the Act are modified by repealing the sections.]
In this Subdivision, the depreciated value of a car at a particular time (the relevant time ) is the amount worked out using the formula:
| A − B |
where:
A is:
B is the total amount of depreciation (if any) that would have been taken to have been incurred by the person in respect of the car for the period after the start of 1 July 1986 and before the relevant time when the person owned the car, if the depreciation taken to have been incurred for that period were calculated in accordance with subsection 11(1).
12(2)
The depreciated value of a car owned by a person at the start of 1 July 1986 is the cost price of the car to that person, reduced by the total amount of depreciation that would have been taken to have been incurred by the person in respect of the car for the period before that time when it was owned by the person if: (a) the depreciation taken to have been incurred for that period were calculated in accordance with subsection 11(1); and (b) each year starting on 1 July were a year of tax.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Sections 10 to 12 of the Act are modified by repealing the sections.]
The following provisions apply for the purpose of determining the base value of a car for the purposes of section 9 or the operating cost of a car for the purposes of section 10.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsection 13(1) of the Act is modified by omitting all the words after "section 9".]
13(2)
Where the amount (if any) of expenditure incurred by a person under a transaction that is not an arm's length transaction is less than the amount (in this subsection referred to as the "increased amount" ) of expenditure that could reasonably have been expected to have been incurred by the person under the transaction if it had been an arm's length transaction, the person shall be deemed, under the transaction, to have incurred the increased amount of expenditure.
13(3)
The reference in subsection (2) to expenditure does not include a reference to expenditure by a recipient of a car benefit in relation to the car by way of reimbursement of expenditure incurred by another person.
13(4)
Where, in a case to which subsection (2) does not apply: (a) a person acquires any property, or is provided with any benefit; and (b) the person incurs no expenditure in respect of the acquisition of that property or the provision of that benefit;
the person shall be deemed to have incurred, in respect of the acquisition of that property or the provision of that benefit, expenditure equal to the amount that the person could reasonably be expected to have been required to pay to purchase that property, or obtain the provision of that benefit, on the open market.
Division 3 - Debt waiver fringe benefits Subdivision A - Debt waiver benefits SECTION 14 14 DEBT WAIVER BENEFITS
Where, at a particular time, a person (in this section referred to as the provider ) waives the obligation of another person (in this section referred to as the recipient ) to pay or repay to the provider an amount, the waiver shall be taken to constitute a benefit provided at that time by the provider to the recipient. Subdivision B - Taxable value of debt waiver fringe benefits SECTION 15 15 TAXABLE VALUE OF DEBT WAIVER FRINGE BENEFITS
Subject to this Part, the taxable value in relation to a year of tax of a debt waiver fringe benefit provided in the year of tax is the amount the payment or repayment of which is waived.
Where a person (in this subsection referred to as the
provider
) makes a loan to another person (in this subsection referred to as the
recipient
), the making of the loan shall be taken to constitute a benefit provided by the provider to the recipient and that benefit shall be taken to be provided in respect of each year of tax during the whole or a part of which the recipient is under an obligation to repay the whole or any part of the loan.
Note:
A loan benefit that is taken under this subsection to be provided in respect of a year of tax may not be provided as a fringe benefit if:
See paragraph (s) of the definition of fringe benefit in subsection 136(1) of this Act.
For the purposes of this Act, where:
(a) a person (in this subsection referred to as the debtor ) is under an obligation to pay or repay an amount (in this subsection referred to as the principal amount ) to another person (in this subsection referred to as the creditor );
(b) the principal amount is not the whole or a part of the amount of a loan; and
(c) after the due date for payment or repayment of the principal amount, the whole or part of the principal amount remains unpaid;
the following provisions have effect:
(d) the creditor shall be deemed, immediately after the due date, to have made a loan (in this subsection referred to as the deemed loan ) of the principal amount to the debtor;
(e) at any time when the debtor is under an obligation to repay any part of the principal amount, the debtor shall be deemed to be under an obligation to repay that part of the deemed loan;
(f) the deemed loan shall be deemed to have been made:
(i) if interest accrues on so much of the principal amount as remains from time to time unpaid - at the rate of interest at which that interest accrues; or
16(3) [Deferred interest loan]
(ii) in any other case - at a nil rate of interest.
For the purposes of this Act, where a person (in this subsection referred to as the provider ) makes a deferred interest loan (in this subsection referred to as the principal loan ) to another person (in this subsection referred to as the recipient ):
(a) the provider shall be deemed, at the end of:
(i) the period of 6 months commencing on the day on which the principal loan was made; and
(being in either case a period ending on or after 1 July 1986 during the whole of which the recipient is under an obligation to repay the whole or any part of the principal loan) to have made a loan (in this subsection referred to as the deemed loan ) to the recipient of an amount equal to the amount by which the interest (in this subsection referred to as the accrued interest ) that has accrued on the principal loan in respect of that period exceeds the amount (if any) paid in respect of the accrued interest before the end of that period;
(ii) each subsequent period of 6 months;
(b) where any part of the accrued interest becomes payable or is paid after the time when the deemed loan is deemed to have been made, the deemed loan shall be reduced accordingly; and
(c) the deemed loan shall be deemed to have been made at a nil rate of interest. 16(4) [Definition of "deferred interest loan"]
In subsection (3), deferred interest loan means a loan in respect of which interest is payable at a rate exceeding nil, other than:
(a) a loan where the whole of the interest is due for payment within 6 months after the loan is made; or
(b) a loan where:
(i) the interest is payable by instalments;
(ii) the intervals between instalments do not exceed 6 months; and
16(5) [No interest payable on loan]
(iii) the first instalment is due for payment within 6 months after the loan is made.
For the purposes of this Act, where no interest is payable in respect of a loan, a nil rate of interest shall be taken to be payable in respect of the loan.
SECTION 17 EXEMPT LOAN BENEFITS 17(1) [Loan as part of business and fixed arm's length interest rate](a) a loan is made by a person who carries on a business that consists of or includes making loans to members of the public; and
(b) the rate of interest payable in respect of the loan:
(i) is specified in a document in existence at the time the loan is made;
(ii) is not less than the rate of interest in respect of a similar arm's length loan made by the person, at or about that time, to a member of the public in the ordinary course of carrying on that business; and
(iii) cannot be varied;
the making of the loan is an exempt benefit.
17(2) [Loan as part of business and variable arm's length interest rate](a) a loan is made by a person who carries on a business that consists of or includes making loans to members of the public; and
(b) the rate of interest from time to time payable in respect of the loan in respect of a year of tax is not less than the rate of interest applicable at the time concerned in respect of a similar arm's length loan made by the person, at or about the time the loan referred to in paragraph (a) is made, to a member of the public in the ordinary course of carrying on that business;
the making of the loan is an exempt benefit in relation to that year of tax.
17(3) [Advance to current employee to meet employment-related expenses](a) a loan consists of an advance by an employer to a current employee of the employer in respect of his or her employment;
(b) the sole purpose of the making of the loan is to enable the employee to meet expenses incurred by the employee:
(i) in the course of performing the duties of that employment; and
(ii) not later than 6 months after the loan is made;
(c) the amount of the loan does not substantially exceed the amount of those expenses that could reasonably be expected to be incurred by the employee; and
(d) the employee is required:
(i) to account to the employer, not later than 6 months after the loan is made, for expenses met from the loan; and
(ii) to repay (whether by set-off or otherwise) any amount not so accounted for;
the making of the loan is an exempt benefit.
(a) the making of a loan consisting of an advance by an employer to an employee of the employer constitutes a benefit in respect of the employment of the employee in respect of a year of tax (in this subsection called the current year of tax );
(b) the sole purpose of the making of the loan is to enable the employee to pay any of the following amounts payable by the employee in respect of accommodation:
(i) a rental bond;
(ii) a security deposit in respect of electricity, gas or telephone services;
(iii) any similar amount;
(c) the employee is required to repay (whether by set-off or otherwise) the loan not later than 12 months after the loan is made;
(d) any of the following benefits is provided in, or in respect of, any year of tax to the employee in respect of that employment:
(i) an expense payment benefit where the recipients expenditure is in respect of a lease or licence in respect of that accommodation;
(ii) a housing benefit where the housing right is in respect of that accommodation;
(iii) a residual benefit where the recipients benefit is constituted by the subsistence of a lease or licence in respect of that accommodation; and
(e) either of the following subparagraphs apply:
(i) by virtue of section 21 or subsection 47(5), the benefit referred to in paragraph (d) is an exempt benefit in relation to the year of tax referred to in that paragraph;
(ii) the benefit referred to in paragraph (d) is a fringe benefit in relation to the year of tax referred to in that paragraph and, under section 61C, the taxable value of the fringe benefit is reduced by the extent to which that taxable value is attributable to the subsistence of a lease or licence in respect of the accommodation during a particular period in that year of tax;
the making of the loan is an exempt benefit in relation to the current year of tax.
Subject to this Part, the taxable value, in relation to a year of tax, of a loan fringe benefit provided in respect of the year of tax is the amount (if any) by which the notional amount of interest in relation to the loan in respect of the year of tax exceeds the amount of interest that has accrued on the loan in respect of the year of tax.
Where: (a) the recipient of a loan fringe benefit in relation to an employer in relation to a year of taxis an employee of the employer; and (b) if the recipient had, on the last day of the period (in this subsection called the loan period ) during the year of tax when the recipient was under an obligation to repay the whole or any part of the loan, incurred and paid unreimbursed interest (in this subsection called the gross interest ), in respect of the loan, in respect of the loan period, equal to the notional amount of interest in relation to the loan in relation to the year of tax - a once-only deduction (in this subsection called the gross deduction ) would, or would if not for Divisions 28 and 900 of the Income Tax Assessment Act 1997, have been allowable to the recipient under that Act or the Income Tax Assessment Act 1936 in respect of the gross interest; and (ba) the amount (in this subsection called the notional deduction ) calculated in accordance with the formula:
| GD − RD |
where:
GD is the gross deduction; and
RD is:
(i) if no interest accrued on the loan in respect of the loan period - nil; or
exceeds nil; and (c) except where the fringe benefit is:
(ii) if interest accrued on the loan in respect of the loan period - the amount (if any) that would, or that would but for Divisions 28 and 900 of the Income Tax Assessment Act 1997, have been allowable as a once-only deduction to the recipient under that Act or the Income Tax Assessment Act 1936 in respect of that interest if that interest had been incurred and paid by the recipient on the last day of the loan period;
(i) an employee credit loan benefit in relation to the year of tax; or
the recipient gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, in respect of the loan concerned; and (ca) where:
(ii) an employee share loan benefit in relation to the year of tax;
(i) (Repealed by No 178 of 1999)
(ii) the loan fringe benefit is a car loan benefit in respect of a car held by the recipient during a period (in this subsection also called the holding period ) in the year of tax; and
the following conditions are satisfied:
(iii) the substantiation rules set out in Division 15 have been complied with in relation to the car in relation to the holding period;
(iv) the recipient gives to the employer, before the declaration date, a car substantiation declaration for the car for the year of tax;
(d) if:
(v) in a case where the substantiation rules require log book records or odometer records to be maintained by or on behalf of the recipient in relation to the car - the car substantiation declaration is accompanied by a copy of those documents; and
(i) paragraph (ca) does not apply; and
the recipient gives a declaration to the employer, before the declaration date and in a form approved by the Commissioner, that purports to set out:
(ii) the loan fringe benefit is a car loan benefit in respect of a car held by the recipient during a period (the holding period ) in the year of tax;
(iii) the holding period; and
(iv) the number of whole business kilometres travelled by the car during the holding period; and
(v) the number of whole kilometres travelled by the car during the holding period;
the taxable value, but for Division 14, of the loan fringe benefit in relation to the year of tax is the amount calculated in accordance with the formula:
| TV − ND |
where:
TV is the amount that, but for this subsection and Division 14, would be the taxable value of the loan fringe benefit in relation to the year of tax; and
ND is:
(e) if neither paragraph (ca) nor (d) applies and paragraph (i) does not apply - the notional deduction; or (f) if paragraph (ca) applies and paragraph (i) does not apply - whichever of the following amounts is applicable:
(i) if it would be concluded that the amount of interest that has accrued on the loan in respect of the loan period would have been the same even if the loan fringe benefit were not applied or used in producing assessable income of the recipient - the business use percentage of the amount that, but for this subsection and Division 14, would be the taxable value of the loan fringe benefit in relation to the year of tax;
(g) where:
(ii) if subparagraph (i) does not apply - the business use percentage of the notional amount of interest in relation to the loan in relation to the year of tax; or
(i) paragraph (d) applies; and
(ii) (Repealed by No 162 of 2015)
whichever of the following amounts is the least:
(iia) paragraph (i) does not apply;
(iii) the notional deduction;
(iv) if it would be concluded that the amount of interest that has accrued on the loan in respect of the loan period would have been the same even if the loan fringe benefit were not applied or used in producing assessable income of the recipient - 33⅓% of the amount that, but for this subsection and Division 14, would be the taxable value of the loan fringe benefit in relation to the year of tax;
(v) if subparagraph (iv) does not apply - 33⅓% of the notional amount of interest in relation to the loan in relation to the year of tax; or
(h) (Repealed by No 162 of 2015) (i) if, under subsection 138(3), the loan fringe benefit is deemed to have been provided to the recipient only - the amount calculated in accordance with subsection (5).
19(2)
Where a part of a loan to which a loan fringe benefit relates is used by an employee to: (a) purchase a particular car; or (b) pay a Division 28 car expense;
subsection (1) and the definition of car loan benefit in subsection 136(1) apply as if that part of the loan had been a separate loan.
19(3)
(Repealed by No 162 of 2015)
19(4)
(Repealed by No 162 of 2015)
19(5)
For the purposes of paragraph (1)(i) (which applies to a loan fringe benefit that, under subsection 138(3), is deemed to have been provided to an employee only), the amount is calculated in accordance with the formula:
| Unadjusted ND × Employee's percentage of interest |
employee's percentage of interest
:
unadjusted ND
is the amount that would be ascertained as representing the component ND in the formula in subsection (1) if paragraph (1)(i) did not apply in relation to the loan fringe benefit.
Division 5 - Expense payment fringe benefits Subdivision A - Expense payment benefits SECTION 20 20 EXPENSE PAYMENT BENEFITS
Where a person (in this section referred to as the provider ):
(a) makes a payment in discharge, in whole or in part, of an obligation of another person (in this section referred to as the recipient ) to pay an amount to a third person in respect of expenditure incurred by the recipient; or
(b) reimburses another person (in this section also referred to as the recipient ), in whole or in part, in respect of an amount of expenditure incurred by the recipient;
the making of the payment referred to in paragraph (a), or the reimbursement referred to in paragraph (b), shall be taken to constitute the provision of a benefit by the provider to the recipient.
SECTION 20A EXEMPTION - NO-PRIVATE-USE DECLARATION 20A(1) [Exempt benefit]An expense payment fringe benefit that is covered by a no-private-use declaration is an exempt benefit.
20A(2) [No-private-use declaration]An employer may make a no-private-use declaration that covers all the employer's expense payment fringe benefits for an FBT year for which the employer will only pay or reimburse so much of the expense that is the subject of the benefit as would result in the taxable value of the benefit being nil.
20A(3) [Form of declaration]The declaration must be in a form approved in writing by the Commissioner and be made by the declaration date.
Where:
(a) an expense payment benefit is provided in a year of tax to a current employee of an employer in respect of his or her employment; and
(b) the recipients expenditure is in respect of accommodation for eligible family members; and
(ba) the accommodation is not provided while the employee is undertaking travel in the course of performing the duties of that employment; and
(c) the accommodation is required solely because the duties of that employment require the employee to live away from his or her normal residence; and
(d) the employee satisfies:
(i) sections 31C (about maintaining an Australian home) and 31D (about the first 12 months); or
(ii) section 31E (about fly-in fly-out and drive-in drive-out requirements); and
(e) the employee gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, purporting to set out:
(i) if the employee satisfies sections 31C and 31D - the matters in subparagraphs 31F(1)(a)(i) to (iii); or
(ii) if the employee satisfies section 31E - the matters in subparagraphs 31F(1)(b)(i) to (iii);
the benefit is an exempt benefit in relation to the year of tax.
Where:
(a) an expense payment benefit provided to an employee of an employer in respect of his or her employment is constituted by the reimbursement of the employee, in whole or in part, in respect of an amount of a Division 28 car expense incurred by the employee in relation to a car owned by, or leased to, the employee;
(b) in a case where the car is leased to the employee - the recipients expenditure is not attributable to a period when the lessor is the provider of a car benefit in relation to the car in relation to the employee;
(c) the benefit is not in respect of relocation transport;
(ca) the benefit is not in respect of an employment interview or selection test;
(cb) the benefit is not associated with:
(i) a work-related medical examination of the employee;
(ii) work-related medical screening of the employee;
(iii) work-related preventative health care of the employee;
(iv) work-related counselling of the employee or of an associate of the employee; or
(v) migrant language training of the employee or of an associate of the employee;
(cc) neither of the following subparagraphs applies in relation to the transport to which the benefit relates:
(i) the transport was provided wholly or partly to enable the employee, or an associate of the employee, to have a holiday;
(ii) the transport was provided at a time when the employee had ceased to perform the duties of that employment; and
(d) the reimbursement is calculated by reference to the distance travelled by the car;
the expense payment benefit is an exempt benefit.
Subject to this Part, the taxable value in relation to a year of tax of an in-house property expense payment fringe benefit (in this subsection called the actual fringe benefit ) provided during the year of tax is the amount that, if: (a) the provision of property to which the actual fringe benefit relates were an in-house property fringe benefit (in this subsection called the notional fringe benefit ); and (b) the recipients contribution in relation to the notional fringe benefit were equal to the recipients expenditure reduced by whichever of the following amounts is applicable:
(i) the amount of the payment referred to in paragraph 20(a) reduced by the amount of the recipients contribution in relation to the actual fringe benefit;
(ii) the amount of the reimbursement referred to in paragraph 20(b);
would have been calculated under section 42 as the taxable value, but for section 44 and Division 14, of the notional fringe benefit in relation to the year of tax.
22A(2)
Subject to this Part, the taxable value in relation to a year of tax of an in-house residual expense payment fringe benefit (in this subsection called the actual fringe benefit ) provided during the year of tax is the amount that, if: (a) the provision of the residual benefit to which the actual fringe benefit relates were an in-house residual fringe benefit (in this subsection called the notional fringe benefit ); and (b) the recipients contribution in relation to the notional fringe benefit were equal to the recipients expenditure reduced by whichever of the following amounts is applicable:
(i) the amount of the payment referred to in paragraph 20(a) reduced by the amount of the recipients contribution in relation to the actual fringe benefit;
(ii) the amount of the reimbursement referred to in paragraph 20(b);
would have been calculated under whichever of sections 48 and 49 is applicable as the taxable value, but for section 52 and Division 14, of the notional fringe benefit in relation to the year of tax.
22A(3)
For the purposes of subsection (2), section 49 has effect as if: (a) "the current identical benefit in relation to" were omitted from paragraph 49(a); (b) the reference in paragraph 49(b) to the recipients current benefit were a reference to the recipients overall benefit; and (c) "insofar as it relates to the recipients current benefit" were omitted from section 49.
22A(4)
Where the recipients expenditure in relation to each of 2 or more in-house expense payment fringe benefits (whether or not in relation to the same year of tax) is the same expenditure, this Act applies, and shall be deemed to have applied, as if all the payments or reimbursements to which those fringe benefits relate had been made at the time when the first of those payments or reimbursements was made and not otherwise.
22A(5)
Nothing in section 74 prevents the amendment of an assessment for the purpose of giving effect to subsection (4).
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Section 22A of the Act is modified by repealing the section.]
Subject to this Part, the taxable value in relation to a year of tax of an external expense payment fringe benefit provided during the year of tax is the amount of the payment referred to in paragraph 20(a), or the reimbursement referred to in paragraph 20(b), as the case requires, reduced, in a case to which paragraph 20(a) applies, by the amount of the recipients contribution.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Section 23 of the Act is modified by omitting "external".]
Where: (a) the recipient of an expense payment fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer; and (b) if the recipient had, at the time when the recipients expenditure was incurred, incurred and paid unreimbursed expenditure (in this subsection called the gross expenditure ), in respect of the same matter in respect of which the recipients expenditure was incurred, equal to:
(i) in the case of an in-house expense payment fringe benefit - the amount that, but for this subsection and Division 14 and the recipients contribution, would be the taxable value of the expense payment fringe benefit in relation to the year of tax; or
a once-only deduction (in this subsection called the gross deduction ) would, or would if not for Divisions 28 and 900 of the Income Tax Assessment Act 1997, have been allowable to the recipient under that Act or the Income Tax Assessment Act 1936 in respect of the gross expenditure; and (ba) the amount (in this subsection called the notional deduction ) calculated in accordance with the formula:
(ii) in the case of an external expense payment fringe benefit - the amount of the recipients expenditure;
| GD − RD |
where:
GD is the gross deduction; and
RD is:
(i) if there is no recipients portion in relation to the expense payment fringe benefit - nil; or
exceeds nil; and (c) in the case of an expense payment fringe benefit that is not an eligible incidental travel expense payment benefit or an eligible overtime meal expense payment benefit:
(ii) if there is a recipients portion in relation to the expense payment fringe benefit - the amount (if any) that would, or that would but for Divisions 28 and 900 of the Income Tax Assessment Act 1997, have been allowable as a once-only deduction to the recipient under that Act or the Income Tax Assessment Act 1936 in respect of the recipients expenditure (assuming that any payment of that expenditure by the recipient had been paid by the recipient at the time when the recipients expenditure was incurred);
(ia) where the recipients expenditure is in respect of fuel or oil for a motor vehicle owned by, or leased to, the recipient:
(A) where the fringe benefit is an eligible small expense payment fringe benefit or an undocumentable expense payment fringe benefit - substitute documentary evidence of the recipients expenditure is maintained by or on behalf of the provider and, if the provider is not the employer, that documentary evidence, or a copy, is given to the employer before the declaration date; or
(B) in any case - documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date; or
(C) in any case - the recipient gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, in respect of the recipients expenditure; or
(i) where subparagraph (ia) does not apply and the fringe benefit is an undocumentable expense payment fringe benefit or an eligible small expense payment fringe benefit:
(A) documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date; or
(B) substitute documentary evidence of the recipients expenditure is maintained by or on behalf of the provider and, if the provider is not the employer, that documentary evidence, or a copy, is given to the employer before the declaration date; or
(d) where the expense payment fringe benefit is an extended travel expense payment benefit (other than an international aircrew expense payment benefit) - the recipient gives to the employer, before the declaration date, a travel diary in relation to the travel undertaken by the recipient to which the fringe benefit relates; and (e) except where the expense payment fringe benefit is:
(ii) in any other case - documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date; and
(i) an exclusive employee expense payment benefit; or
(ia) covered by a recurring fringe benefit declaration (see section 152A); or
(ii) an eligible overtime meal expense payment benefit; or
(iii) an eligible incidental travel expense payment benefit; or
(iv) an extended travel expense payment benefit; or
the recipient gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, in respect of the recipients expenditure; and (ea) where:
(v) a car expense payment benefit;
(i) the expense payment fringe benefit is a car expense payment benefit in respect of a car held by the recipient during a period (in this section called the holding period ) in the year of tax; and
the following conditions are satisfied:
(ii) the substantiation rules set out in Division 15 have been complied with in relation to the car in relation to the holding period;
(iii) the recipient gives to the employer, before the declaration date, a car substantiation declaration for the car for the year of tax;
(f) if:
(iv) in a case where the substantiation rules require log book records or odometer records to be maintained by or on behalf of the recipient in relation to the car - the car substantiation declaration is accompanied by a copy of those documents; and
(i) paragraph (ea) does not apply; and
the recipient gives a declaration to the employer, before the declaration date and in a form approved by the Commissioner, that purports to set out:
(ii) the expense payment fringe benefit is a car expense payment benefit in respect of a car held by the recipient during a period (the holding period ) in the year of tax;
(iii) the holding period; and
(iv) the number of whole business kilometres travelled by the car during the holding period; and
(v) the number of whole kilometres travelled by the car during the holding period;
the taxable value, but for Division 14, of the expense payment fringe benefit in relation to the year of tax is the amount calculated in accordance with the formula:
| TV − ND |
where:
TV
is the amount that, but for this subsection and Division 14, would be the taxable value of the expense payment fringe benefit in relation to the year of tax; and
(i) if it would be concluded that the amount of the providers portion would have been the same even if the recipients expenditure were not incurred in producing assessable income of the recipient - the business use percentage of the amount that, but for this subsection and Division 14, would be the taxable value of the expense payment fringe benefit in relation to the year of tax;
(j) where:
(ii) if subparagraph (i) does not apply:
(A) in the case of an in-house expense payment fringe benefit - the business use percentage of the amount that, but for this subsection and Division 14 and the recipients contribution, would be the taxable value of the expense payment fringe benefit in relation to the year of tax; or
(B) in the case of an external expense payment fringe benefit - the business use percentage of the recipients expenditure; or
(i) paragraph (f) applies; and
(ii) (Repealed by No 162 of 2015)
whichever of the following amounts is the least:
(iia) paragraph (l) does not apply;
(iii) the notional deduction;
(iv) if it would be concluded that the amount of the providers portion would have been the same even if the recipients expenditure were not incurred in producing assessable income of the recipient - 33⅓% of the amount that, but for this subsection and Division 14, would be the taxable value of the expense payment fringe benefit in relation to the year of tax;
(k) (Repealed by No 162 of 2015) (l) if, under subsection 138(3), the expense payment fringe benefit is deemed to have been provided to the recipient only - the amount calculated in accordance with subsection (9).
(v) if subparagraph (iv) does not apply:
(A) in the case of an in-house expense payment fringe benefit - 33⅓% of the amount that but for this subsection and Division 14 and the recipients contribution, would be the taxable value of the expense payment fringe benefit in relation to the year of tax; or
(B) in the case of an external expense payment fringe benefit - 33⅓% of the recipients expenditure; or
[ CCH Note: Legislative instruments F2024L00335 and F2024L00349 made under s 123AA of the Fringe Benefits Tax Assessment Act 1986 and effective for the FBT year ending 31 March 2025 and all subsequent years, allow an employer to which the instruments apply to accept adequate alternative records instead of the statutory evidentiary documents referred to in ss 24(1)(e) and 24(1)(d) respectively. Section 6 of each instrument sets out the adequate alternative records that can be accepted instead of the relevant statutory evidentiary document. Records can only be accepted as an alternative to the statutory evidentiary document if they are obtained and held by the employer by the employer's declaration date.]
24(2)
For the purposes of the application of this section in relation to a fringe benefit, where the recipient: (a) while undertaking travel referred to in paragraph (1)(d), engages in an activity in the course of producing assessable income of the recipient; and (b) does not make, as mentioned in the definition of travel diary in subsection 136(1), an entry relating to the activity, being an entry of the kind referred to in that definition;
the activity shall be deemed not to have been engaged in by the recipient in the course of producing assessable income.
24(3)
Where the sum of: (a) the recipients expenditure in respect of a small expense payment fringe benefit in relation to an employee in relation to an employer in relation to a year of tax; and (b) the total of the recipients expenditure in respect of all other small expense payment fringe benefits in relation to the employer in relation to the employee in relation to the year of tax, being fringe benefits provided before the fringe benefit referred to in paragraph (a);
does not exceed $200, the fringe benefit referred to in paragraph (a) is an eligible small expense payment fringe benefit.
24(3A)
For the purposes of this section, where the Commissioner is satisfied, having regard to the nature of the recipients expenditure in respect of an expense payment fringe benefit, that it would be unreasonable to expect the recipient to have obtained documentary evidence of the recipients expenditure, the expense payment fringe benefit shall be deemed to be, and always to have been, an undocumentable expense payment fringe benefit.
24(4)
For the purposes of paragraph (1)(c), the part of a petty cash book or similar document that sets out the particulars that would be set out in documentary evidence of the recipients expenditure (other than particulars of the date on which the documentary evidence was made out) is taken to be substitute documentary evidence of the recipients expenditure. The entry must be in English.
24(5)
Where: (a) the recipients expenditure in relation to each of 2 or more expense payment fringe benefits (whether or not in relation to the same year of tax) is the same expenditure; and (b) paragraph (1)(b) applies in relation to the recipients expenditure;
this Act applies, and shall be deemed always to have applied, as if all the payments or reimbursements to which those fringe benefits relate had been made at the time when the first of those payments or reimbursements was made and not otherwise, and nothing in section 74 prevents the amendment of an assessment for the purpose of giving effect to this subsection.
24(6)
For the purposes of the application of this section to an in-house expense payment fringe benefit, a reference to the recipients contribution in relation to the fringe benefit is a reference to the amount ascertained under whichever of paragraphs 22A(1)(b) or (2)(b) is applicable.
24(7)
(Repealed by No 162 of 2015)
24(8)
(Repealed by No 162 of 2015)
24(9)
For the purposes of paragraph (1)(l) (which applies to an expense payment fringe benefit that, under subsection 138(3), is deemed to have been provided to an employee only), the amount is calculated in accordance with the formula:
| Unadjusted ND × Employee's percentage of interest |
employee's percentage of interest
:
unadjusted ND
is the amount that would be ascertained as representing the component ND in the formula in subsection (1) if paragraph (1)(l) did not apply in relation to the expense payment fringe benefit.
Division 6 - Housing fringe benefits Subdivision A - Housing benefits SECTION 25 25 HOUSING BENEFITS
The subsistence during the whole or a part of a year of tax of a housing right granted by a person (in this section referred to as the provider ) to another person (in this section referred to as the recipient ) shall be taken to constitute a benefit provided by the provider to the recipient in respect of the year of tax. Subdivision B - Taxable value of housing fringe benefits SECTION 26 TAXABLE VALUE OF NON-REMOTE HOUSING FRINGE BENEFITS 26(1)
Subject to this Part, the taxable value of a housing fringe benefit provided in respect of the employment of an employee in relation to a year of tax is: (a) where the recipients unit of accommodation is not located in a State or internal Territory - so much of the market value of the recipients current housing right as exceeds the recipients rent; (b) where:
(i) paragraph (a) does not apply;
(ii) the recipients unit of accommodation is a caravan or mobile home or is in a hotel, motel, hostel or guesthouse; and
the amount calculated in accordance with the formula AB,
(iii) during the whole or a part of the tenancy period, the provider carried on a business consisting of or including the provision to outsiders, in respect of identical or similar caravans or mobile homes or in respect of identical or similar units of accommodation in the hotel, motel, hostel or guesthouse, of leases or licences that are identical or similar to the recipients overall housing right;
where:
A is the market value of the recipients current housing right; and
B is:
(iv) in a case where, if the fringe benefit were not a housing fringe benefit, it would be an in-house residual fringe benefit - 0.75; and
reduced by the recipients rent; and (c) in any other case - the amount calculated in accordance with the formula:
(v) in any other case - 1;
|
AB
C |
where:
26(2)
For the purposes of the application of subsection (1) in relation to a housing fringe benefit in relation to an employer in relation to a year of tax (in this subsection referred to as the current year of tax ), the statutory annual value of the recipients current housing right is: (a) if the current year of tax is a base year of tax in relation to the recipients current housing right - the amount calculated in accordance with the formula:
|
AB
C |
where:
where:
A is:
(i) if the year of tax immediately preceding the current year of tax was a base year of tax for the purpose of calculating the taxable value of:
(A) a housing fringe benefit in relation to the employer in respect of the recipients overall housing right or in respect of an equivalent housing right; orthestatutory annual value for the purposes of calculating the taxable value of the fringe benefit referred to in sub-subparagraph (A) or the weighted average of the statutory annual values for the purpose of calculating the taxable values of the housing fringe benefits referred to in sub-subparagraph (B) (those statutory annual values being weighted on the basis of the lengths of the respective periods during that preceding year of tax during which the housing rights to which those housing fringe benefits relate subsisted), as the case may be; and
(B) each of 2 or more such housing fringe benefits;
B is the indexation factor in respect of the current year of tax in respect of the State or Territory in which the recipients unit of accommodation is situated.
(ii) in any other case - the statutory annual value for the purpose of calculating the taxable values of housing fringe benefits in relation to the employer in relation to the year of tax immediately preceding the current year of tax, being housing fringe benefits in respect of the recipients overall housing right or equivalent housing rights; and
[ CCH Note: The indexation factors for component B for calculating the taxable value of housing fringe benefits for the relevant fringe benefits tax year are as follows:
| FBT Year | NSW | Vic | Qld | SA | WA | Tas | ACT | NT |
| 2024/25 | 1.073 | 1.050 | 1.085 | 1.063 | 1.084 | 1.022 | 1.038 | 1.055 |
| 2023/24 | 1.009 | 1.006 | 1.046 | 1.039 | 1.087 | 1.055 | 1.053 | 1.100 |
| 2022/23 | 0.980 | 0.990 | 1.019 | 1.020 | 1.044 | 1.037 | 1.024 | 1.030 |
| 2021/22 | 0.975 | 1.000 | 0.998 | 1.011 | 0.991 | 1.043 | 1.018 | 0.947 |
| 2020/21 | 1.000 | 1.017 | 1.002 | 1.010 | 0.969 | 1.056 | 1.029 | 0.948 |
| 2019/20 | 1.020 | 1.019 | 0.997 | 1.008 | 0.937 | 1.043 | 1.028 | 0.948 |
| 2018/19 | 1.024 | 1.018 | 0.999 | 1.004 | 0.924 | 1.040 | 1.016 | 0.932 |
| 2017/18 | 1.024 | 1.014 | 1.005 | 1.010 | 0.942 | 1.025 | 0.998 | 0.933 |
| 2016/17 | 1.025 | 1.022 | 1.013 | 1.016 | 0.988 | 1.010 | 0.978 | 0.997 |
| 2015/16 | 1.032 | 1.020 | 1.022 | 1.020 | 1.028 | 1.011 | 0.989 | 1.043 |
| 2014/15 | 1.037 | 1.020 | 1.022 | 1.024 | 1.067 | 1.010 | 1.017 | 1.076 |
| 2013/14 | 1.051 | 1.030 | 1.028 | 1.031 | 1.057 | 1.020 | 1.045 | 1.030 |
| 2012/13 | 1.060 | 1.040 | 1.028 | 1.042 | 1.035 | 1.039 | 1.056 | 1.026 |
| 2011/12 | 1.049 | 1.042 | 1.034 | 1.041 | 1.037 | 1.036 | 1.043 | 1.076 |
| 2010/11 | 1.068 | 1.057 | 1.071 | 1.050 | 1.082 | 1.049 | 1.124 | 1.061 |
| 2009/10 | 1.072 | 1.062 | 1.096 | 1.053 | 1.127 | 1.046 | 1.078 | 1.100 |
| 2008/09 | 1.045 | 1.044 | 1.073 | 1.041 | 1.097 | 1.054 | 1.059 | 1.072 |
| 2007/08 | 1.023 | 1.019 | 1.057 | 1.034 | 1.053 | 1.049 | 1.031 | 1.054 |
| 2006/07 | 1.015 | 1.013 | 1.048 | 1.029 | 1.025 | 1.036 | 1.029 | 1.034 |
| 2005/06 | 1.018 | 1.017 | 1.044 | 1.033 | 1.025 | 1.043 | 1.067 | 1.021 |
| 2004/05 | 1.010 | 1.016 | 1.036 | 1.034 | 1.016 | 1.033 | 1.053 | 1.010 |
| 2003/04 | 1.022 | 1.026 | 1.026 | 1.030 | 1.018 | 1.029 | 1.052 | 1.004 |
| 2002/03 | 1.041 | 1.027 | 1.020 | 1.029 | 1.018 | 1.023 | 1.052 | 0.995 |
| 2001/02 | 1.039 | 1.031 | 1.014 | 1.027 | 1.023 | 1.011 | 1.044 | 0.984] |
26(3)
For the purposes of the application of subsection (2) in relation to a housing fringe benefit in relation to an employer in relation to a year of tax (in this subsection referred to as the current year of tax ), the current year of tax is a base year of tax in relation to the recipients current housing right if:
(a) (Repealed by No 178 of 1999) (aa) the employer elects that the current year of tax be treated as a base year of tax in relation to the recipients overall housing right or an equivalent housing right; (b) there was no housing fringe benefit, in relation to the employer in relation to the year of tax immediately preceding the current year of tax, in respect of the recipients overall housing right or in respect of an equivalent housing right; or (c) the following conditions are satisfied:
(i) in relation to each of the 9 years of tax immediately preceding the current year of tax there was a housing fringe benefit in relation to the employer in respect of the recipients overall housing right or an equivalent housing right;
(ii) none of those 9 years of tax was a base year of tax for the purpose of calculating the taxable value of a housing fringe benefit to which subparagraph (i) applies.
26(4)
For the purposes of this section: (a) 2 or more housing rights shall be taken to be included in the same class of housing rights if:
(i) the housing rights are in respect of the same unit of accommodation; and
(b) a housing right shall be taken to be equivalent to another housing right if each of those housing rights is included in the same class of housing rights.
(ii) the conditions (other than as to duration or consideration) of the housing rights are the same or substantially the same; and
26(5)
For the purposes of this section, where a material alteration to a unit of accommodation results in an increase or decrease of not less than 10% in the market value of the right to occupy or use the unit: (a) the unit of accommodation after the alteration shall be deemed to be a different unit of accommodation from the unit of accommodation before the alteration; and (b) if the alteration occurs during the subsistence of a housing right granted to a person in respect of the unit of accommodation, that housing right, as it subsists after the alteration, shall be deemed to have been granted to the person in respect of the unit of accommodation as it existed after the alteration and to have been so granted in the same circumstances as the first-mentioned housing right.
26(6)
A reference in subsection (5) to a material alteration to a unit of accommodation is a reference to: (a) additions or improvements made to, or other work carried out in relation to; (b) any damage to; or (c) the addition of facilities to, or the removal of facilities from;
the unit of accommodation or any building, place or facility associated with the occupation or use of the unit of accommodation.
26(7)
An election by an employer under paragraph (3)(aa) in relation to a year of tax: (a) shall be made by notice in writing to the Commissioner; and (b) shall be lodged with the Commissioner on or before the declaration date in relation to the year of tax.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Section 26 of the Act is modified by substituting the section:
SECTION 26 TAXABLE VALUE OF HOUSING FRINGE BENEFITS
]
26
Subject to this Part, the value of a housing fringe benefit in relation to a contribution assessment period is the portion of the market value of the recipient's current housing right that exceeds the recipient's rent.
For the purposes of determining the market value of the recipients current housing right in relation to a housing fringe benefit, where the recipient is entitled, pursuant to the housing right, to require a second person to:
(a) make a payment in discharge, in whole or in part, of an obligation of the recipient to pay an amount to a third person in respect of expenditure incurred by the recipient; or
(b) to reimburse the recipient, in whole or in part, in respect of an amount of expenditure incurred by the recipient;
that entitlement shall be disregarded.
27(2) [Housing right subject to onerous conditions]For the purposes of determining the market value of the recipients current housing right in relation to a housing fringe benefit provided in respect of the employment of an employee, any onerous conditions that are attached to the housing right and that relate to his or her employment shall be disregarded.
SECTION 28 INDEXATION FACTOR FOR VALUATION PURPOSES - NON-REMOTE HOUSING 28(1)For the purposes of section 26, the indexation factor in respect of a year of tax (in this subsection referred to as the "current year of tax" ) in respect of a State or Territory is the number (calculated to 3 decimal places) ascertained, as at the date on which the rent index number in respect of the State or Territory for the December quarter immediately preceding the current year of tax was first published, by dividing the sum of: (a) the rent index number in respect of the State or Territory in respect of the December quarter immediately preceding the current year of tax; and (b) the rent index numbers in respect of the State or Territory in respect of the 3 quarters that immediately preceded that quarter;
by the sum of:
(c) the rent index number in respect of the State or Territory in respect of the December quarter immediately preceding the year of tax that next preceded the current year of tax; and (d) the rent index numbers in respect of the State or Territory in respect of the 3 quarters that immediately preceded the last-mentioned quarter.28(2)
Subject to subsection (3), if at any time, whether before or after the commencement of this section, the Australian Statistician has published or publishes a rent index number in respect of a State or Territory in respect of a quarter in substitution for a rent index number in respect of the State or Territory previously published in respect of that quarter, the publication of the later rent index number shall be disregarded for the purposes of this section.
28(3)
If at any time, whether before or after the commencement of this section, the Australian Statistician has changed or changes the index reference period for the rent sub-group of the Consumer Price Index, then, for the purposes of the application of this section after the change took place or takes place, regard shall be had only to the index numbers published in terms of the new index reference period.
28(4)
Where the factor ascertained in accordance with subsection (1) in relation to a year of tax would, if it were calculated to 4 decimal places, end with a number greater than 4, the factor ascertained in accordance with that subsection in relation to that year of tax shall be taken to be the factor calculated to 3 decimal places in accordance with that subsection and increased by 0.001.
28(5)
For the purposes of this Subdivision: (a) the Jervis Bay Territory shall be deemed to be part of the State of New South Wales; and (b) the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands shall be deemed to be part of the Northern Territory.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Sections 28 to 29A of the Act are modified by repealing the sections.]
(Repealed by No 52 of 2000)
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Sections 28 to 29A of the Act are modified by repealing the sections.]
(Repealed by No 52 of 2000)
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Sections 28 to 29A of the Act are modified by repealing the sections.]
Where:
(a) at a particular time, in respect of the employment of an employee of an employer, the employer pays an allowance to the employee; and
(b) it would be concluded that the whole or a part of the allowance is in the nature of compensation to the employee for:
(i) additional expenses (not being deductible expenses) incurred by the employee during a period; or
by reason that the duties of that employment require the employee to live away from his or her normal residence;
(ii) additional expenses (not being deductible expenses) incurred by the employee, and other additional disadvantages to which the employee is subject, during a period;
the payment of the whole, or of the part, as the case may be, of the allowance constitutes a benefit provided by the employer to the employee at that time.
30(2)
If:
(a) at a particular time after 10 October 1991, in respect of the employment of an employee of an employer, the employer pays an allowance to the employee; and
(b) the employee's usual place of employment is on an oil rig, or other petroleum or gas installation, at sea; and
(c) the employee is provided with residential accommodation at or near that usual place of employment; and
(d) the allowance is expressed to be paid as a living-away-from-home allowance; and
(e) no part of the allowance is covered by subsection (1); and
(f) it would be concluded that the whole or a part of the allowance is in the nature of compensation to the employee for disadvantages to which the employee is subject, during a period, by reason that the duties of that employment require the employee to live away from his or her usual place of residence;
the payment of the whole of the allowance constitutes a benefit provided by the employer to the employee at that time.
Subdivision B - Taxable value of living-away-from-home allowance fringe benefits
This section applies to a living-away-from-home allowance fringe benefit covered by subsection 30(1) in relation to a year of tax to the extent that the employee satisfies all of the following for the fringe benefit and the period to which it relates: (a) section 31C (about maintaining an Australian home); (b) section 31D (about the first 12 months); (c) section 31F (about declarations).
31(2)
Subject to this Part, the taxable value of the fringe benefit in relation to the year of tax is the amount of the fringe benefit reduced by: (a) any exempt accommodation component; and (b) any exempt food component.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsection 31(2) of the Act is modified by inserting the subsection:
]
31(2)
For the purposes of this section, "deducted home consumption expenditure" referred to in the definition of exempt food component in section 136 is to be taken to be:
(a) in relation to a person of the age of 12 years or over - $42; and
(b) in relation to a person under the age of 12 years - $21.Example:
Calculation of the value of a living-away-from-home allowance.
Assume that a bankrupt living away from their family is given a living-away-from-home allowance of $220 a week. Of this amount, $100 represents reasonable compensation for the costs of accommodation (i.e. the "exempt accommodation component" is $100), and $80 represents reasonable compensation for the cost of food.
The remaining $40 is compensation for the disadvantage of living away from home in a town where facilities that would be available at home are not available.
Under subsection 31(2), the exempt food component is $80 minus $42 (i.e. the compensation for increased food cost less the deducted home consumption expenditure). The value of the benefit is:
$200 − $100 − ($80 − $42) = $62
31(3)
Paragraph (2)(b) does not apply to the extent that the fringe benefit relates to a period during which the employee resumes living at his or her normal residence.
31(4)
Neither paragraph (2)(a) nor (b) applies to the extent that the period to which the fringe benefit relates happens while the 12-month period referred to in subsection 31D(1) is paused.
Note:
The employer may pause that 12-month period (see paragraph 31D(2)(a)).
This section applies to a living-away-from-home allowance fringe benefit covered by subsection 30(1) in relation to a year of tax to the extent that the employee satisfies all of the following for the fringe benefit and the period to which it relates:
(a) the requirement that the employee has residential accommodation at or near his or her usual place of employment;
(b) section 31E (about extra requirements for these employees);
(c) section 31F (about declarations).
31A(2)
Subject to this Part, the taxable value of the fringe benefit in relation to the year of tax is the amount of the fringe benefit reduced by:
(a) any exempt accommodation component; and
(b) any exempt food component.
This section applies to a living-away-from-home allowance fringe benefit in relation to a year of tax to the extent that neither section 31 nor 31A applies to the fringe benefit and the period to which it relates.
31B(2)
Subject to this Part, the taxable value of the fringe benefit in relation to the year of tax is the amount of the fringe benefit.
The employee satisfies this section if:
(a) the place in Australia where the employee usually resides when in Australia:
(i) is a unit of accommodation in which the employee or the employee's spouse has an ownership interest (within the meaning of the Income Tax Assessment Act 1997); and
(ii) continues to be available for the employee's immediate use and enjoyment during the period that the duties of that employment require the employee to live away from it; and
(b) it is reasonable to expect that the employee will resume living at that place when that period ends.
The employee satisfies this section if the fringe benefit relates only to all or part of the first 12 months that the duties of that employment require the employee to live away from the place in Australia where he or she usually resides when in Australia.
31D(2)
Each of the following paragraphs applies for the purposes of subsection (1):
(a) the employer may pause the 12-month period;
(b) start a separate 12-month period if:
(i) the employer later requires the employee to live at another location for the purposes of that employment; and
(ii) it would be unreasonable to expect the employee to commute to that other location from an earlier location for which the employer provided a benefit of the same kind to the employee;
(c) other changes in the nature of that employment are irrelevant;
(d) treat as one employer any of the employee's earlier employers that is or has been an associate of the current employer.
The employee satisfies this section if:
(a) the employee, on a regular and rotational basis:
(i) works for a number of days and has a number of days off (but not the same days in consecutive weeks); and
(ii) on completion of the working days, travels from his or her usual place of employment to his or her normal residence and, on completion of the days off, returns to that usual place of employment; and
(b) the basis of work described in paragraph (a) is customary for employees performing similar duties in that industry; and
(c) it would be unreasonable to expect the employee to travel on a daily basis on work days between:
(i) his or her usual place of employment; and
(ii) his or her normal residence;
having regard to the location of those places; and
(d) it is reasonable to expect that the employee will resume living in his or her normal residence when the duties of that employment no longer require him or her to live away from it.
The employee satisfies this section if the employee gives the employer a declaration, in a form approved by the Commissioner, purporting to set out: (a) for a fringe benefit to which section 31 (about employees who maintain an Australian home) applies:
(i) the address of the place in Australia where the employee usually resides when in Australia; and
(ii) that section 31C is satisfied for that place; and
(b) for a fringe benefit to which section 31A (about employees who fly-in fly-out or drive-in drive-out) applies:
(iii) the address of each place where the employee actually resided during the period to which the benefit relates; or
(i) the address of the employee's usual place of residence; and
(ii) that paragraph 31E(d) is satisfied for the employee's normal residence; and
(iii) the address of each place where the employee actually resided during the period to which the benefit relates.
[ CCH Note: Legislative instruments F2024L00348 and F2024L00332, made under s 123AA of the Fringe Benefits Tax Assessment Act 1986 and effective for the FBT year ending 31 March 2025 and all subsequent years, allow an employer to which the instruments apply to accept adequate alternative recordsinstead of the declarations referred to in ss 31F(1)(a) and 31F(1)(b) respectively. Section 6 of each instrument sets out adequate alternative records that can be accepted instead of a relevant employee declaration. Records can only be accepted as an alternative to a declaration if they are obtained and held by the employer by the employer's declaration date.]
31F(2)
The employee must give the employer the declaration before the declaration date for the year of tax during which the benefit was provided.
This section applies to the following expenses incurred by the employee:
(a) an expense for the accommodation of eligible family members during the period to which a living-away-from-home allowance fringe benefit relates;
(b) an expense for food or drink for eligible family members during the period to which a living-away-from-home allowance fringe benefit relates, if the total of those food or drink expenses for that period exceeds the amount the Commissioner considers reasonable.
31G(2)
The employee substantiates the expense if the employee:
(a) before the declaration date for the year of tax during which the fringe benefit was provided, gives the employer:
(i) documentary evidence of the expense, or a copy; or
(ii) a declaration, in a form approved by the Commissioner, purporting to set out information about the expense; and
(b) if the employee gives a declaration under subparagraph (a)(ii) - retains documentary evidence of the expense for a period of 5 years starting at that declaration date.
Note:
Substantiating expenses increases the exempt accommodation component, and exempt food component, for working out the taxable value of the relevant fringe benefit.
The exempt food component , in relation to a living-away-from-home allowance fringe benefit, is so much of the result of subsection (2) as is equal to the total of the expenses that:
(a) are incurred by the employee for food or drink for eligible family members during the period to which the fringe benefit relates; and
(b) if section 31G applies to the expenses - are substantiated under that section.
31H(2)
Work out the result of the following:
Food component − Applicable statutory food total
where:
applicable statutory food total
means the total of the statutory food amounts for eligible family members for the period to which the fringe benefit relates, reduced (but not below zero) by any amount that:
(a) might reasonably be expected to be the total normal food or drink expenses for those eligible family members had they remained living in their normal residence during that period; and
(b) was taken into account in working out the food component.
(Repealed by No 88 of 2013)
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Sub-subparagraph 32(b)(ii)(B) of the Act is modified by omitting "and".
Paragraph 32(c) of the Act is modified by repealing the paragraph.]
(Repealed by No 88 of 2013)
(Repealed by No 88 of 2013)
Where, at a particular time, a person (in this section referred to as the provider ) provides a board meal to another person (in this section referred to as the recipient ), the provision of the meal shall be taken to constitute a benefit provided by the provider to the recipient at that time. Subdivision B - Taxable value of board fringe benefits SECTION 36 36 TAXABLE VALUE OF BOARD FRINGE BENEFITS
Subject to this Part, the taxable value of a board fringe benefit in relation to a year of tax is: (a) in a case where the recipient had attained the age of 12 years before the beginning of the year of tax - $2.00; or (b) in any other case - $1.00;
reduced by the amount of the recipients contribution.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Section 36 of the Act is modified by substituting the section:
where:
CPI
SECTION 36 TAXABLE VALUE OF BOARD FRINGE BENEFITS
]
36
Subject to this Part, the value of a board fringe benefit is:
(a)
in relation to a contribution assessment period beginning:
(i)
on 1 July 1992; or
$1; and
(ii)
during the year beginning on 1 July 1992;
(b)
in relation to a later contribution assessment period - a sum worked out according to the formula:
1 × CPI
is the increase in the All Groups Consumer Price Index number that is the weighted average of the 8 capital cities published by the Australian Statistician in respect of the period that commences on 1 July 1992 and ends immediately before the start of the financial year in which the contribution assessment period commences.
Where: (a) the recipient of a board fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer; (b) if the recipient had, at the time when the benefit was provided, incurred and paid unreimbursed expenditure (in this section called the "gross expenditure" ), in respect of the provision of the recipients meal, equal to the amount that, but for this subsection and Division 14 and the recipients contribution, would be the taxable value of the board fringe benefit in relation to the year of tax - a deduction (in this section called the "gross deduction" ) would, or would but for Divisions 28 and 900 of the Income Tax Assessment Act 1997, have been allowable to the recipient under section 8-1 of the Income Tax Assessment Act 1997 in respect of the whole or a part of the gross expenditure; and (c) the amount (in this section called the "notional deduction" ) calculated in accordance with the formula:
| GD − RD |
where:
GD is the gross deduction; and
RD is:
exceeds nil;
the amount that, but for this section and Division 14, would be the taxable value of that fringe benefit in relation to the year of tax shall be reduced by the notional deduction.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Section 37 of the Act is modified by repealing the section.]
An employer may elect that this Division will apply to the employer for an FBT year. If the employer does this, the taxable value of meal entertainment fringe benefits provided to the employer's employees and associates of those employees by the employer will either be half the expenses incurred for the FBT year by the employer in providing meal entertainment benefits or, if the employer makes a further election, an amount worked out based on a 12 week register kept by the employer.
An employer may elect that this Division applies to the employer for an FBT year.
For the purposes of this Division any reference to expenses or expenditure in relation to meal entertainment or meal entertainment benefits excludes any contribution from an employee or an associate of an employee that is not subject to reimbursement by the employer.
If, at a particular time:
(a) an employer (the provider ) to whom this Division applies provides meal entertainment to another person (the recipient ); and
(b) the meal entertainment is not provided under a salary packaging arrangement;
the provision of the meal entertainment is a meal entertainment benefit provided by the provider to the recipient at that time.
A reference to the provision of meal entertainment is a reference to the provision of:
(a) entertainment by way of food or drink; or
(b) accommodation or travel in connection with, or for the purpose of facilitating, entertainment to which paragraph (a) applies; or
(c) the payment or reimbursement of expenses incurred in providing something covered by paragraph (a) or (b);
whether or not:
(d) business discussions or business transactions occur; or
(e) in connection with the working of overtime or otherwise in connection with the performance of the duties of any office or employment; or
(f) for the purposes of promotion or advertising; or
(g) at or in connection with a seminar.
No meal entertainment fringe benefit arises where the employer in relation to whom the benefit would otherwise arise is not the provider of the benefit.
If a meal entertainment fringe benefit arises in respect of the provision of meal entertainment, no other fringe benefit arises in relation to any person in respect of the provision of the meal entertainment.
To avoid doubt, sections 37AE and 37AF do not prevent a fringe benefit in relation to an employer arising under any provision of this Act where the employer is not the provider of the benefit.
If an employer elects that this Division applies, then (unless the employer elects that Subdivision C applies) the taxable value of meal entertainment fringe benefits provided to the employer's employees and associates of those employees by the employer is half the expenses incurred for the FBT year by the employer in providing meal entertainment benefits.
If this Division applies to an employer for an FBT year then, unless the employer elects that Subdivision C applies, the total taxable value of meal entertainment fringe benefits of the employer for the FBT year is 50% of the expenses incurred by the employer in providing meal entertainment for the FBT year.
Note:
This means that the employer's aggregate fringe benefits amount (see section 5C) for the FBT year will include 50% of the total expenses incurred by the employer for the provision of meal entertainment to all persons in the FBT year.
If an employer elects that this Subdivision applies, the taxable value of meal entertainment fringe benefits is to be calculated by reference to a 12 week register kept by the employer.
An employer who elects that this Division applies may elect also that this Subdivision applies to meal entertainment provided by the employer for an FBT year if the employer has a valid meal entertainment register for that year.
If the employer elects that this Subdivision applies for an FBT year then, despite any other provision of this Act, the taxable value of meal entertainment fringe benefits for the employer for the FBT year is worked out using the formula:
| Total meal entertainment expenditure × Register percentage |
Note:
This means that the employer's aggregate fringe benefits amount (see section 5C) for the FBT year will include a proportion of the expenses incurred by the employer for the provision of meal entertainment for all persons in the FBT year. The proportion is worked out on the basis of the 12 week register.
The register percentage is the percentage worked out using the formula:
|
Total value of meal entertainment
fringe benefits Total value of meal entertainment |
× 100% |
where:
total value of meal entertainment fringe benefits means the total value of meal entertainment fringe benefits that are provided by the employer in the 12 week period covered by the employer's register.
total value of meal entertainment means the total value of meal entertainment provided by the employer during the 12 week period covered by the register.
37CB(3) [Total meal entertainment expenditure]The total meal entertainment expenditure is the total of expenses incurred by the employer in providing meal entertainment for the FBT year.
The register must be kept for a continuous period of at least 12 weeks throughout which meal entertainment is provided by the employer.
37CC(2) [Period must be representative]The period for which the register is kept must be representative of the first FBT year for which it is valid.
37CC(3) [Register not valid]If the register does not meet these conditions it is not valid.
If the 12 week period begins and ends in the same FBT year, the register is valid for that FBT year and, subject to subsection (3), for each of the 4 FBT years immediately following that year.
37CD(2) 12 week period over 2 FBT years.If the 12 week period begins in one FBT year and ends in another FBT year, the register is only valid for the second FBT year and, subject to subsection (3), for each of the 4 FBT years immediately following that year.
37CD(3) When register ceases to be valid.A register that is valid for an FBT year ceases to be valid at the end of that FBT year if the total of expenses incurred by the employer in providing meal entertainment for that FBT year is more than 20% higher than the corresponding total for the first FBT year for which the register was valid. A register also ceases to be valid for an FBT year if there is a later valid register for that FBT year.
The register must include the details of the following:
(a) the date the employer provided meal entertainment;
(b) for each recipient of meal entertainment - whether the recipient is an employee of the employer or an associate of an employee of the employer;
(c) the cost of the meal entertainment;
(d) the kind of meal entertainment provided;
(e) where the meal entertainment is provided;
(f) if the meal entertainment is provided on the employer's premises - whether it is provided in an in-house dining facility within the meaning of section 32-55 of the Income Tax Assessment Act 1997.
A person responsible for making entries in the register must make the entry as soon as practicable after he or she knows the details required by subsection (1).
For the purposes of this Act, a register is not valid if the register contains an entry that is false or misleading in a material particular.
Where, at a particular time, a person (in this section referred to as the provider ) incurs non-deductible exempt entertainment expenditure that is wholly or partly in respect of the provision, in respect of the employment of an employee, of entertainment to a person (in this section referred to as the recipient ) being the employee or an associate of the employee, the incurring of the expenditure shall be taken to constitute a benefit provided by the provider to the recipient at that time in respect of that employment. Subdivision B - Taxable value of tax-exempt body entertainment fringe benefits SECTION 39 39 TAXABLE VALUE OF TAX-EXEMPT BODY ENTERTAINMENT FRINGE BENEFITS
Subject to this Part, the taxable value of a tax-exempt body entertainment fringe benefit in relation to an employer in relation to a year of tax is so much of the expenditure referred to in section 38 as is attributable to the provision of the entertainment referred to in that section.
If the following conditions are satisfied in relation to a daylight period, or a combination of daylight periods, on a particular day: (a) during the period or periods, a car is parked on one or more premises of a person (the provider ), where:
(i) the premises, or each of the premises, on which the car is parked are business premises, or associated premises, of the provider; and
(ii) a commercial parking station is located within a 1 km radius of the premises, or each of the premises, on which the car is parked; and
(b) the total duration of the period or periods exceeds 4 hours; (c) any of the following applies:
(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;
(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;
(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:
(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;
(i) the place of residence of the employee; and
(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;
(ii) that primary place of employment;
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.
39A(2)
For the purposes of this section: (a) the carparking threshold for the FBT year beginning on 1 April 1995 is $5.00; and (b) for later years the carparking threshold is the threshold for the previous FBT year as adjusted on the first business day of the later FBT year by a factor equivalent to the movement in the preceding twelve months in the All Groups Consumer Price Index number (being the weighted average of the 8 capital cities) published by the Australian Statistician.
[ CCH Note: The car parking threshold for the FBT year commencing 1 April 2024 is $10.77; 1 April 2023 is $10.40; 1 April 2022 is $9.72; 1 April 2021 is $9.25; 1 April 2020 is $9.15; 1 April 2019 is $8.95; 1 April 2018 is $8.83; 1 April 2017 is $8.66; 1 April 2016 is $8.48; 1 April 2015 is $8.37; 1 April 2014 is $8.26; 1 April 2013 is $8.03; 1 April 2012 is $7.83; 1 April 2011 is $7.71; 1 April 2010 is $7.46; 1 April 2009 is $7.25; 1 April 2008 is $7.07; 1 April 2007 is $6.78; 1 April 2006 is $6.62; 1 April 2005 is $6.43; 1 April 2004 is $6.28; 1 April 2003 is $6.16; 1 April 2002 is $5.96; 1 April 2001 is $5.79; 1 April 2000 is $5.46.]
39A(2A)
However, the factor mentioned in paragraph (2)(b) is taken to be 1 if the movement described in that paragraph is down.
39A(3)
Subject to subsection (4), if at any time, whether before or after the commencement of this Act, the Australian Statistician has published or publishes an index number in respect of a quarter in substitution for an index number previously published by the Australian Statistician in respect of that quarter, the publication of the later index number is to be disregarded for the purposes of this section.
39A(4)
If at any time, whether before or after the commencement of this section, the Australian Statistician has changed or changes the index reference period for the Consumer Price Index, then, for the purposes of the application of this section after the change, regard is to be had only to the index numbers published in terms of the new index reference period.
SECTION 39AA 39AA ANTI-AVOIDANCE - FEE ON FIRST BUSINESS DAY NOT REPRESENTATIVE
For the purposes of subparagraph 39A(1)(a)(iii), any fee charged on the first business day of an FBT year that is not representative is to be disregarded.
A fee charged by an operator of a commercial parking station on a particular day is not representative if the fee is substantially greater or less than the average of the lowest fee charged by the operator in the ordinary course of business to members of the public for all-day parking on each of the days in whichever of the following periods is chosen by the employer:
(a) the 4 week period beginning on the day; or
(b) the 4 week period ending on the day.
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.
Subject to this Part, the taxable value, in relation to an FBT year, of a car parking fringe benefit provided on a day in the FBT year in connection with one or more premises is equal to:
(a) if, on that day, there is only one commercial parking station located within a 1 km radius of any of those premises - the lowest fee charged by the operator of the parking station in the ordinary course of business to members of the public for all-day parking on that day; or
(b) if, on that day, there are 2 or more commercial parking stations located within a 1 km radius of any of those premises - the lowest fee charged by any of the operators of those parking stations in the ordinary course of business to members of the public for all-day parking on that day;
reduced by the amount of the recipients contribution.
An employer may elect that this section apply in relation to any or all of the car parking fringe benefits in relation to the employer in relation to a particular FBT year.
Subject to this Part, if an election is made under subsection (1) in relation to a car parking fringe benefit provided on a day in an FBT year, the taxable value, in relation to the FBT year, of the fringe benefit is:
(a) the amount that the recipient could reasonably be expected to have been required to pay the provider in respect of the provision of the benefit if it were assumed that the provider and the recipient were dealing with each other at arm's length;
reduced by:
(b) the amount of the recipients contribution.
An election purporting to be made under subsection (1) in relation to one or more car parking fringe benefits is of no effect unless:
(a) a suitably qualified valuer gives to the employer, before the declaration date, a report, in a form approved by the Commissioner, about the valuation of the fringe benefits; and
(b) the valuer is at arm's length in relation to the valuation; and
(c) the return of the employer of the FBT year, in so far as it relates to the taxable values of the fringe benefits, is based on the report.
An employer may elect that this section applies to any or all of the employer's car parking fringe benefits for a particular FBT year.
39DA(2) Taxable value.Subject to this Part, if an election covers a car parking fringe benefit, the taxable value of the fringe benefit is the average cost worked out under subsection (3) reduced by the recipients contribution.
39DA(3) Method of working out average cost.The average cost is:
|
A + B
2 |
where:
A is the lowest fee charged in the ordinary course of business to members of the public for all-day parking by any operator of a commercial parking station located within a 1 km radius of any of the relevant parking premises on the day on which a car parking benefit is first provided in that FBT year in relation to the employer in connection with any of those premises.
B is the lowest fee charged in the ordinary course of business to members of the public for all-day parking by any operator of a commercial parking station located within a 1 km radius of any of the relevant parking premises on the day on which a car parking benefit is last provided in that FBT year in relation to the employer in connection with any of those premises.
relevant parking premises means the premises referred to in paragraph 39A(1)(a).
An election is of no effect if the fees referred to in subsection (3) are not representative (see section 39AB).
For the purposes of this Division, if the operator of a commercial parking station provides all-day parking in the ordinary course of business to members of the public on a weekly, monthly, yearly or other periodic basis, the operator is taken to charge a fee for all-day parking on a particular day during the period equal to the amount worked out using the formula:
|
Total fee
Business days in period |
where:
Total fee is the total fee charged by the operator in respect of all-day parking on days in that period;
Business days in period means the number of business days in that period.
If either or both of the following apply:
(a) a transaction between the operator of a commercial parking station and a customer is not at arm's length;
(b) the operator of a commercial parking station sets the level of a fee for the sole or dominant purpose of enabling one or more employers to obtain reductions in the taxable values of car parking fringe benefits;
then, for the purposes of this Subdivision:
(c) if only paragraph (a) applies - it is to be assumed that the fee is the fee that would have been payable if the operator and the customer had been dealing with each other at arm's length in relation to the transaction; and
(d) if only paragraph (b) applies - it is to be assumed that the fee is the fee that would have been payable if it had been set without that purpose in mind; and
(e) if both paragraphs (a) and (b) apply - it is to be assumed that the fee is the fee that would have been payable if:
(i) the operator and the customer had been dealing with each other at arm's length in relation to the transaction; and
(ii) it had been set without that purpose in mind.
Under this Subdivision, an employer may elect to calculate the value of certain car parking fringe benefits by using a statutory formula based on the number and value of spaces available to employees covered by the election.
If a provider provides one or more car parking benefits in respect of one or more employees of an employer in a particular FBT year, the employer may elect that this Subdivision applies to the employer's car parking fringe benefits for some or all of the employees for that FBT year.
39FA(2) Employer must specify employees covered by election.The employer must specify that the election covers:
(a) all the employees; or
(b) all employees of a particular class; or
(c) particular employees. 39FA(3) Total value of car parking fringe benefits.
Despite any other provision of this Act (other than section 39FB) the total taxable value of the employer's car parking fringe benefits for employees covered by the election for the FBT year is the amount worked out using the spaces method under subsection (4).
Note:
Section 39FB covers the situation where the number of spaces available to employees exceeds the number of employees.
39FA(4) Method.The spaces method is:
| Step 1: | Work out an amount using the following formula, for each space for which there is, in the FBT year, at least one car parking benefit for an employee covered by the election: | ||||
| Daily rate amount | × |
Number of days in
availability periods in relation to the space 366 |
× | 228 | |
| Step 2: | Work out the total of all the amounts calculated under Step 1 (the total statutory benefit ). | ||||
| Step 3: | Subtract from the total statutory benefit the sum of all relevant recipients contributions. |
Note 1:
Section 39FC defines daily rate amount .
Note 2:
Section 39FD defines availability period .
Note 3:
Section 39FE defines relevant recipients contribution .
39FA(5) [Fees must be representative]The election is of no effect if, in working out the daily rate for a space, the fees referred to in subsection 39DA(3) are not representative (see section 39AB).
This section applies if, throughout the parking period (see subsection (5)), the average number of employees covered by the election is less than the average number of spaces ( eligible spaces ) for which there is an availability period.
39FB(2) Formula to reduce total statutory benefits.If this section applies, the total statutory benefit (see Step 2 in subsection 39FA(4)) is multiplied by the following fraction:
| Average number of employees | ||
| Average number of eligible spaces |
The average number of employees is:
| Number of employees covered by election at the beginning of the parking period | + | Number of employees covered by election at the end of the parking period | ||
| 2 |
The average number of eligible spaces is:
| Number of eligible spaces at the beginning of the parking period | + | Number of eligible spaces at the end of the parking period | ||
| 2 |
The parking period is the period:
(a) beginning on the first day in the FBT year on which the parking of a car in any space referred to in subsection 39FA(4) gives rise to a car parking fringe benefit of the employer for an employee covered by the election; and
(b) ending on the last day in the FBT year on which the parking of a car in any space referred to in subsection 39FA(4) gives rise to a car parking fringe benefit of the employer for an employee covered by the election. 39FB(6) Number of employees and number of spaces must be representative.
This section does not apply if the number of employees or the number of eligible spaces referred to in subsections (3) and (4) are not representative (see subsection (7)).
39FB(7) Meaning of not representative.A number of employees, or a number of eligible spaces, as the case requires, is not representative if the number of employees, or eligible spaces, as the case requires, is substantially greater or less than the average number throughout whichever of the following periods is chosen by the employer:
(a) the 4 week period ending on the first day of the parking period; or
(b) the 4 week period beginning on the last day of the parking period.
The daily rate amount for a space is the amount that would be worked out using whichever of the following methods that the taxpayer chooses:
(a) the commercial parking station method;
(b) the market value method;
(c) the average cost method;
as the taxable value of the car parking fringe benefit for the space, if there were no recipients contribution.
An availability period for a space begins on the first day in the FBT year on which there is a car parking benefit for the space for an employee covered by the election and ends on the last day in the FBT year on which there is a car parking benefit for the space for an employee covered by the election.
A relevant recipients contribution is a recipients contribution in respect of any car parking fringe benefit provided in respect of the employment of an employee covered by the election for the FBT year.
Under this Subdivision, an employer may keep a 12 week register of car parking provided to employees. An employer who keeps such a register may elect that the total value of certain car parking fringe benefits for an FBT year for which the register is valid is to be determined in accordance with the register.
An employer may elect that this Subdivision applies to the employer's car parking fringe benefits for some or all of the employer's employees for that FBT year if the employer has a valid register for that FBT year covering those employees.
39GA(2) [Employees covered]The employer must specify that the election covers:
(a) all the employees; or
(b) all employees of a particular class; or
(c) particular employees.
Despite any other provision of this Act (other than this section), the total taxable value of the employer's car parking fringe benefits for employees covered by the election for the FBT year is the amount worked out using the formula:
The total value of car parking benefits (register) , in relation to the FBT year, means the amount that would be the total taxable value of car parking fringe benefits for employees covered by the election for the 12 week period for which a register is kept, assuming that:
(a) the register had been kept in that FBT year; and
(b) the value of the benefits were calculated in accordance with the information in the register; and
(c) the value of the benefits were calculated using whichever of the following methods that the taxpayer chooses:
(i) the commercial parking station method;
(ii) the market value method;
(iii) the average cost method.
The car parking availability period is the period:
(a) beginning on the first day in the FBT year on which there is a car parking benefit for an employee covered by the election; and
(b) ending on the last day in the FBT year on which there is a car parking benefit for an employee covered by the election.
The register must be kept for a continuous period of at least 12 weeks throughout which car parking benefits are provided to employees covered by the election.
39GE(2) [Period must be representative]The period for which the register is kept must be representative of usage for the first FBT year for which it is valid.
39GE(3) [Register not valid]If subsection (1) or (2) is not satisfied, the register is not valid.
If the 12 week period begins and ends in the one FBT year, the register is valid for that FBT year and, subject to subsections (3) and (4), for each of the 4 FBT years immediately following that year.
39GF(2) 12 week period over 2 FBT years.If the 12 week period begins in one FBT year and ends in another FBT year, the register is only valid for the second FBT year and, subject to subsections (3) and (4), for each of the 4 years immediately following that year.
39GF(3) When register ceases to be valid - increase in benefits.A register that is valid for an FBT year ceases to be valid at the end of that FBT year if the number of car parking fringe benefits for the employer for employees covered by the election increases by more than 10% on any day in that FBT year.
Note:
This means that if the number of car parking fringe benefits increases by more than 10%, the employer will have to keep a new register in the FBT year following the year of the increase if the employer wants to use the method in this Subdivision for that following year.
39GF(4) When a register ceases to be valid - later register.A register that is valid for an FBT year ceases to be valid if there is a later valid register for that FBT year that covers the same employee.
The register must include details of the following:
(a) the date on which each car covered by subsection (4) was parked;
(b) whether the car was parked for a total that exceeds 4 hours;
(c) whether the car travelled between the place of residence of an employee covered by the election and his or her primary place of employment on that day;
(d) the place where the car was parked. 39GG(2) [When details must be entered]
The person responsible for making entries in the register must make the entry as soon as practicable after he or she knows the details required by subsection (1).
39GG(3) [Register not valid]If subsection (1) or (2) is not satisfied, the register is not valid.
39GG(4) [Car covered by provision]A car is covered by this subsection if:
(a) a car benefit relating to the car is provided on a day during the 12 week period to an employee covered by the election in respect of the employee's employment; or
(b) the car is owned by, or leased to, an employee covered by the election at any time during the 12 week period; or
(c) the car is made available by another person to an employee covered by the election at any time during the 12 week period where:
(i) the other person is not the employee's employer; and
(ii) the other person did not make the car available under an arrangement to which the employee's employer is a party.
For the purposes of this Act, a register is not valid if the register contains an entry that is false or misleading in a material particular.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Division 11 of Part III of the Act is modified by repealing the Division.]
Where, at a particular time, a person (in this section referred to as the provider ) provides property to another person (in this section referred to as the recipient ), the provision of the property shall be taken to constitute a benefit provided by the provider to the recipient at that time. SECTION 41 EXEMPT PROPERTY BENEFITS 41(1)
Where:
(a) a property benefit is provided to a current employee of an employer in respect of his or her employment; and
(b) the property is provided to, and consumed by, the employee on a working day and on business premises of:
(i) the employer; or
(ii) if the employer is a company, of the employer or of a company that is related to the employer;
the benefit is an exempt benefit.
41(2)
This section does not apply to food or drink provided to, and consumed by, an employee if the food or drink is provided under a salary packaging arrangement.
Subdivision B - Taxable value of property fringe benefits SECTION 42 TAXABLE VALUE OF IN-HOUSE PROPERTY FRINGE BENEFITS 42(1)
Subject to this Part, the taxable value of an in-house property fringe benefit in relation to an employer in relation to a year of tax is:
(aa) if the recipient's property was provided to the recipient under a salary packaging arrangement - an amount equal to the notional value of the recipient's property at the provision time; or
(ab) if paragraph (aa) does not apply and the benefit is an airline transport fringe benefit - an amount equal to 75% of the stand-by airline travel value of the benefit at the time the transport starts; or
(a) if neither paragraph (aa) nor (ab) applies and the recipient's property was manufactured, produced, processed or treated by the provider:
(i) if identical property that was manufactured, produced, processed or treated, as the case may be, by the provider was, at or about the provision time, sold by the provider in the ordinary course of business to purchasers being manufacturers, wholesalers or retailers - an amount equal to:
(A) if any of that identical property was, at or about the provision time, sold by the provider under an arm's length transaction or arm's length transactions - the lowest price at which it was sold under such a transaction; or
(B) if sub-subparagraph (A) does not apply - the lowest price at which any of that identical property could reasonably be expected to have been sold by the provider at or about the provision time under an arm's length transaction; or
(ii) if subparagraph (i) does not apply but identical property that was manufactured, produced, processed or treated, as the case may be, by the provider was, at or about the provision time, sold by the provider:
(A) in the ordinary course of business to members of the public under an arm's length transaction or arm's length transactions; andan amount equal to 75% of the lowest price at which that property was so sold to a member of the public; or
(B) in similar circumstances and subject to identical terms and conditions (other than as to price) as those that applied in relation to the provision of the recipient's property to the recipient;
(iii) in any other case - an amount equal to 75% of the notional value of the recipient's property at the provision time; or
(b) if none of the above paragraphs applies and the property was acquired by the provider - an amount equal to the lesser of:
(i) the arm's length price in respect of the acquisition of the recipient's property by the provider; or
(ii) the notional value of the recipient's property at the provision time; or
(c) in any other case - an amount equal to 75% of the notional value of the recipient's property at the provision time;
reduced by the amount of the recipient's contribution.
42(2)
In subsection (1), arm's length price , in respect of the acquisition of the recipients property by the provider, means:
(a) if the recipients property was acquired by the provider in the ordinary course of business under an arm's length transaction - the cost price of the recipients property to the provider; or
(b) in any other case - the amount that the provider could reasonably be expected to have been required to pay to acquire the recipients property under an arm's length transaction in the ordinary course of business.
SECTION 43 43 TAXABLE VALUE OF EXTERNAL PROPERTY FRINGE BENEFITS
Subject to this Part, the taxable value of an external property fringe benefit in relation to an employer in relation to a year of tax is:
(a) where the provider was the employer or an associate of the employer and the recipients property was purchased by the provider under an arm's length transaction at or about the provision time - the cost price of the recipients property to the provider;
(b) where the provider was not the employer or an associate of the employer and the employer, or an associate of the employer, incurred expenditure to the provider under an arm's length transaction in respect of the provision of the property - the amount of that expenditure; or
(c) in any other case - the notional value of the recipients property at the provision time;
reduced by the amount of the recipients contribution.
SECTION 44 REDUCTION OF TAXABLE VALUE - OTHERWISE DEDUCTIBLE RULE 44(1)Where: (a) the recipient of a property fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer; and (b) if the recipient had, at the provision time, incurred and paid unreimbursed expenditure (in this subsection called the gross expenditure ), in respect of the purchase of the recipients property, equal to the amount that, but for this subsection and Division 14 and the recipients contribution, would be the taxable value of the property fringe benefit in relation to the year of tax - a once-only deduction (in this subsection called the gross deduction ) would, or would if not for Divisions 28 and 900 of the Income Tax Assessment Act 1997, have been allowable to the recipient under that Act or the Income Tax Assessment Act 1936 in respect of the gross expenditure; and
(ba) the amount (in this subsection called the notional deduction ) calculated in accordance with the formula:
| GD − RD |
where:
GD is the gross deduction; and
RD is:
exceeds nil; and (c) except where the property fringe benefit is:
(i) an exclusive employee property benefit; or
(ia) covered by a recurring fringe benefit declaration (see section 152A); or
(ii) an extended travel property benefit; or
the recipient gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, in respect of the recipients property; and (d) where the property fringe benefit is an extended travel property benefit (other than an international aircrew property benefit) - the recipient gives to the employer, before the declaration date, a travel diary in relation to the travel undertaken by the recipient to which the fringe benefit relates; and (da) where:
(iii) a car property benefit;
(i) the property fringe benefit is a car property benefit in respect of a car held by the recipient during a period (in this section called the holding period ) in the year of tax; and
the following conditions are satisfied:
(ii) the substantiation rules set out in Division 15 have been complied with in relation to the car in relation to the holding period;
(iii) the recipient gives to the employer, before the declaration date, a car substantiation declaration for the car for the year of tax;
(e) if:
(iv) in a case where the substantiation rules require log book records or odometer records to be maintained by or on behalf of the recipient in relation to the car - the car substantiation declaration is accompanied by a copy of those documents; and
(i) paragraph (da) does not apply; and
the recipient gives a declaration to the employer, before the declaration date and in a form approved by the Commissioner, that purports to set out:
(ii) the property fringe benefit is a car property benefit in respect of a car held by the recipient during a period (the holding period ) in the year of tax;
(iii) the holding period; and
(iv) the number of whole business kilometres travelled by the car during the holding period; and
(v) the number of whole kilometres travelled by the car during the holding period;
the taxable value, but for Division 14, of the property fringe benefit in relation to the year of tax is the amount calculated in accordance with the formula:
| TV − ND |
where:
TV is the amount that, but for this subsection and Division 14, would be the taxable value of the property fringe benefit in relation to the year of tax; and
ND is:
(f) if neither paragraph (da) nor paragraph (e) applies and paragraph (k) does not apply - the notional deduction; or (g) where paragraph (da) applies and paragraph (k) does not apply - whichever of the following amounts is applicable:
(i) if it would be concluded that the amount of the recipients contribution would have been the same even if the property fringe benefit were not applied or used in producing assessable income of the recipient - the business use percentage of the amount that, but for this subsection and Division 14, would be the taxable value of the property fringe benefit in relation to the year of tax;
(h) where:
(ii) if subparagraph (i) does not apply - the business use percentage of the amount that, but for this subsection and Division 14 and the recipients contribution, would be the taxable value of the property fringe benefit in relation to the year of tax; or
(i) paragraph (e) applies; and
(ii) (Repealed by No 162 of 2015)
whichever of the following amounts is the least:
(iia) paragraph (k) does not apply;
(iii) the notional deduction;
(iv) if it would be concluded that the amount of the recipients contribution would have been the same even if the property fringe benefit were not applied or used in producing assessable income of the recipient - 33⅓% of the amount that, but for this subsection and Division 14, would be the taxable value of the property fringe benefit in relation to the year of tax;
(j) (Repealed by No 162 of 2015) (k) if, under subsection 138(3), the property fringe benefit is deemed to have been provided to the recipient only - the amount calculated in accordance with subsection (5).
(v) if subparagraph (iv) does not apply - 33⅓% of the amount that, but for this subsection and Division 14 and the recipients contribution, would be the taxable value of the property fringe benefit in relation to the year of tax; or
[ CCH Note: Legislative instruments F2024L00335 and F2024L00349 made under s 123AA of the Fringe Benefits Tax Assessment Act 1986 and effective for the FBT year ending 31 March 2025 and all subsequent years, allow an employer to which the instruments apply to accept adequate alternative records instead of the statutory evidentiary documents referred to in ss 44(1)(c) and 44(1)(d). respectively. Section 6 of each instrument sets out the adequate alternative records that can be accepted instead of the relevant statutory evidentiary document. Records can only be accepted as an alternative to the statutory evidentiary document if they are obtained and held by the employer by the employer's declaration date.]
44(2)
For the purposes of the application of this section in relation to a fringe benefit, where the recipient: (a) while undertaking travel referred to in paragraph (1)(d), engages in an activity in the course of producing assessable income of the recipient; and (b) does not make, as mentioned in the definition of travel diary in subsection 136(1), an entry relating to the activity, being an entry of the kind referred to in that definition;
the activity shall be deemed not to have been engaged in by the recipient in the course of producing assessable income.
44(3)
(Repealed by No 162 of 2015)
44(4)
(Repealed by No 162 of 2015)
44(5)
For the purposes of paragraph (1)(k) (which applies to a property fringe benefit that, under subsection 138(3), is deemed to have been provided to an employee only), the amount is calculated in accordance with the formula:
| Unadjusted ND × Employee's percentage of interest |
employee's percentage of interest
:
unadjusted ND
is the amount that would be ascertained as representing the component ND in the formula in subsection (1) if paragraph (1)(k) did not apply in relation to the property fringe benefit.
Division 12 - Residual fringe benefits Subdivision A - Residual benefits SECTION 45 45 RESIDUAL BENEFITS
A benefit is a residual benefit for the purposes of this Act if the benefit is not a benefit by virtue of a provision of Subdivision A of Divisions 2 to 11 (inclusive). SECTION 46 YEAR OF TAX IN WHICH RESIDUAL BENEFITS TAXED 46(1)
Subject to this section, a residual benefit that is provided during a period shall be deemed to have been provided in respect of each year of tax during which any part of that period occurred.
46(2)
Where: (a) a residual benefit (in this subsection referred to as the eligible benefit ), not being a residual benefit constituted by a lease or licence in respect of property, is provided on the basis that, in respect of each of a number of regular periods (in this subsection referred to as a billing period ) commencing on or after 1 July 1986 (whether or not there were any such periods before that date), a payment is to be made in respect of the provision of the benefit during the billing period; and (b) identical benefits are provided to members of the public on the same basis and in the ordinary course of a business carried on by the person providing the eligible benefit;
the following provisions have effect:
(c) the provision of the eligible benefit during each billing period shall be taken to constitute a separate benefit; (d) each such separate residual benefit shall be deemed to have been provided at the time at which the payment in respect of the billing period concerned is due and payable, and not otherwise.[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Section 46 of the Act is modified by substituting the section:
SECTION 46 CONTRIBUTION ASSESSMENT PERIOD IN WHICH RESIDUAL FRINGE BENEFITS ARE TO BE ASSESSED
]
46
A residual benefit that is provided during a period which extends over 2 or more contribution assessment periods is subject to assessment for income contribution in each of those periods.
Where:
(a) in respect of the employment of a current employee, the employer, or an associate of the employer, provides a residual benefit to the employee that consists of transport of the employee, otherwise than in an aircraft:
(i) between:
(A) the place of residence of the employee; and
(B) the place of employment of the employee or any other place from which or at which the employee performs duties of that employment; or
(ii) in a case where the place referred to in sub-subparagraph (i)(B) is in a metropolitan area - on a regular and scheduled service over a route wholly within that metropolitan area; and
(b) where the provider is the employer - the employer carries on a business of providing transport to members of the public; and
(c) where the provider is an associate of the employer - the employer and the associate each carries on a business of providing transport to members of the public; and
(d) the transport referred to in paragraph (a) is provided in the same, or substantially the same, circumstances as transport provided to members of the public in the ordinary course of carrying on a business of providing transport to members of the public; and
(e) the employee is employed in the business of providing transport to members of the public; and
(f) the benefit is not provided under a salary packaging arrangement;
the benefit is an exempt benefit.
47(1A)
Where:
(a) a person is an employee of a government body; and
(b) the person's duties of employment are performed in a police service; and
(c) the person is provided with a residual benefit consisting of the provision of travel on public transport; and
(d) the benefit is provided for the purpose of travel between:
(i) the person's place of residence; and
(ii) the person's primary place of employment;
the benefit is an exempt benefit .
47(2)
Where:
(a) a residual benefit provided to a current employee in respect of his or her employment consists of:
(i) the provision, or use, of a recreational facility; or
(ii) the care of children of the employee in a child care facility; and
(b) the recreational facility or child care facility, as the case may be, is located on business premises of:
(i) the employer; or
(ii) if the employer is a company, of the employer or of a company that is related to the employer;
the benefit is an exempt benefit.
47(3)
Where a residual benefit provided to a current employee in respect of his or her employment consists of the use of property (other than a motor vehicle) that is ordinarily located on business premises of, and is wholly or principally used directly in connection with business operations of:
(a) the employer; or
(b) if the employer is a company - the employer or a company that is related to the employer;
the benefit is an exempt benefit.
47(4)
For the purposes of subsection (3), toilets, bathroom facilities, food or drink vending machines, tea or coffee making facilities, water dispensers or other amenities (not being facilities for drinking or dining) for the use of employees of an employer shall be taken to be principally used directly in connection with business operations of the employer.
47(4A)
For the purposes of subsection (3), a building site, construction site or any similar place where a person carries on business operations shall be taken to be business premises of the person.
47(5)
Where:
(a) a residual benefit consisting of the subsistence, during a year of tax, of a lease or licence in respect of a unit of accommodation is provided to an employee of an employer in respect of his or her employment; and
(b) the unit of accommodation is for the accommodation of eligible family members and is provided solely because the duties of that employment require the employee to live away from his or her normal residence; and
(ba) the employee satisfies:
(i) sections 31C (about maintaining an Australian home) and 31D (about the first 12 months); or
(ii) section 31E (about fly-in fly-out and drive-in drive-out requirements); and
(c) the accommodation is not provided while the employee is undertaking travel in the course of performing the duties of that employment; and
(d) any of the following conditions is satisfied:
(i) subsection (7) applies in relation to the provision of transport for the employee in connection with travel in the period in the year of tax when the lease or licence subsisted, being travel between the employee's usual place of residence and the employee's usual place of employment;
(ii) if the employee satisfies sections 31C and 31D - the employee gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, purporting to set out the matters in subparagraphs 31F(1)(a)(i) to (iii);
(iii) if the employee satisfies section 31E - the employee gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, purporting to set out the matters in subparagraphs 31F(1)(b)(i) to (iii);
the benefit is an exempt benefit in relation to the year of tax.
47(6)
Where:
(a) a residual benefit consisting of the provision or use of a motor vehicle is provided in a year of tax in respect of the employment of a current employee;
(aa) the motor vehicle is not:
(i) a vehicle used for taxi travel (other than a limousine) let on hire to the provider; or
(ii) a car, not being:
(A) a panel van or utility truck; or
(B) any other road vehicle designed to carry a load of less than 1 tonne (other than a vehicle designed for the principal purpose of carrying passengers); and
(b) there was no private use of the motor vehicle during the year of tax and at a time when the benefit was provided other than:
(i) work-related travel of the employee; and
(ii) other private use of the motor vehicle by the employee or an associate of the employee, being other use that was minor, infrequent and irregular;
the benefit is an exempt benefit in relation to the year of tax.
47(6A)
Where:
(a) a residual benefit consisting of the provision or use of a motor vehicle is provided by a particular person (in this subsection called the "provider" ) in a year of tax in respect of the employment of a current employee of an employer;
(b) at all times during the year of tax when the motor vehicle was held by the provider, the motor vehicle was unregistered; and
(c) during the period in the year of tax when the motor vehicle was held by the provider, the motor vehicle was wholly or principally used directly in connection with business operations of:
(i) the employer; or
(ii) if the employer is a company - the employer or a company that is related to the employer;
the benefit is an exempt benefit in relation to the year of tax.
47(6B)
A reference in subsection (6A) to a motor vehicle held by a provider is a reference to:
(a) a motor vehicle owned by the provider;
(b) a motor vehicle leased to the provider; or
(c) a motor vehicle otherwise made available to the provider by another person.
47(7)
Where, during a period of employment with an employer:
(a) an employee's usual place of employment is:
(i) on an oil rig, or other installation, at sea; or
(ii) at a location in a State or internal Territory but not in, or adjacent to, an eligible urban area; or
(iii) at a remote location that is not in a State or internal Territory; andNote:
For the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, see section 157.
(b) the employee is provided with residential accommodation, at or near that usual place of employment, by:
(i) the employer; or
(ii) an associate of the employer; or
(iii) a person (in this subparagraph referred to as the "arranger" ) other than the employer or an associate of the employer under an arrangement between:
(A) the employer or an associate of the employer; and
(B) the arranger or another person; and
(c) the employee, on a regular basis:
(i) works for a number of days and has a number of days off; and
(ii) on completion of the working days, travels from that usual place of employment to his or her usual place of residence and, on completion of the days off, returns from his or her usual place of residence to that usual place of employment; and
(d) the employee is provided with transport on a regular basis in connection with the travel referred to in subparagraph (c)(ii) and that transport is provided by:
(i) the employer; or
(ii) an associate of the employer; or
(iii) a person (in this subparagraph referred to as the "arranger" ) other than the employer or an associate of the employer under an arrangement between:
(A) the employer or an associate of the employer; and
(B) the arranger or another person; and
(e) it would be unreasonable to expect the employee to travel on a daily basis on work days between:
(i) that usual place of employment; and
having regard to the location of those places;
(ii) the location of the employee's usual place of residence;
the residual benefit constituted by the provision of the transport referred to in paragraph (d) is an exempt benefit.
47(8)
If:
(a) a residual benefit provided in respect of the employment of an employee arose out of priority of access, for a child or children of the employee, to:
(i) a place that is an eligible child care centre for the purposes of any provision of the Child Care Act 1972; or
(ia) (Repealed by No 83 of 1999)
(ii) family day care provided before the commencement of item 1 of Schedule 10 to the A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 2) 1999; or
(iii) care outside school hours provided before the commencement of item 1 of Schedule 10 to the A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 2) 1999; or
(iv) care in school vacations provided before the commencement of item 1 of Schedule 10 to the A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 2) 1999; or
(v) an approved child care service within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999; and
(vi)-(viii) (Repealed by No 22 of 2017)
(b) in order to obtain that priority of access, the employer of the employee, or an associate of the employer, made a contribution under a program administered by the Families Department;
the residual benefit is an exempt benefit.
SECTION 47A EXEMPTION - NO-PRIVATE-USE DECLARATION 47A(1) [Exempt benefit]
A residual fringe benefit that is covered by a no-private-use declaration is an exempt benefit.
47A(2) [No-private-use declaration]An employer may make a no-private-use declaration that covers all the employer's residual fringe benefits for an FBT year that are covered by a consistently enforced policy in relation to the use of the property that is the subject of the benefit that would result in the taxable value of the benefit being nil.
47A(3) [Form of declaration]The declaration must be in a form approved in writing by the Commissioner and be made by the declaration date.
Subject to this Part, the taxable value of an in-house non-period residual fringe benefit in relation to an employer in relation to a year of tax is: (aa) if the benefit was provided to the recipient under a salary packaging arrangement - an amount equal to the notional value of the benefit at the comparison time; or (ab)
(i) in the ordinary course of business to members of the public under an arm's length transaction or arm's length transactions; and
an amount equal to 75% of the lowest price at which an identical benefit was so sold to a member of the public; or (b) in any other case - an amount equal to 75% of the notional value of the benefit at the comparison time;
(ii) in similar circumstances and subject to identical terms and conditions (other than as to price) as those that applied in relation to the provision of the recipients benefit to the recipient;
reduced by the amount of the recipients contribution.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Sections 48 and 49 of the Act are modified by repealing the sections.]
Subject to this Part, the taxable value of an in-house period residual fringe benefit in relation to a year of tax is: (aa) if the benefit was provided to the recipient under a salary packaging arrangement - an amount equal to the notional value of the benefit at the comparison time; or (ab) if paragraph (aa) does not apply and the benefit is an airline transport fringe benefit - an amount equal to 75% of the stand-by airline travel value of the benefit at the comparison time; or (a) if neither paragraph (aa) nor (ab) applies and, at or about the comparison time, identical overall benefits were provided by the provider:
(i) in the ordinary course of business to members of the public under an arm's length transaction or arm's length transactions; and
an amount equal to 75% of the lowest amount paid or payable by any such member of the public in respect of the current identical benefit in relation to an identical overall benefit so provided; or (b) in any other case - an amount equal to 75% of the notional value of the recipients current benefit;
(ii) in similar circumstances and subject to identical terms and conditions (other than as to price) as those that applied in relation to the provision of the recipients overall benefit;
reduced by the amount of the recipients contribution insofar as it relates to the recipients current benefit.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Sections 48 and 49 of the Act are modified by repealing the sections.]
Subject to this Part, the taxable value of an external non-period residual fringe benefit in relation to an employer in relation to a year of tax is: (a) where the provider was the employer or an associate of the employer and the benefit was purchased by the provider under an arm's length transaction - the amount paid or payable by the provider for the benefit; (b) where the provider was not the employer or an associate of the employer and the employer, or an associate of the employer, incurred expenditure to the provider under an arm's length transaction in respect of the provision of the benefit - the amount of that expenditure; or (c) in any other case - the notional value of the benefit at the comparison time;
reduced by the amount of the recipients contribution.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Section 50 of the Act is modified by substituting the section:
SECTION 50 VALUE OF RESIDUAL FRINGE BENEFITS
]
50
Subject to this Part, the value of a residual fringe benefit in relation to a contribution assessment period is the cost to the provider of providing the benefit, reduced by the amount of the recipient's contribution.
Subject to this Part, the taxable value of an external period residual fringe benefit in relation to an employer in relation to a year of tax is: (a) where the provider was the employer or an associate of the employer and the recipients overall benefit was purchased by the provider under an arm's length transaction - the amount paid or payable by the provider in respect of the recipients current benefit; (b) where the provider was not the employer or an associate of the employer and the employer, or an associate of the employer, incurred expenditure to the provider under an arm's length transaction in respect of the provision of the recipients current benefit - the amount of that expenditure; or (c) in any other case - the notional value of the recipients current benefit;
reduced by the amount of the recipients contribution insofar as it relates to the recipients current benefit.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Section 51 of the Act is modified by repealing the section.]
Where: (a) the recipient of a residual fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer; and (b) if the recipient had, at the comparison time, incurred and paid unreimbursed expenditure (in this subsection called the gross expenditure ), in respect of the provision of the recipients benefit, equal to the amount that, but for this subsection and Division 14 and the recipients contribution, would be the taxable value of the residual fringe benefit in relation to the year of tax - a once-only deduction (in this subsection called the gross deduction ) would, or would if not for Divisions 28 and 900 of the Income Tax Assessment Act 1997, have been allowable to the recipient under that Act or the Income Tax Assessment Act 1936 in respect of the gross expenditure; and (ba) the amount (in this subsection called the notional deduction ) calculated in accordance with the formula:
| GD − RD |
where:
GD is the gross deduction; and
RD is:
(i) if there is no recipients contribution in relation to the residual fringe benefit - nil; or
exceeds nil; and (c) except where the fringe benefit is:
(ii) if there is a recipients contribution in relation to the residual fringe benefit equal to, or calculated by reference to, an amount of consideration paid by the recipient to the provider or to the employer in respect of the provision of the recipients benefit - the amount (if any) that would, or that would but for Divisions 28 and 900 of the Income Tax Assessment Act 1997 have been allowable as a once-only deduction to the recipient under that Act or the Income Tax Assessment Act 1936 in respect of so much of that consideration as was taken into account for the purposes of section 4-15 or 8-1 of the Income Tax Assessment Act 1997, if that consideration had been incurred and paid by the recipient at the comparison time;
(i) an exclusive employee residual benefit; or
(ia) covered by a recurring fringe benefit declaration (see section 152A); or
(ii) an extended travel residual benefit; or
the recipient gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, in respect of the recipients benefit; and (d) where the fringe benefit is an extended travel residual benefit (other than an international aircrew residual benefit) - the recipient gives to the employer, before the declaration date, a travel diary in relation to the travel undertaken by the recipient to which the fringe benefit relates; and (da) where:
(iii) a car residual benefit;
(i) the fringe benefit is a car residual benefit in respect of a car held by the recipient during a period (in this section called the holding period ) in the year of tax; and
the following conditions are satisfied:
(ii) the substantiation rules set out in Division 15 have been complied with in relation to the car in relation to the holding period;
(iii) the recipient gives to the employer, before the declaration date, a car substantiation declaration for the car for the year of tax;
(e) if:
(iv) in a case where the substantiation rules require log book records or odometer records to be maintained by or on behalf of the recipient in relation to the car - the car substantiation declaration is accompanied by a copy of those documents; and
(i) paragraph (da) does not apply; and
the recipient gives a declaration to the employer, before the declaration date and in a form approved by the Commissioner, that purports to set out:
(ii) the fringe benefit is a car residual benefit in respect of a car held by the recipient during a period (the holding period ) in the year of tax;
(iii) the holding period; and
(iv) the number of whole business kilometres travelled by the car during the holding period; and
(v) the number of whole kilometres travelled by the car during the holding period;
the taxable value, but for Division 14, of the residual fringe benefit in relation to the year of tax is the amount calculated in accordance with the formula:
| TV − ND |
where:
TV is the amount that, but for this subsection and Division 14, would be the taxable value of the residual fringe benefit in relation to the year of tax; and
ND is:
(f) if neither paragraph (da) nor paragraph (e) applies and paragraph (k) does not apply - the notional deduction; or (g) where paragraph (da) applies and paragraph (k) does not apply - whichever of the following amounts is applicable:
(i) if it would be concluded that the amount of the recipients contribution would have been the same even if the residual fringe benefit were not applied or used in producing assessable income of the recipient - the business use percentage of the amount that, but for this subsection and Division 14, would be the taxable value of the residual fringe benefit in relation to the year of tax;
(h) where:
(ii) if subparagraph (i) does not apply - the business use percentage of the amount that, but for this subsection and Division 14 and the recipients contribution, would be the taxable value of the residual fringe benefit in relation to the year of tax; or
(i) paragraph (e) applies; and
(ii) (Repealed by No 162 of 2015)
whichever of the following amounts is the least:
(iia) paragraph (k) does not apply;
(iii) the notional deduction;
(iv) if it would be concluded that the amount of the recipients contribution would have been the same even if the residual fringe benefit were not applied or used in producing assessable income of the recipient - 33⅓% of the amount that, but for this subsection and Division 14, would be the taxable value of the residual fringe benefit in relation to the year of tax;
(j) (Repealed by No 162 of 2015) (k) if, under subsection 138(3), the residual fringe benefit is deemed to have been provided to the recipient only - the amount calculated in accordance with subsection (5).
(v) if subparagraph (iv) does not apply - 33⅓% of the amount that, but for this subsection and Division 14 and the recipients contribution, would be the taxable value of the residual fringe benefit in relation to the year of tax; or
[ CCH Note: Legislative instruments F2024L00335 and F2024L00336 made under s 123AA of the Fringe Benefits Tax Assessment Act 1986 (FBTAA) and effective for the FBT year ending 31 March 2025 and all subsequent years, allow an employer to which the instruments apply to accept adequate alternative records instead of the declaration referred to in s 52(1)(c). Legislative instrument F2024L00349, also made under s 123AA of the FBTAA and effective for the FBT year ending 31 March 2025 and all subsequent years, allows an employer to which the instrument applies to accept adequate alternative records instead of the travel diary referred to in s 52(1)(d). Section 6 of each instrument sets out the adequate alternative records that can be accepted instead of the relevant statutory evidentiary document. Records can only be accepted as an alternative to the statutory evidentiary document if they are obtained and held by the employer by the employer's declaration date.]
52(2)
For the purposes of the application of this section in relation to a fringe benefit, where the recipient: (a) while undertaking travel referred to in paragraph (1)(d), engages in an activity in the course of producing assessable income of the recipient; and (b) does not make, as mentioned in the definition of travel diary in subsection 136(1), an entry relating to the activity, being an entry of the kind referred to in that definition;
the activity shall be deemed not to have been engaged in by the recipient in the course of producing assessable income.
52(3)
(Repealed by No 162 of 2015)
52(4)
(Repealed by No 162 of 2015)
52(5)
For the purposes of paragraph (1)(k) (which applies to a residual fringe benefit that, under subsection 138(3), is deemed to have been provided to an employee only), the amount is calculated in accordance with the formula:
| Unadjusted ND × Employee's percentage of interest |
employee's percentage of interest
:
unadjusted ND
is the amount that would be ascertained as representing the component ND in the formula in subsection (1) if paragraph (1)(k) did not apply in relation to the residual fringe benefit.
Division 13 - Miscellaneous exempt benefits
For the purposes of this Act: (a) a car expense payment benefit; (b) a car property benefit; or (c) a car residual benefit;
in respect of a car, being a benefit that is attributable to a period when a car fringe benefit was provided, or would but for subsection 8(2) or section 8A have been provided, in relation to the car, is an exempt benefit.
53(2)
Where the provision or use of a motor vehicle would, but for subsection 47(6), be a residual fringe benefit in relation to a period in a year of tax, subsection (1) applies in relation to the motor vehicle as if: (a) the motor vehicle were a car; and (b) a car fringe benefit were provided during that period in relation to the motor vehicle.
53(3)
In this section:
car expense payment benefit
means an expense payment benefit where the recipients expenditure is a car expense;
car property benefit
means a property benefit where, if the recipient had incurred expenditure in respect of the provision of the recipients property, that expenditure would have been a car expense;
car residual benefit
means a residual benefit where, if the recipient had incurred expenditure in respect of the provision of the recipients benefit, that expenditure would have been a car expense.
SECTION 54 54 PROVISION OF FOOD OR DRINK TO BE EXEMPT BENEFIT IN CERTAIN CASES
Where:
(a) a board fringe benefit in relation to an employer is provided on a particular day;
(b) on that day, the provider of the fringe benefit also provides food or drink (not being a meal) to the recipient of the fringe benefit; and
(c) the food or drink:
(i) is provided to, and consumed by, the recipient on that day on eligible premises of the employer; and
(ii) is not provided at a party, reception or other social function;
the provision of the food or drink is an exempt benefit.
SECTION 55 55 BENEFITS PROVIDED BY CERTAIN INTERNATIONAL ORGANISATIONS TO BE EXEMPTA benefit provided in respect of the employment of an employee of an employer is an exempt benefit if:
(a) the employer is an organisation that, but for subsections 66(2) and (3), would be exempt from a liability to pay tax in respect of the benefit by virtue of the operation of the International Organisations (Privileges and Immunities) Act 1963; or
(b) the employer is an organisation established by an agreement to which Australia is a party and which obliges Australia to grant the employer an exemption from a liability to pay tax in respect of the benefit.
A benefit that, but for subsections 66(2) and (3), would be exempt from tax by virtue of the Consular Privileges and Immunities Act 1972 or the Diplomatic Privileges and Immunities Act 1967 is an exempt benefit. SECTION 57 57 EXEMPT BENEFITS - EMPLOYEES OF RELIGIOUS INSTITUTIONS
Where:
(a) the employer of an employee is a registered religious institution; and
(b) the employee is a religious practitioner; and
(c) a benefit is provided to, or to a spouse or a child of, the employee; and
(d) the benefit is not provided principally in respect of duties of the employee other than:
(i) any pastoral duties; or
(ii) any other duties or activities that are directly related to the practice, study, teaching or propagation of religious beliefs;
the benefit is an exempt benefit.
Where the employer of an employee is a registered public benevolent institution endorsed under section 123C, a benefit provided in respect of the employment of the employee is an exempt benefit.
57A(2)
Where: (a) the employer of an employee is a government body; and (b) the duties of the employment of the employee are exclusively performed in, or in connection with:
(i) a public hospital; or
(ii) a hospital carried on by a society or association that is a rebatable employer;
(iii) (Repealed by No 124 of 2013)
a benefit provided in respect of the employment of the employee is an exempt benefit.
57A(3)
A benefit provided in respect of the employment of an employee is an exempt benefit if: (a) the employer of the employee is a public hospital; or (b) the employer provides public ambulance services or services that support those services and the employee is predominantly involved in connection with the provision of those services.
57A(4)
A benefit provided in respect of the employment of an employee is an exempt benefit if the employer of the employee is a hospital carried on by a society or association that: (a) is exempt from income tax under Division 50 of the Income Tax Assessment Act 1997; and (b) is not a company referred to in paragraph 65J(5)(a) or (b); and (c) is not a registered public benevolent institution or registered health promotion charity.
57A(5)
A benefit provided in respect of the employment of an employee is an exempt benefit if: (a) the employer of the employee is a registered health promotion charity; and (b) the registered health promotion charity is endorsed under subsection 123D(1).
SECTION 58 EXEMPT BENEFITS - LIVE-IN RESIDENTIAL CARE WORKERS 58(1)
Where, during a period:
(a) the employer of an employee is:
(i) a government body; or
(ii) a registered religious institution; or
(iii) a company that is registered under the Australian Charities and Not-for-profits Commission Act 2012 and does not meet the description of the subtype of entity in column 2 of item 4 of the table in subsection 25-5(5) of that Act; or
whose activities consist of, or include, caring for elderly persons or disadvantaged persons; and
(iv) a non-profit company that is not an ACNC type of entity;
(b) the duties of the employment of the employee consist of, or consist principally of:
(i) caring for elderly persons and any children of those elderly persons who reside with those elderly persons; or
(ii) caring for disadvantaged persons and any children of those disadvantaged persons who reside with those disadvantaged persons; and
(c) in the performance of those duties, the employee lives, together with elderly persons or disadvantaged persons, in residential premises of the employer; and
(d) the fact that the person lives in those premises is directly related to the provision, in the course of the performance of the duties of the employment of the employee, of care to the elderly persons or disadvantaged persons living in those premises;
any benefit arising from the provision, during that period, of:
(e) that accommodation to the employee or to the employee and a spouse or child of the employee who resides in those premises with the employee; or
(f) residential fuel in connection with that accommodation for use by the employee or by the employee and a spouse or child of the employee; or
(g) meals provided on those premises to the employee or to a spouse or child of the employee who resides in those premises with the employee; or
(h) food or drink (other than meals) for consumption during that period by the employee or by a spouse or child of the employee who resides in those premises with the employee;
is an exempt benefit.
58(2)
In this section:
"residential premises"
means a house or hostel used exclusively for the provision of residential accommodation to:
(a) elderly persons or disadvantaged persons and children of elderly persons or disadvantaged persons;
(b) persons the duties of whose employment consist of, or consist principally of, caring for persons referred to in paragraph (a); and
(c) spouses and children of persons referred to in paragraph (b).
SECTION 58A 58A EXEMPT BENEFITS - EMPLOYMENT INTERVIEWS AND SELECTION TESTS
Where:
(a) a car benefit, an expense payment benefit, a property benefit or a residual benefit is provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer;
(b) the benefit is in respect of an employment interview or selection test; and
(c) in the case of an expense payment benefit:
(i) the benefit is not constituted by the reimbursement of the recipient, in whole or in part, in respect of an amount of a Division 28 car expense incurred by the recipient in relation to a car owned by, or leased to, the recipient, being a reimbursement calculated by reference to the distance travelled by the car; and
(ii) documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date;
the benefit is an exempt benefit in relation to the year of tax.
A benefit is an exempt benefit in relation to a year of tax if:
(a) the benefit is an expense payment benefit, or a residual benefit, provided in, or in respect of, the year of tax in respect of the employment of an employee; and
(b) the benefit is in respect of, or consists of, the engagement of a relocation consultant; and
(c) the engagement of the relocation consultant is required solely for one or more of the following reasons:
(i) the employee is required to live away from his or her usual place of residence to perform the duties of the employment mentioned in paragraph (a) (the new employment duties );
(ii) having lived away from his or her usual place of residence to perform the new employment duties, the employee is required to return there to perform them, or because the employee has ceased to perform them;
(iii) the employee is required to change his or her usual place of residence to perform those duties; and
(d) the relocation consultant is engaged to help a family member:
(i) if subparagraph (c)(i) applies - to settle, or to remain, at or near the location where the employee performs the new employment duties while living away from his or her usual place of residence; or
(ii) if subparagraph (c)(ii) applies - to settle at the location of the employee's usual place of residence; or
(iii) if subparagraph (c)(iii) applies - to settle, or to remain, at the location of the employee's new usual place of residence; and
(e) the benefit is not provided under a non-arm's length arrangement; and
(f) if the benefit is an expense payment benefit - documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date. 58AA(2) [Kinds of help]
Without limiting subsection (1), a reference in that subsection to helping a family member to settle, or to remain, at a location includes:
(a) a relocation consultant finding, or providing information to the family member about, accommodation for the family member at the location; or
(b) a relocation consultant providing information to the family member about education facilities or other community amenities and services at the location;
but does not include a reference to a relocation consultant paying expenses on behalf of a family member.
(a) either of the following benefits is provided in, or in respect of, a year of tax in respect of the employment of an employee:
(i) an expense payment benefit where the recipients expenditure is in respect of the removal or storage of household effects of the employee;
(ii) a residual benefit where the recipients benefit consists of the removal or storage of household effects of the employee;
(b) the removal or storage is required solely because:
(i) the employee is required to live away from his or her usual place of residence in order to perform the duties of that employment;
(ii) the employee, having lived away from his or her usual place of residence in order to perform the duties of that employment, is required to return to his or her usual place of residence:
(A) in order to perform those duties; or
(B) because the employee has ceased to perform those duties; or
(iii) the employee is required to change his or her usual place of residence in order to perform the duties of that employment;
(c) the removal or storage is required to enable a family member to:
(i) if subparagraph (b)(i) applies - take up residence, or to continue to reside, at or near the place where the employee performs the duties of that employment while living away from his or her usual place of residence;
(ii) if subparagraph (b)(ii) applies - take up residence at the employee's usual place of residence; or
(iii) if subparagraph (b)(iii) applies - take up residence, or to continue to reside, at the employee's new usual place of residence;
(d) if subparagraph (b)(iii) applies:
(i) the removal takes place, or the storage commences to be provided, within 12 months after the day on which the employee commenced to perform the duties of that employment at the employee's new place of employment; and
(ii) the benefit is not provided under a non-arm's length arrangement;
(e) if subparagraph (a)(i) applies - documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date; and
(f) the removal or storage was not provided in connection with travel undertaken by the employee in the course of performing the duties of that employment;
the benefit is an exempt benefit in relation to the year of tax.
58B(2) [Interpretation]For the purposes of this section:
(a) a reference to the household effects of an employee is a reference to tangible property (whether or not owned by a family member) kept primarily for the personal use of family members; and
(b) without limiting the generality of an expression used in subsection (1), the recipients expenditure shall be taken to be in respect of, and the recipients benefit shall be taken to consist of, the removal or storage of household effects if the expenditure or benefit is in respect of, or consists of, the transport, packing, unpacking or insurance of the household effects in connection with the removal or storage of the household effects.
(a) during a particular period (in this subsection called the ``former home holding period'' ), an employee of an employer, or an associate of an employee of an employer, holds:
(i) a prescribed interest in land on which:
(A) there is a building constituting or containing a dwelling;
(B) the employee or associate proposes to construct, or complete the construction of, a building constituting or containing a dwelling;
(ii) a prescribed interest in a stratum unit in relation to a dwelling; or
(iii) a proprietary right in respect of a dwelling, being a flat or home unit;
(b) the employee or associate sells, or proposes to sell, the interest or right solely because the employee is required to change his or her usual place of residence in order to perform the duties of his or her employment;
(c) the employer first notifies the employee at a time (in this subsection called the ``notice time'' ) during the former home holding period that the employee is required to perform the duties of that employment at the employee's new place of employment; and
(d) at the notice time, the employee occupied, or proposed to occupy, the dwelling, or proposed to occupy the proposed dwelling, as his or her usual place of residence;
(e) (Repealed by No 23 of 2005)
the following subsections have effect.
(a) either of the following benefits is provided in respect of that employment of the employee in, or in respect of, a year of tax:
(i) an expense payment benefit where the recipients expenditure is incidental to the sale of that interest or right;
(ii) a residual benefit where the recipients benefit is incidental to the sale of that interest or right;
(aa) the employee or associate entered into a contract for the sale of the interest or right within 2 years after the day (the new employment day ) on which the employee commenced to perform the duties of that employment at the employee's new place of employment;
(b) if, apart from this paragraph, this subsection would apply in relation to 2 or more dwellings or proposed dwellings in relation to the change in the employee's usual place of residence - the employer of the employee elects that this subsection apply in relation to only one of those dwellings or proposed dwellings;
(c) if paragraph (b) applies - the benefit relates to the dwelling or proposed dwelling in respect of which the election is made;
(d) if subparagraph (a)(i) applies - documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date; and
(e) the benefit is not provided under a non-arm's length arrangement;
the benefit is an exempt benefit in relation to the year of tax.
(a) at a particular time, the employee or an associate of the employee acquires:
(i) a prescribed interest in land on which:
(A) there is a building constituting or containing another dwelling;
(B) the employee or associate proposes to construct, or complete the construction of, a building constituting or containing another dwelling;
(ii) a prescribed interest in a stratum unit in relation to another dwelling; or
(iii) a proprietary right in respect of another dwelling, being a flat or home unit;
(b) the employee or associate acquires the interest or right solely because the employee is required to change his or her usual place of residence in order to perform the duties of that employment at the employee's new place of employment;
(c) the employee or associate entered into a contract for the acquisition of the interest or right on a day (the contract day ) within 4 years after the new employment day;
(ca) if, on the contract day, the employee or associate holds an interest or right in another dwelling in a situation where:
(i) if that interest or right were sold within 2 years after the new employment day; and
the benefit would be an exempt benefit under subsection (2) - not more than 2 years have elapsed since the new employment day;
(ii) if a benefit of a kind referred to in subsection (2) were provided in relation to that interest or right;
(d) immediately after the completion of the acquisition, the employee occupied the other dwelling, or proposed to occupy the other proposed dwelling, as his or her usual place of residence;
(e) any of the following benefits is provided in respect of that employment of the employee in, or in respect of, a year of tax:
(i) an expense payment benefit where the recipients expenditure is incidental to the acquisition of that interest or right;
(ii) a residual benefit where the recipients benefit is incidental to the acquisition of that interest or right;
(iii) an expense payment benefit where the recipients expenditure is in respect of the act of connecting or re-connecting a telephone service to the other dwelling or proposed dwelling;
(iv) a residual benefit where the recipients benefit is constituted by the act of connecting or re-connecting a telephone service to the other dwelling or proposed dwelling;
(v) an expense payment benefit where the recipients expenditure is in respect of the act of re-connecting gas or electricity to the other dwelling or proposed dwelling;
(vi) a residual benefit where the recipients benefit is constituted by the act of re-connecting gas or electricity to the other dwelling or proposed dwelling;
(f) if subparagraph (e)(iii) or (iv) applies - immediately before the change, a telephone service was provided to the unit of accommodation that was the employee's usual place of residence before the change;
(g) if subparagraph (e)(i), (iii) or (v) applies - documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date; and
(h) the benefit is not provided under a non-arm's length arrangement;
the benefit is an exempt benefit in relation to the year of tax.
An election by an employer under subsection (2) in relation to a year of tax:
(a) shall be made by notice in writing to the Commissioner; and
(b) shall be lodged with the Commissioner on or before the declaration date. 58C(5) [Contract for sale not entered into]
(a) a benefit is an exempt benefit in relation to a year of tax under subsection (3); and
(b) paragraph (3)(ca) applied to the employee; and
(c) the employee or associate does not enter into a contract for the sale of the interest or right in the other dwelling referred to in that paragraph within 2 years after the new employment day;
this Act has effect as if:
(d) a benefit equivalent to the exempt benefit were provided in respect of the employment of the employee in, or in respect of, the year of tax in which that period of 2 years expired; and
(e) that equivalent benefit were not an exempt benefit.
(a) either of the following benefits is provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer:
(i) an expense payment benefit where the recipients expenditure is in respect of the act of connecting or re-connecting a telephone service to a unit of accommodation;
(ii) a residual benefit where the recipients benefit is constituted by the act of connecting or re-connecting a telephone service to a unit of accommodation;
(b) the unit of accommodation is for the accommodation of family members;
(c) the accommodation is required solely because:
(i) the employee is required to live away from his or her usual place of residence in order to perform the duties of that employment; or
(ii) the employee is required to change his or her usual place of residence in order to perform the duties of that employment;
(d) if subparagraph (a)(i) applies - documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date; and
(e) if subparagraph (c)(ii) applies:
(i) the telephone service is connected or re-connected not later than 12 months after the day on which the employee commenced to perform the duties of that employment at the employee's new place of employment;
(ii) immediately before the change, a telephone service was provided to the unit of accommodation that was the employee's usual place of residence before the change; and
(iii) the benefit was not provided under a non-arm's length arrangement;
the benefit is an exempt benefit in relation to the year of tax.
58D(2) [Gas or electricity](a) either of the following benefits is provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer:
(i) an expense payment benefit where the recipients expenditure is in respect of the act of re-connecting gas or electricity to a unit of accommodation;
(ii) a residual benefit where the recipients benefit is constituted by the act of re-connecting gas or electricity to a unit of accommodation;
(b) the unit of accommodation is for the accommodation of family members;
(c) the accommodation is required solely because:
(i) the employee is required to live away from his or her usual place of residence in order to perform the duties of that employment; or
(ii) the employee is required to change his or her usual place of residence in order to perform the duties of that employment;
(d) if subparagraph (a)(i) applies - documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date; and
(e) if subparagraph (c)(ii) applies:
(i) the gas or electricity is re-connected not later than 12 months after the day on which the employee commenced to perform the duties of that employment at the employee's new place of employment; and
(ii) the benefit was not provided under a non-arm's length arrangement;
the benefit is an exempt benefit in relation to the year of tax.
Where:
(a) either of the following benefits (in this section called a ``household goods leasing benefit'' ) is provided in, or in respect of, a year of tax in respect of the employment of an employee:
(i) an expense payment benefit where the recipients expenditure is in respect of a lease or licence in respect of goods;
(ii) a residual benefit where the recipients benefit consists of the subsistence of a lease or licence in respect of goods;
(b) the goods are primarily for domestic use by, and in connection with accommodation for, family members;
(c) either of the following benefits is provided in, or in respect of, the year of tax to the employee in respect of that employment:
(i) an expense payment benefit where the recipients expenditure is in respect of a lease or licence in respect of that accommodation;
(ii) a residual benefit where the recipients benefit is constituted by the subsistence of a lease or licence in respect of that accommodation; and
(d) by virtue of section 21 or subsection 47(5), the benefit referred to in paragraph (c) is an exempt benefit in relation to the year of tax;
the household goods leasing benefit is an exempt benefit in relation to the year of tax.
Where:
(a) a car benefit, an expense payment benefit, a property benefit or a residual benefit is provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer;
(b) the benefit is in respect of relocation transport; and
(c) in the case of an expense payment benefit:
(i) the benefit is not constituted by the reimbursement of the recipient, in whole or in part, in respect of an amount of a Division 28 car expense incurred by the recipient in relation to a car owned by, or leased to, the recipient, being a reimbursement calculated by reference to the distance travelled by the car; and
(ii) documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date;
the benefit is an exempt benefit in relation to the year of tax.
Each of the following benefits is an exempt benefit:
(a) an expense payment benefit, where:
(i) the recipients expenditure is in respect of the provision of motor vehicle parking facilities; and
(ii) the benefit is not an eligible car parking expense payment benefit;
(b) a residual benefit where the recipients benefit consists of motor vehicle parking facilities.
58G(2)
If the employer of an employee is:
(a) a scientific institution (other than an institution carried on by a company, society or association for the purposes of profit or gain to its individual shareholders or members); or
(b) a registered charity; or
(c) (Repealed by No 169 of 2012)
(d) a public educational institution;
the following benefits provided in respect of the employment of the employee are exempt benefits:
(e) an eligible car parking expense payment benefit;
(f) a car parking benefit.
58G(3)
If:
(a) the employer of an employee is a government body; and
(b) the employee is exclusively employed in, or in connection with, a public educational institution;
the following benefits provided in respect of the employment of the employee are exempt benefits:
(c) an eligible car parking expense payment benefit;
(d) a car parking benefit.
SECTION 58GA EXEMPT BENEFITS - SMALL BUSINESS CAR PARKING 58GA(1) Exemption.
A car parking benefit provided in an FBT year in respect of the employment of an employee is an exempt benefit if:
(a) the car is not parked at a commercial parking station; and
(b) the employer of the employee is not a public company (see subsection (3)), or a subsidiary of a public company (see subsection (3)), in relation to the day on which the benefit is provided; and
(c) the employer is not a government body; and
(d) either:
(i) the sum of the employer's ordinary income and statutory income for the year of income ending most recently before the start of the FBT year is less than $10 million; or
(ii) the employer is a small business entity, or is an employer covered by subsection (1A), for the year of income ending most recently before the start ofthe FBT year.
An employer is covered by this subsection for a year of income if: (a) the employer is not a small business entity for the year of income; and (b) the employer would be a small business entity for the year of income if:
(i) each reference in Subdivision 328-C (about what is a small business entity) of the Income Tax Assessment Act 1997 to $10 million were instead a reference to $50 million; and
(ii) the reference in paragraph 328-110(5)(b) of that Act to a small business entity were instead a reference to an employer covered by this subsection.
58GA(2) New employers.
However, if an employer to which subparagraph (1)(d)(i) applies:
(a) in the case of a tax-exempt employer (see subsection (3)) - did not start to carry out operations or activities; or
(b) in any other case - did not start to carry out business operations;
until after the start of the year of income mentioned in subparagraph (1)(d)(i), then:
(c) that subparagraph does not apply; and
(d) the employer must make a reasonable estimate of the amount that would be the sum of the employer's ordinary income and statutory income for the year of income (the business start-up year ) in which the employer did start those operations or activities, or those business operations; and
(e) that estimate is to be made on the assumption that the employer had started the operations or activities, or the business operations, at the start of the business start-up year; and
(f) the benefit is an exempt benefit only if that estimate is less than $10 million.
In this section:
ordinary income
has the same meaning as in the Income Tax Assessment Act 1997.
public company
means a company covered by paragraph 103A(2)(a) of the Income Tax Assessment Act 1936, but reading the reference in that paragraph to the last day of the year of income as a reference to the day on which the benefit is provided.
small business entity
(Repealed by No 114 of 2015)
statutory income
has the same meaning as in the Income Tax Assessment Act 1997.
subsidiary of a public company
means a subsidiary of a public company within the meaning of subsection 103A(4) of the Income Tax Assessment Act 1936, but reading:
(a) a reference in section 103A of that Act to a year of income as a reference to the day on which the benefit is provided; and
(b) a reference in that section to a public company as a reference to a public company within the meaning of this section.
tax-exempt employer
means an employer all of whose income is wholly exempt from income tax.
(a) any of the following benefits is provided to an employee in respect of his or her employment:
(i) an expense payment benefit where the recipients expenditure is in respect of a newspaper or periodical;
(ii) a property benefit where the recipients property is a newspaper or periodical;
(iii) a residual benefit where the recipients benefit consists of the making available of a newspaper or periodical; and
(b) the newspaper or periodical was for use by the employee for the purpose, or for purposes that included the purpose, of gaining or producing salary or wages of the employee in respect of that employment;
the benefit is an exempt benefit.
58H(2) [Incidental purpose]In determining for the purposes of paragraph (1)(b) whether a newspaper or periodical was for use for the purpose of gaining or producing salary or wages, no regard shall be had to a purpose that is a merely incidental purpose.
(a) a benefit is provided in respect of the employment of an employee for or in respect of compensable work-related trauma suffered by the employee; and
(b) either of the following subparagraphs applies:
(i) the benefit is provided under a workers' compensation law that applies to that employment;
(ii) the benefit is not provided under a workers' compensation law but the provision of the benefit is reasonable having regard to all relevant matters including, but without limiting the generality of the foregoing, the value of the benefit and the nature and effects of the trauma;
the benefit is an exempt benefit.
58J(2) [Insurance](a) a residual benefit provided in, or in respect of, a year of tax in respect of the employment of an employee is constituted by the subsistence, during the year of tax, of a contingent right (whether arising under a contract of insurance or otherwise) to a benefit for or in respect of compensable work-related trauma suffered by the employee; and
(b) in the case of a contingent right arising under a contract of insurance - the contract of insurance does not provide for a benefit that is not for or in respect of compensable work-related trauma suffered by any employee;
the benefit is an exempt benefit in relation to the year of tax.
Where:
(a) a benefit consisting of the provision of health care is provided in respect of the employment of an employee of an employer; and
(b) the health care is provided:
(i) in an in-house health care facility of the employer; or
(ii) by a member of the staff of an in-house health care facility of the employer in the performance of his or her duties as such a member;
the benefit is an exempt benefit.
Where:
(a) a person (in this subsection called the traveller ):
(i) is provided with transport by another person; or
(ii) provides transport for himself or herself;
(b) any of the following benefits is provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer:
(i) a car benefit relating to a particular car where the application or availability of the car is in respect of the provision of the transport;
(ii) an expense payment benefit where the recipients expenditure is in respect of the provision of:
(A) the transport; or
(B) meals or accommodation for the traveller;
(iii) a property benefit where the recipients property consists of meals for the traveller;
(iv) a residual benefit where the recipients benefit consists of the provision of:
(A) the transport; or
(B) accommodation for the traveller;
(c) the transport is required solely because a person (in this subsection called the patient ) requires medical treatment;
(d) the medical treatment is provided in a particular place (in this subsection called the treatment place ) at a time during a period when the employee is, or would but for that requirement to obtain treatment or any other temporary absence be, performing the duties of that employment in another place (in this subsection called the overseas employment place ), being a place in:
(i) a foreign country;
(ii) a part of a foreign country; or
(iii) a territory, dependency or colony (however described) of a foreign country;
(e) the transport is between:
(i) a place at or near the overseas employment place; and
(ii) a place at or near the treatment place;
(f) if the patient is not the employee - the patient is a family member and lives with the employee at or near the overseas employment place;
(g) if the traveller is not the patient - either of the following conditions is satisfied:
(i) the traveller accompanies the patient because:
(A) the patient has not attained the age of 18 years and requires the traveller as an escort; or
(B) the patient requires the traveller as an escort for medical reasons;
(ii) the traveller is a family member and accompanies or visits the patient where it is customary for family members to accompany or visit patients receiving medical treatment of the same nature and duration as the medical treatment required by the patient;
(h) the meals or accommodation:
(i) are:
(A) in connection with the transport; or
(B) required solely in connection with the presence of the traveller at the treatment place for purposes related to the medical treatment of the patient; and
(ii) where sub-subparagraph (i)(B) applies and the traveller is the patient - are not provided to the patient in a hospital, clinic or similar place in connection with the medical treatment of the patient;
(j) either of the following conditions is satisfied:
(i) the treatment place was the place nearest to the overseas employment place at which medical treatment suitable for the patient could be provided;
(ii) the total cost associated with obtaining medical treatment at the treatment place was equal to, or less than, the lowest total cost associated with obtaining medical treatment at any of the places at which medical treatment suitable for the patient could have been provided; and
(k) if subparagraph (b)(ii) applies - documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date;
the benefit is an exempt benefit in relation to the year of tax.
58L(2)
In this section:
medical expenses
means payments:
(a) to a legally qualified medical practitioner, nurse or chemist, or a public or private hospital, in respect of an illness or operation; or
(b) to a legally qualified dentist for dental services or treatment or the supply, alteration or repair of artificial teeth; or
(c) to a person registered under a law of a State or Territory as a dental mechanic in respect of charges lawfully made by that person for the supply, alteration or repair of artificial teeth; or
(d) for therapeutic treatment administered by direction of a legally qualified medical practitioner; or
(e) in respect of an artificial limb (or part of a limb), artificial eye or hearing aid; or
(f) in respect of a medical or surgical appliance (not otherwise specified in this definition) prescribed by a legally qualified medical practitioner; or
(g) for:
(i) the testing of eyes or the prescribing of spectacles or contact lenses by a person legally qualified to perform those services; or
(ii) the supply of spectacles or contact lenses in accordance with any such prescription; or
(h) as remuneration of a person for services rendered by him or her as an attendant of a person who is blind or permanently confined to a bed or an invalid chair; or
(i) for the maintenance of a dog used for the guidance or assistance of, but not social therapy for, a person with a disability, being a dog that the Commissioner is satisfied is properly trained in the guidance or assistance of persons with disabilities.
medical treatment
means an act or thing where a payment in respect of the act or thing:
(a) is a medical expense; and
(b) is not a payment:
(i) to a legally qualified medical practitioner, nurse or chemist, or a public or private hospital, in respect of a cosmetic operation that is not a professional service (within the meaning of subsection 3(1) of the Health Insurance Act 1973) for which a medicare benefit is payable under Part II of that Act; or
(ii) to a legally qualified dentist for dental services that are, or dental treatment that is, solely cosmetic.
58L(3)
For the purposes of the definitions of medical expenses and medical treatment in subsection (2), a payment is taken to be made to a legally qualified medical practitioner, nurse or chemist (the qualified person ) in respect of the provision of services or treatment, or the supply of goods, if:
(a) the payment is made to an employer (not being a public or private hospital) of the qualified person, or a person with whom the qualified person has entered into a contract for services; and
(b) the payment is made in respect of the provision of those services or that treatment, or the supply of those goods, by the qualified person.
58L(4)
For the purposes of the definitions of medical expenses and medical treatment in subsection (2), a payment is taken to be made to a legally qualified dentist in respect of the provision of dental services or treatment or the supply, alteration or repair of artificial teeth if:
(a) the payment is made to an employer of the dentist, or a person with whom the dentist has entered into a contract for services; and
(b) the payment is made in respect of the provision of those services or that treatment or the supply, alteration or repair of those artificial teeth, by the dentist.
58L(5)
For the purposes of the definitions of medical expenses and medical treatment in subsection (2), a payment is taken to be made to a person (a registered dental mechanic ) registered under a law of a State or Territory as a dental mechanic in respect of charges lawfully made by the registered dental mechanic for the supply, alteration or repair of artificial teeth if:
(a) the payment is made to an employer of such a person, or a person with whom such a person has entered into a contract for services; and
(b) the charges are made in respect of the supply, alteration or repair of artificial teeth by the dental mechanic.
Where:
(a) any of the following benefits is provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer, being benefits in relation to the transport of a person (in this section called the ``traveller'' ) who is the employee or a close relative of the employee:
(i) a car benefit relating to a particular car where the application or availability of the car is in respect of the provision of the transport;
(ii) an expense payment benefit where the recipients expenditure is in respect of the provision of:
(A) the transport; or
(B) meals or accommodation for the traveller in connection with the transport;
(iii) a property benefit where the recipients property consists of meals for the traveller in connection with the transport;
(iv) a residual benefit where the recipients benefit consists of the provision of:
(A) the transport; or
(B) accommodation for the traveller in connection with the transport;
(b) the sole reason that the transport is required is:
(i) if the traveller is the employee:
(A) to enable the traveller to attend the funeral of a close relative of the traveller; or
(B) to enable the traveller to visit a close relative of the traveller in connection with a serious illness of the close relative or of the traveller; or
(ii) if the traveller is a close relative of the employee:
(A) to enable the traveller to attend the funeral of the employee;
(B) to enable the traveller to visit the employee in connection with a serious illness of the employee or of the traveller;
(C) to enable the traveller to attend the funeral of another close relative of the employee; or
(D) to enable the traveller to visit another close relative of the employee in connection with a serious illness of the other close relative or of the traveller;
(c) the travel to which the transport relates commences during a period in respect of which any ofthe following conditions is satisfied (or, in a case to which sub-subparagraph (b)(ii)(A) applies, would have been satisfied but for the employee's death):
(i) during that period, the employee is undertaking travel in the course of performing the duties of that employment;
(ii) in a case to which subparagraph (i) does not apply - the employee is required, during that period, to live away from his or her usual place of residence in order to perform the duties of that employment;
(iii) in a case to which neither subparagraph (i) nor (ii) applies - during that period, the usual place of residence of the employee is at, or the employee is performing duties of that employment at, a place that:
(A) is in a State or internal Territory; and
(B) is not at a location in, or adjacent to, an eligible urban area;
(d) in a case to which sub-subparagraph (b)(ii)(C) or (D) applies - the travel to which the transport relates commences during a period during which the traveller ordinarily resides with the employee; and
(e) if subparagraph (a)(ii) applies and the recipients expenditure is incurred after 25 May 1988 - documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date;
the benefit is an exempt benefit in relation to the year of tax.
Where any of the following benefits is provided in respect of the employment of an employee:
(a) an expense payment benefit where the recipients expenditure is in respect of:
(i) a work-related medical examination of the employee;
(ii) work-related medical screening of the employee;
(iii) work-related preventative health care of the employee;
(iv) work-related counselling of the employee or of an associate of the employee; or
(v) migrant language training of the employee or of an associate of the employee;
(b) a property benefit where the recipients property is required solely for the purposes of:
(i) a work-related medical examination of the employee;
(ii) work-related medical screening of the employee;
(iii) work-related preventative health care of the employee;
(iv) work-related counselling of the employee or of an associate of the employee; or
(v) migrant language training of the employee or of an associate of the employee;
(c) a residual benefit where the recipients benefit consists of the provision of:
(i) a work-related medical examination of the employee;
(ii) work-related medical screening of the employee;
(iii) work-related preventative health care of the employee;
(iv) work-related counselling of the employee or of an associate of the employee; or
(v) migrant language training of the employee or of an associate of the employee;
the benefit is an exempt benefit.
58M(2) [Associated benefits](a) a car benefit, an expense payment benefit, a property benefit or a residual benefit is provided in, or in respect of, a year of tax in respect ofthe employment of an employee of an employer;
(b) the benefit is associated with:
(i) a work-related medical examination of the employee;
(ii) work-related medical screening of the employee;
(iii) work-related preventative health care of the employee;
(iv) work-related counselling of the employee or of an associate of the employee; or
(v) migrant language training of the employee or of an associate of the employee; and
(c) in the case of an expense payment benefit:
(i) the benefit is not constituted by the reimbursement of the recipient, in whole or in part, in respect of an amount of a Division 28 car expense incurred by the recipient in relation to a car owned by, or leased to, the recipient, being a reimbursement calculated by reference to the distance travelled by the car; and
(ii) documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date;
the benefit is an exempt benefit in relation to the year of tax.
Where:
(a) a benefit is provided in respect of the employment of an employee of an employer;
(b) the benefit is provided solely by way of the grant of emergency assistance to the recipient; and
(c) if the benefit is:
(i) an expense payment benefit where the recipients expenditure is wholly or partly in respect of health care;
(ii) a property benefit where the recipients property is supplied in connection with the provision of health care;
(iii) a residual benefit where the recipients benefit consists of the provision of health care; or
the health care is provided:
(iv) a loan benefit constituted by the making of a loan where the purpose of the making of the loan is wholly or partly to enable the recipient to meet expenses incurred by the recipient in respect of health care;
(v) by an employee of the employer or, if the employer is a company, of the employer or of a company that is related to the employer;
(vi) on premises of the employer or, if the employer is a company, of the employer or of a company that is related to the employer; or
(vii) at or adjacent to a place where employees of the employer or, if the employer is a company, of the employer or of a company that is related to the employer perform the duties of their employment;
the benefit is an exempt benefit.
(a) a benefit (in this section called a minor benefit ) is provided in, or in respect of, a year of tax (in this section called the current year of tax ) in respect of the employment of an employee of an employer;
(b) (Repealed by No 88 of 2013)
(c) in the case of an expense payment benefit, a property benefit or a residual benefit - if the minor benefit were an expense payment fringe benefit, a property fringe benefit or a residual fringe benefit, as the case may be, in relation to the employer, the expense payment fringe benefit, the property fringe benefit or the residual fringe benefit, as the case requires, would not be an in-house fringe benefit;
(d) in the case of a tax-exempt body entertainment benefit where the provider incurs non-deductible exempt entertainment expenditure that is wholly or partly in respect of the provision of entertainment to the employee or an associate of the employee:
(i) the provision of entertainment to the employee or the associate of the employee, as the case may be:
(A) is incidental to the provision of entertainment to outsiders; and
(B) neither consists of, nor is provided in connection with, the provision of a meal (other than a meal consisting of light refreshments) to the employee or the associate of the employee, as the case may be; or
(ii) the entertainment is provided to the employee or the associate of the employee, as the case may be:
(A) on eligible premises of the employer; and
(B) solely as a means of recognising the special achievements of the employee in a matter relating to the employment of the employee;
(e) the notional taxable value of the minor benefit in relation to the current year of tax is less than $300; and
(f) having regard to:
(i) the infrequency and irregularity with which associated benefits, being benefits that are identical or similar to:
(A) the minor benefit; orhave been or can reasonably be expected to be provided;
(B) benefits provided in connection with the provision of the minor benefit;
(ii) the amount that is, or might reasonably be expected to be, the sum of the notional taxable values of the minor benefit and any associated benefits, being benefits that are identical or similar to the minor benefit, in relation to the current year of tax or any other year of tax;
(iii) the amount that is, or might reasonably be expected to be, the sum of the notional taxable values of any other associated benefits in relation to the current year of tax or any other year of tax;
(iv) the practical difficulty for the employer in determining the notional taxable values in relation to the current year of tax of:
(A) if the minor benefit is not a car benefit - the minor benefit; and
(B) if there are any associated benefits that are not car benefits - those associated benefits; and
it would be concluded that it would be unreasonable to treat the minor benefit as a fringe benefit in relation to the employer in relation to the current year of tax;
(v) the circumstances surrounding the provision of the minor benefit and any associated benefits including, but without limiting the generality of the foregoing:
(A) whether the benefit concerned was provided to assist the employee to deal with an unexpected event; and
(B) whether the benefit concerned was provided otherwise than wholly or principally by way of a reward for services rendered, or to be rendered, by the employee;
the minor benefit is an exempt benefit in relation to the current year of tax.
For the purposes of this section, a benefit is an associated benefit in relation to a minor benefit if, and only if:
(a) any of the following subparagraphs applies:
(i) the benefit is identical or similar to the minor benefit;
(ii) the benefit is provided in connection with the provision of the minor benefit;
(iii) the benefit is identical or similar to a benefit provided in connection with the provision of the minor benefit;
(b) the benefit and the minor benefit both relate to the same employment of a particular employee; and
(c) the benefit is not an exempt benefit by virtue of a provision of this Act other than this section.
If:
(a) a person makes a contribution to an approved worker entitlement fund; and
(b) the contribution is made under an industrial instrument; and
(c) the contribution is either:
(i) made for the purposes of ensuring that an obligation under the industrial instrument to make leave payments (including payments in lieu of leave) or payments when an employee ceases employment is met; or
(ii) for the reasonable administrative costs of the fund;
the contribution is an exempt benefit.
A fund is an approved worker entitlement fund if the fund:
(a) is established by or under a law of the Commonwealth, a State or a Territory for the purposeof ensuring that long service leave is paid; and
(b) is operating under that law.
Endorsed funds
58PB(2)
A fund is also an approved worker entitlement fund if:
(a) the fund is endorsed as an approved worker entitlement fund under subsection (3); or
(b) the entity that operates the fund is endorsed for the operation of the fund under subsection (3A).
58PB(3)
The Commissioner must endorse a fund as an approved worker entitlement fund if:
(a) the fund is entitled to be endorsed as an approved worker entitlement fund (see subsection (4)); and
(b) the fund has applied for the endorsement in accordance with Division 426 in Schedule 1 to the Taxation Administration Act 1953.
58PB(3A)
The Commissioner must endorse an entity for the operation of a fund as an approved worker entitlement fund if:
(a) the entity is entitled to be endorsed for the operation of the fund as an approved worker entitlement fund (see subsection (4A)); and
(b) the entity has applied for the endorsement in accordance with Division 426 in Schedule 1 to the Taxation Administration Act 1953.
58PB(4)
A fund is entitled to be endorsed as an approved worker entitlement fund if:
(a) the management of the fund (including the management of the investments of the fund) is carried out at arm's length from the contributors to the fund and their associates; and
(b) under the fund's constituting documents:
(i) no more than 5% of the total assets of the fund are to be invested in an entity controlled by a contributor or an associate of a contributor; and
(ii) the assets of the fund are not to be used to provide or facilitate any form of financial assistance, including a loan, to a contributor, a person in respect of whom contributions are made or an associate of a contributor or an associate of a person in respect of whom contributions are made; and
(c) under the fund's constituting documents, payments from contributions to the fund are to be made only for the following purposes:
(i) to pay worker entitlements to persons in respect of whom contributions are made, or to death benefits dependants (within the meaning of the Income Tax Assessment Act 1997) or legal personal representatives (within the meaning of that Act) of those persons;
(ii) to make investments to generate income from the assets of the fund;
(iii) to reimburse contributors who have paid entitlements directly to persons in respect of whom contributions are made;
(iv) to return contributions to contributors;
(v) to pay, for the benefit of a person in respect of whom contributions are made, an employment termination payment (within the meaning of the Income Tax Assessment Act 1997) into a complying superannuation fund (within the meaning of section 45 of the Superannuation Industry (Supervision) Act 1993), a complying approved deposit fund (within the meaning of section 47 of the Superannuation Industry (Supervision) Act 1993) or a retirement savings account (within the meaning of the Retirement Savings Accounts Act 1997);
(vi) to transfer contributions to another approved worker entitlement fund;
(vii) to pay the reasonable administrative expenses of the fund;
(viii) to pay amounts to a contributor's external administrator that would otherwise be payable as mentioned in subparagraph (iii) or (iv) to the contributor;
(ix) to pay interest on, or to repay, money lent to the fund; and
(d) under the fund's constituting documents, payments from the income of the fund are to be made only for the following purposes:
(i) a purpose mentioned in subparagraphs (c)(ii) to (ix);
(ii) to make payments to contributors to the fund;
(iii) to make payments to other persons where the payment is specified in subsection (5); and
(e) under the fund's constituting documents:
(i) an account must be kept for each person in respect of whom contributions to the fund are made; and
(ii) the account must be kept in a manner that enables entitlements in respect of the person to be calculated; and
(f) the fund, or the entity that operates the fund, has an ABN.
58PB(4A)
An entity is entitled to be endorsed for the operation of a fund as an approved worker entitlement fund if the fund is entitled to be endorsed as an approved worker entitlement fund.
58PB(5)
A payment made by a fund to a person in the following circumstances is specified for the purposes of subparagraph (4)(d)(iii):
(a) a contribution has been made to the fund in respect of the person; and
(b) the contribution would be an exempt benefit under section 58PA if the fund were an approved worker entitlement fund; and
(c) either:
(i) the payment is of a worker entitlement the contribution for which would be an exempt benefit under section 58PA if the fund were an approved worker entitlement fund; or
(ii) the payment is of some kind other than a worker entitlement.
(Repealed by No 41 of 2011)
(a) a long service award benefit (in this section called the "current long service award benefit" ) is provided in, or in respect of, a year of tax in respect of the employment of an employee;
(b) the current long service award benefit is in recognition of a particular recognised long service period (in this section called the "current recognised long service period" ) of the employee;
(c) if there is no other long service award benefit provided in, or in respect of, any year of tax in respect of that employment in recognition of a different recognised long service period of the employee that is shorter than the current recognised long service period - the sum of the notional taxable values of the current long service award benefit and any other long service award benefits provided in, or in respect of, any year of tax in respect of the employment of the employee in recognition of the current recognised long service period does not exceed the amount calculated in accordance with the formula:
| $1,000 + ($100 × (RLS − 15)) |
where RLS is the number of whole years in the recognised long service period of the employee that was recognised by the provision of the current long service award benefit; and
(d) if paragraph (c) does not apply - the sum of the notional taxable values of the current long service award benefit and any other long service award benefits provided in, or in respect of, any year of tax in respect of the employment of the employee in recognition of the current recognised long service period does not exceed the amount calculated in accordance with the formula:
| $100 × (RLS − ERLS) |
where:
RLS is the number of whole years in the recognised long service period of the employee that was recognised by the provision of the current long service award benefit; and
ERLS is the number of whole years in the longest recognised long service period of the employee that:
the current long service award benefit is an exempt benefit in relation to the year of tax.
Nothing in section 74 prevents the amendment of an assessment for the purpose of giving effect to this section.
Where:
(a) one or more safety award benefits are provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer; and
(b) the notional taxable value of that safety award benefit, or the sum of the notional taxable values of those safety award benefits, in relation to that year of tax, does not exceed $200;
the safety award benefit, or the safety award benefits, as the case may be, are exempt benefits in relation to that year of tax.
Where:
(a) an employee is a trainee employed under a training agreement as part of the scheme known as the Australian Traineeship System;
(b) any of the following benefits is provided in, or in respect of, a year of tax in respect of that employment of the employee:
(i) an expense payment benefit where the recipients expenditure is in respect of accommodation, or food or drink, for the employee;
(ii) a housing benefit where the housing right is in respect of accommodation for the employee;
(iii) a board benefit in respect of a meal for the employee;
(iv) a property benefit where the recipients property consists of food or drink for the employee;
(v) a residual benefit where the recipients benefit consists of the subsistence of a lease or licence in respect of a unit of accommodation for the accommodation of the employee;
(c) in a case where the benefit relates to food or drink - the food or drink is not provided at a party, reception or other social function; and
(d) either of the following conditions are satisfied:
(i) the benefit is provided pursuant to the provisions of an industrial instrument relating to the employment of the employee;
(ii) it is customary for employers in the industry in which the employee is employed to provide benefits of the same kind as the benefit provided to the recipient and to provide such benefits in similar circumstances to those that applied in relation to the provision of the benefit to the recipient;
the benefit is an exempt benefit in relation to the year of tax.
Where, during a particular period:
(a) the employer of an employee is:
(i) a registered religious institution; or
(ii) a religious practitioner of a registered religious institution; and
(b) the duties of the employment of the employee consist of, or consist principally of, rendering domestic services or personal services, or both, for:
(i) one or more religious practitioners who reside in one or more units of accommodation located on a particular parcel of land; and
(ii) any relatives of that religious practitioner, or of those religious practitioners, who reside in the unit of accommodation with the religious practitioner concerned; and
(c) the employee resides in a unit of accommodation located on the same parcel of land; and
(d) the fact that the employee resides in the unit of accommodation is directly related to the rendering, in the course of the performance of the duties of the employment of the employee, of those domestic services or of those personal services;
any benefit arising from the provision, during that period, of:
(e) that accommodation to the employee or to the employee and a spouse or child of the employee who resides in that unit of accommodation with the employee; or
(f) residential fuel in connection with that accommodation for use by the employee or by the employee and a spouse or child of the employee; or
(g) meals provided on the parcel of land to the employee or to a spouse or child of the employee who resides in that unit of accommodation with the employee; or
(h) food or drink (other than meals) for consumption, during that period, by the employee or by a spouse or child of the employee who resides in that unit of accommodation with the employee;
is an exempt benefit.
Where, during a particular period:
(a) the employer of an employee is a natural person;
(b) the duties of the employment of the employee consist of, or consist principally of:
(i) caring for one or more elderly persons and any child or children of that elderly person, or those elderly persons, who reside with the elderly person concerned; or
(ii) caring for one or more disadvantaged persons and any child or children of that disadvantaged person, or those disadvantaged persons, who reside with the disadvantaged person concerned;
(c) in the performance of those duties, the employee resides in the same unit of accommodation as the person or persons being cared for; and
(d) the fact that the employee resides in that unit of accommodation is directly related to the provision, in the course of the performance of the duties of the employment of the employee, of care to the elderly person or elderly persons or to the disadvantaged person or disadvantaged persons;
any benefit arising from the provision, during that period, of:
(e) that accommodation to the employee or to the employee and a spouse or child of the employee who resides in that unit of accommodation with the employee;
(f) residential fuel in connection with that accommodation for use by the employee or by the employee and a spouse or child of the employee;
(g) meals provided in that unit of accommodation to the employee or to a spouse or child of the employee who resides in that unit of accommodation with the employee; or
(h) food or drink (other than meals) for consumption, during that period, by the employee or by a spouse or child of the employee who resides in that unit of accommodation with the employee;
is an exempt benefit.
Where:
(a) the employer of an employee is:
(i) a natural person; or
(ii) a registered religious institution; and
(b) if the employer is a natural person - the duties of the employment of the employee consist of, or consist principally of, rendering domestic services for the employer or one or more relatives of the employer at a place of residence of the employer; and
(c) if the employer is a registered religious institution - the duties of the employment of the employee consist of, or consist principally of, rendering domestic services for one or more religious practitioners or one or more relatives of religious practitioners at a place of residence of the religious practitioner concerned; and
(d) the employee is not provided with residential accommodation in respect of that employment;
any benefit arising from the provision of food or drink consumed by the employee at that place of residence at or about the time the employee was engaged in the performance of the duties of that employment is an exempt benefit.
Note:
Section 960-255 of the Income Tax Assessment Act 1997 may be relevant to determining who a person's relatives are for the purposes of paragraphs (b) and (c).
(a) a benefit is provided in respect of the employment of an employee; and
(b) the benefit consists of the making of a deposit, or purported deposit, under the Small Superannuation Accounts Act 1995. 58W(2) Exempt benefit.
The benefit is an exempt benefit.
58W(3) Definition.In this section:
"deposit"
has the same meaning as in the Small Superannuation Accounts Act 1995.
Any of the following benefits provided by an employer to an employee of the employer in respect of the employee's employment is an exempt benefit:
(a) an expense payment benefit where the recipients expenditure is in respect of an eligible work related item;
(b) a property benefit where the recipients property is an eligible work related item;
(c) a residual benefit where the recipients benefit consists of the making available of an eligible work related item.
58X(2)
Subject to subsection (3), each of the following is an eligible work related item if it is primarily for use in the employee's employment:
(a) a portable electronic device;
(b) an item of computer software;
(c) an item of protective clothing;
(d) a briefcase;
(e) a tool of trade.
58X(3)
An item (the later item ) listed in subsection (2) is not an eligible work related item if, earlier in the FBT year, an expense payment benefit or a property benefit of the employee has arisen in relation to another item that has substantially identical functions to the later item.
58X(4)
However, subsection (3) does not apply if:
(a) the later item is a replacement for the other item; or
(b) the later item is a portable electronic device, and the employer is a small business entity, or is an employer covered by subsection (5), for:
(i) the year of income starting most recently after the start of the FBT year; or
(ii) the year of income ending most recently after the start of the FBT year.
Example:
For paragraph (a), the later item would be a replacement for the other item if the other item were lost or destroyed, or needed replacing because of developments in technology.
58X(5)
An employer is covered by this subsection for a year of income if: (a) the employer is not a small business entity for the year of income; and (b) the employer would be a small business entity for the year of income if:
(i) each reference in Subdivision 328-C (about what is a small business entity) of the Income Tax Assessment Act 1997 to $10 million were instead a reference to $50 million; and
(ii) the reference in paragraph 328-110(5)(b) of that Act to a small business entity were instead a reference to an employer covered by this subsection.
Either of the following benefits provided by an employer to an employee of the employer in respect of the employee's employment is an exempt benefit:
(a) an expense payment benefit where the recipients expenditure is in respect of an eligible membership or subscription;
(b) a property benefit where the recipients property is an eligible membership or subscription. 58Y(2) [Eligible membership or subscription]
Each of the following is an eligible membership or subscription :
(a) a subscription to a trade or professional journal;
(b) an entitlement to use a corporate credit card;
(c) an entitlement to use an airport lounge membership.
Any benefit arising from taxi travel (otherwise than by limousine) by an employee is an exempt benefit if the travel is a single taxi trip beginning or ending at the employee's place of work.
58Z(2)
Any benefit arising from taxi travel (otherwise than by limousine) by an employee is an exempt benefit if the travel:
(a) is as a result of sickness of, or injury to, the employee; and
(b) is the whole or a part of the journey directly between any of the following:
(i) the employee's place of work; or
(ii) the employee's place of residence; or
(iii) any other place that it is necessary, or appropriate, for the employee to go as a result of the sickness or injury.
(Repealed by No 52 of 2000)
(a) a benefit is provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer; and
(b) the benefit is in respect of participation in an approved student exchange program by the employee or an associate of the employee; and
(c) the employer or an associate of the employer did not select, or take part in the selection of, the employee or associate as a participant in the program;
the benefit is an exempt benefit in relation to the year of tax.
58ZB(2) [Interpretation]An approved student exchange program is a student exchange program run by a body that is registered as a student exchange body with the relevant State or Territory body in accordance with the National Guidelines for Student Exchange that are published by the National Co-ordinating Committee for International Secondary Student Exchange.
A housing benefit that is a remote area housing benefit is an exempt benefit.
58ZC(2) What constitutes remote area housing benefit.A housing benefit in relation to an employer for a year of tax and for a unit of accommodation, being a benefit provided to an employee of the employer in respect of the employee's employment, is a remote area housing benefit if:
(a) during the whole of the tenancy period, the unit of accommodation was located in a State or internal Territory and was not at a location in, or adjacent to, an eligible urban area; and
(b) during the whole of the tenancy period, the recipient was a current employee of the employer and the usual place of employment of the recipient was not at a location in, or adjacent to, an eligible urban area; and
(c) (Repealed by No 77 of 2005)
(d) it would be concluded that it was necessary for the employer, during the year of tax, to provide, or to arrange for the provision of, residential accommodation for employees of the employer because:
(i) the nature of the employer's business was such that employees of the employer were liable to be frequently required to change their places of residence; or
(ii) there was not, at or near the place or places at which the employees of the employer were employed, sufficient suitable residential accommodation for those employees (other than residential accommodation provided by or on behalf of the employer); or
(iii) it is customary for employers in the industry in which the recipient was employed during the tenancy period to provide residential accommodation for their employees free of charge or for a rent or other consideration that is less than the market value of the right to occupy or use the accommodation concerned; and
(e) the recipients overall housing right was not granted to the recipient under:
(i) a non-arm's length arrangement; or
(ii) an arrangement that was entered into by any of the parties to the arrangement for the purpose, or for purposes that included the purpose, of enabling the employer to obtain the benefit of the application of this section.
For the purposes of subsection (2):
(a) if a unit of accommodation:
(i) is at a location in, or adjacent to, an eligible urban area; and
the Commissioner may, if the Commissioner considers that it is appropriate to do so having regard to all the circumstances, treat the first-mentioned unit of accommodation as not being at a location in, or adjacent to, an eligible urban area; and
(ii) is adjacent to, or in close proximity to, another unit of accommodation that is occupied or used and is not at a location in, or adjacent to, an eligible urban area;
(b) if the usual place of employment of a person:
(i) is at a location in, or adjacent to, an eligible urban area; and
the Commissioner may, if the Commissioner considers that it is appropriate to do so having regard to all the circumstances, treat that place of employment of the first-mentioned person as not being at a location in, or adjacent to, an eligible urban area.
(ii) is adjacent to, or in close proximity to, another location at which people are employed, being another location that is not in, or adjacent to, an eligible urban area;
If:
(a) an employer is carrying on a business of primary production for the purposes of the Income Tax Assessment Act 1997; and
(b) the business is carried on at a location in a State or internal Territory that is not in, or adjacent to, an eligible urban area; and
(c) a benefit consisting of a meal that is ready for consumption is provided on a working day to a person; and
(d) the benefit is not, or does not include, the provision of meal entertainment as defined in section 37AD; and
(e) the benefit is:
(i) a board benefit; or
(ii) a property benefit; or
(iii) an expense payment benefit; or
(iv) a residual benefit; and
(f) the person to whom the benefit is provided is:
(i) an employee of the employer, being an employee who is employed in the business and is primarily so employed at a location referred to in paragraph (b); or
(ii) if the benefit is a board benefit - an associate of an employee referred to in subparagraph (i); and
(g) the benefit is provided in respect of the employment of an employee referred to in subparagraph (f)(i);
the benefit is an exempt benefit.
Subject to subsection (2), a benefit is an exempt benefit in relation to a year of tax if: (a) the benefit is provided in, or in respect of, the year of tax in respect of education or training undertaken by an employee of an employer; and (b) the employee is redundant; and (c) the employer has complied with any obligation under the Fair Work Act 2009 that applies in relation to the redundancy; and (d) the education or training is for the primary purpose of enabling the employee to gain or produce salary or wages in respect of any employment to which the education or training relates.
58ZE(2)
For the purposes of paragraph (1)(b), an employee is redundant if the employee's employer no longer requires, or reasonably expects to no longer require, the employee's job to be performed by anyone because of changes in the operational requirements of the employer's business or undertaking.
58ZE(3)
This section does not apply to a benefit provided to an employee of an employer if: (a) the benefit is provided under a salary packaging arrangement; or (b) the benefit is a payment or other amount covered by subsection 26-20(1) of the Income Tax Assessment Act 1997; or (c) the education or training in respect of which the benefit is provided is undertaken as part of a primary course (within the meaning of the A New Tax System (Goods and Services Tax) Act 1999) or a secondary course (within the meaning of that Act); or (d) if the employer is an individual - the employee is a relative of the employer; or (e) if the employer is a partnership - the employee is a relative of a partner in the partnership; or (f) if the employer is a company (other than a widely held company within the meaning of the Income Tax Assessment Act 1997) - the employee is:
(i) a shareholder in, or a relative of a shareholder in, the company; or
(ii) a director of, or a relative of a director of, the company.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Divisions 14, 14A and 14B of Part III of the Act are modified by repealing the Divisions.]
(a) residential fuel is for use:
(i) in connection with the recipients unit of accommodation; and
in relation to a remote area housing benefit, in relation to an employer in relation to a year of tax; and
(ii) during the subsistence of the recipients overall housing right;
(b) any of the following conditions are satisfied:
(i) the recipients expenditure in relation to an expense payment fringe benefit in relation to the employer in relation to the year of tax or a subsequent year of tax is in respect of the supply of that residential fuel;
(ii) the recipients property in relation to a property fringe benefit in relation to the employer in relation to the year of tax is that residential fuel;
(iii) the recipients benefit in relation to a residual fringe benefit in relation to the employer in relation to the year of tax is the benefit of the consumption of that residentialfuel;
the amount that, apart from this subsection and section 62, would be the taxable value of the fringe benefit referred to in paragraph (b) in relation to the year of tax is reduced by 50%.
(a) any of the following conditions are satisfied:
(i) the recipients expenditure in relation to an expense payment fringe benefit in relation to an employer in relation to an employee in relation to a year of tax is in respect of the supply of residential fuel;
(ii) the recipients property in relation to a property fringe benefit in relation to an employer in relation to an employee in relation to a year of tax is residential fuel;
(iii) the recipients benefit in relation to a residual fringe benefit in relation to an employer in relation to an employee in relation to a year of tax is the benefit of the consumption of residential fuel;
(b) the residential fuel is for use in connection with a dwelling during a period in the year of tax or, in a case to which subparagraph (a)(i) applies, a preceding year of tax, when the recipient of the fringe benefit occupied or used the dwelling as his or her usual place of residence and was under an obligation to repay the whole or a part of a remote area housing loan connected with the dwelling; and
(c) the fringe benefit was not provided under:
(i) a non-arm's length arrangement; or
(ii) an arrangement that was entered into by any of the parties to the arrangement for the purpose, or for purposes that included the purpose, of enabling the employer to obtain the benefit of the application of this section;
the amount that, but for this subsection and section 62, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by 50%.
(a) any of the following conditions are satisfied:
(i) the recipients expenditure in relation to an expense payment fringe benefit in relation to an employer in relation to an employee in relation to a year of tax is in respect of the supply of residential fuel;
(ii) the recipients property in relation to a property fringe benefit in relation to an employer in relation to an employee in relation to a year of tax is residential fuel;
(iii) the recipients benefit in relation to a residual fringe benefit in relation to an employer in relation to an employee in relation to a year of tax is the benefit of the consumption of residential fuel;
(b) the residential fuel is for use in connection with a unit of accommodation during a period in the year of tax or, in a case to which subparagraph (a)(i) applies, in a preceding year of tax, during which:
(i) the recipient of the fringe benefit occupied or used the unit of accommodation as his or her usual place of residence; and
(ii) remote area housing rent connected with the unit of accommodation accrued; and
(c) the fringe benefit was not provided under:
(i) a non-arm's length arrangement; or
(ii) an arrangement that was entered into by any of the parties to the arrangement for the purpose, or for purposes that included the purpose, of enabling the employer to obtain the benefit of the application of this section;
the amount that, but for this subsection and section 62, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by 50%.
(a) the recipient of a loan fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer;
(b) the loan is a remote area housing loan connected with a dwelling; and
(c) the recipient occupied or used the dwelling as his or her usual place of residence during a period in the year of tax (in this section referred to as the ``occupation period'' ) during which the recipient was under an obligation to repay the whole or a part of the loan;
the amount that, but for this subsection, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by 50% of so much of that amount as relates to the occupation period.
(a) the recipient of an expense payment fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer;
(b) the recipients expenditure is in respect of interest in respect of a remote area housing loan connected with a dwelling;
(c) the recipient occupied or used the dwelling as his or her usual place of residence during a period (in this section referred to as the ``occupation period'' ) during which the interest accrued; and
(d) the fringe benefit was not provided under:
(i) a non-arm's length arrangement; or
(ii) an arrangement that was entered into by any of the parties to the arrangement for the purpose, or for purposes that included the purpose, of enabling the employer to obtain the benefit of the application of this section;
the amount that, but for this subsection, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by 50% of so much of that amount as relates to the occupation period.
(a) the recipient of an expense payment fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer;
(b) the recipients expenditure is in respect of remote area housing rent connected with a unit of accommodation;
(c) the recipient occupied or used the unit of accommodation as his or her usual place of residence during a period (in this subsection called the ``occupation period'' ) during which the rent accrued; and
(d) the fringe benefit was not provided under:
(i) a non-arm's length arrangement; or
(ii) an arrangement that was entered into by any of the parties to the arrangement for the purpose, or for purposes that included the purpose, of enabling the employer to obtain the benefit of the application of this section;
the amount that, but for this subsection, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by 50% of so much of the recipients expenditure as relates to the occupation period.
(a) the recipient of a property fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer; and
(b) the recipients property is remote area residential property;
the amount that, but for this subsection, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by 50%.
(a) the recipient of an expense payment fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer; and
(b) the recipients expenditure is in respect of remote area residential property;
the amount that, but for this subsection, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by 50%.
(a) the recipient of a property fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer; and
(b) the recipients property is a remote area residential property option fee;
the amount that, but for this subsection, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by 50%.
(a) the recipient of a property fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer; and
(b) the recipients property is remote area residential property repurchase consideration;
the amount that, but for this subsection, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by 50%.
(a) subsection (6) applies to a property fringe benefit; and
(b) the amount paid by the provider of the fringe benefit by way of consideration for the purchase of the estate or interest concerned exceeds both:
(i) the market value of the estate or interest at the time of the purchase; and
(ii) the guideline price of the estate or interest at the time of the purchase;
a reference in subsection (6) to the taxable value of the fringe benefit is a reference to so much of the taxable value as is attributable to the amount of the guideline price.
In this section:
"index number"
, in relation to a quarter, means the All Groups Consumer Price Index number, being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of that quarter.
60AA(2)
Subject to subsection (3), if at any time, whether before or after the commencement of this section, the Australian Statistician has published or publishes an index number in respect of a quarter in substitution for an index number previously published by the Australian Statistician in respect of that quarter, the publication of the later index number shall be disregarded for the purposes of this section.
60AA(3)
If at any time, whether before or after the commencement of this section, the Australian Statistician has changed or changes the index reference period for the Consumer Price Index, then, for the purposes of the application of this section after the change took place or takes place, regard shall be had only to index numbers published in terms of the new index reference period.
60AA(4)
A reference in subsection 60(7) to the guideline price of an estate or interest in land is a reference to:
(a) if the factor ascertained in accordance with subsections (5) and (6) in relation to the market value of the estate or interest as at the time the estate or interest was acquired by the employee is greater than 1 - the market value as at that time multiplied by that factor; or
(b) in any other case - the market value as at that time.
60AA(5)
The factor to be ascertained for the purposes of subsection (4) in relation to the market value of the estate or interest in land as at the time of the acquisition of the estate or interest by the employee is the number (calculated to 3 decimal places) ascertained by dividing the index number in respect of the quarter of the year in which the employee sold the estate or interest to the provider by the index number in respect of the quarter of the year in which the estate or interest was acquired by the employee.
60AA(6)
Where the factor ascertained in accordance with subsection (5) would, if it were calculated to 4 decimal places, end with a number greater than 4, that factor shall be taken to be the factor calculated to 3 decimal places in accordance with that subsection and increased by 0.001.
Where one or more remote area holiday transport fringe benefits in relation to an employer in relation to a year of tax relate to a particular employee of the employer and to a particular holiday for a particular family member, the amount (in this subsection called the "gross taxable value" ) that, but for this subsection and section 62, would be: (a) so much of the taxable value of that fringe benefit as is attributable to transport, meals or accommodation in relation to the holiday for the family member; or (b) so much of the sum of the taxable values of those fringe benefits as is attributable to transport, meals or accommodation in relation to the holiday for the family member;
as the case requires, in relation to that year of tax, shall be reduced by:
(c) 50% of the gross taxable value; or (d) 50% of the benchmark travel amount in relation to that fringe benefit, or in relation to those fringe benefits, in relation to the holiday for the family member;whichever is the less.
60A(2)
Subsection (1) does not apply in relation to a remote area holiday transport fringe benefit unless: (a) subsection 143(3) applies to the fringe benefit; and (b) if the fringe benefit is an expense payment fringe benefit:
(i) in the case of an expense payment fringe benefit where:
(A) the expense payment fringe benefit is constituted by the reimbursement of the recipient, in whole or in part, in respect of an amount of a Division 28 car expense incurred by the recipient in relation to a car owned by, or leased to, the recipient; andthe recipient gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, in respect of the recipients expenditure; or
(B) the reimbursement is calculated by reference to the distance travelled by the car;
(ii) in the case of an expense payment fringe benefit where subparagraph (i) does not apply:
(A) documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date; or
(B) the recipient gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, in respect of the recipients expenditure.
[ CCH Note: Legislative Instrument F2024L00351, made under s 123AA of the Fringe Benefits Tax Assessment Act 1986 and effective for the FBT year ending 31 March 2025 and all subsequent years, allows an employer to which the instrument applies to accept adequate alternative records instead of a declaration referred to in s 60A(2)(b)(i). Section 6 of the instrument sets out adequate alternative records that can be accepted instead of a relevant employee declaration. Records can only be accepted as an alternative to the declaration if they are obtained and held by the employer by the employer's declaration date.]
60A(3)
Where subsection (1) applies, in relation to 2 or more years of tax, in relation to 2 or more fringe benefits relating to a particular holiday for a particular family member, subsection (1) has effect, in relation to each of those years of tax, as if the reference in paragraph (1)(d) to the benchmark travel amount in relation to that fringe benefit, or those fringe benefits, in relation to the holiday for the family member were a reference to the amount calculated in accordance with the formula:
| BTA | × |
TV
TTV |
where:
BTA is the amount that, but for this subsection, would be the benchmark travel amount in relation to that fringe benefit, or in relation to those fringe benefits, in relation to the holiday for the family member;
TV is the amount that, but for this section and section 62, would be:
TTV is the amount that, but for this section and section 62, would be so much of the sum of the taxable values, in relation to all of those years of tax, of all of those fringe benefits as is attributable to transport, meals or accommodation in relation to the holiday for the family member.
60A(4)
Where:
(a) subparagraph (2)(b)(i) applies to an expense payment fringe benefit; and
(b) the amount of the reimbursement concerned exceeds the reimbursement (in this subsection called the "statutory reimbursement" ) that would have been paid if it had been calculated on the basis of the sum of the following rates:
(i) the basic car rate;
(ii) where 2 or more family members travelled in the car when it provided the transport by virtue of which the expense payment fringe benefit is a remote area holiday transport fringe benefit - the supplementary car rate;
a reference in subsection (1) or (3) of this section to the taxable value of the fringe benefit is a reference to so much of the taxable value as is attributable to the amount of the statutory reimbursement.
60A(5)
Where: (a) a remote area holiday transport fringe benefit in relation to an employee consists of the provision of an allowance to the spouse or a child of the employee; and (b) the whole or a part of the allowance has been expended by the recipient in obtaining the transport, meals or accommodation in respect of which the allowance was paid;
this section applies in relation to the fringe benefit as follows:
(c) the fringe benefit shall be treated as if it were an expense payment fringe benefit; (d) the amount expended as mentioned in paragraph (b) shall be treated as if it were the recipients expenditure; (e) so much of the allowance as does not exceed the recipients expenditure shall be treated as if it were a reimbursement of the recipients expenditure.SECTION 61 REDUCTION OF TAXABLE VALUE - REMOTE AREA HOLIDAY TRANSPORT FRINGE BENEFITS NOT SUBJECT TO CEILING 61(1A)
This section does not apply in relation to a fringe benefit in respect of remote area holiday transport if subsection 143(3) applies in relation to the fringe benefit.
61(1)
Where: (a) the recipients expenditure in relation to an expense payment fringe benefit in relation to a year of tax is in respect of remote area holiday transport;
(b) (Omitted by No 139 of 1987) (c) in a case where:
(i) the expense payment fringe benefit is constituted by the reimbursement of the recipient, in whole or in part, in respect of an amount of a Division 28 car expense incurred by the recipient in relation to a car owned by, or leased to, the recipient; and
the recipient gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, in respect of the recipients expenditure; and (d) if paragraph (c) does not apply:
(ii) the reimbursement is calculated by reference to the distance travelled by the car;
(i) documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date; or
(ii) the recipient gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, in respect of the recipients expenditure;
the amount that, but for this subsection, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by:
(e) where paragraph (c) does not apply - 50%; and (f) where paragraph (c) applies - 50% of so much of the amount of the reimbursement as does not exceed the reimbursement that would have been paid if it had been calculated on the basis of the sum of the following rates:
(i) the basic car rate;
(ii) where 2 or more family members travelled in the car when it provided the transport by virtue of which the recipients expenditure is in respect of remote area holiday transport - the supplementary car rate.
[ CCH Note: Legislative Instrument F2024L00351, made under s 123AA of the Fringe Benefits Tax Assessment Act 1986 and effective for the FBT year ending 31 March 2025 and all subsequent years, allows an employer to which the instrument applies to accept adequate alternative records instead of a declaration referred to in s 61(1)(c). Section 6 of the instrument sets out adequate alternative records that can be accepted instead of a relevant employee declaration. Records can only be accepted as an alternative to the declaration if they are obtained and held by the employer by the employer's declaration date.]
61(1AA)
Where the recipients property in relation to a property fringe benefit in relation to a year of tax is in respect of remote area holiday transport, the amount that, but for this subsection and section 62, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by 50%.
61(2)
Where the recipients benefit in relation to a residual fringe benefit in relation to a year of tax is in respect of remote area holiday transport, the amount that, but for this subsection and section 62, would be the taxable value of that fringe benefit in relation to the year of tax shall be reduced by 50%.
61(3)
Where: (a) a remote area holiday transport fringe benefit in relation to an employee consists of the provision of an allowance to the spouse or a child of the employee; and (b) the whole or a part of the allowance has been expended by the recipient in obtaining the transport, meals or accommodation in respect of which the allowance was paid;
this section applies in relation to the fringe benefit as follows:
(c) the fringe benefit shall be treated as if it were an expense payment fringe benefit; (d) the amount expended as mentioned in paragraph (b) shall be treated as if it were the recipients expenditure; (e) so much of the allowance as does not exceed the recipients expenditure shall be treated as if it were a reimbursement of the recipients expenditure.SECTION 61A REDUCTION OF TAXABLE VALUE - OVERSEAS EMPLOYMENT HOLIDAY TRANSPORT 61A(1)
Where one or more fringe benefits, being fringe benefits in respect of overseas employment holiday transport, in relation to an employer in relation to a year of tax relate to a particular employee of the employer, the amount (in this subsection called the "gross taxable value" ) that, but for this subsection and section 62, would be: (a) so much of the taxable value of that fringe benefit as is attributable to transport, meals or accommodation for a particular family member; or (b) so much of the sum of the taxable values of those fringe benefits as is attributable to transport, meals or accommodation for a particular family member;
as the case requires, in relation to that year of tax, shall be reduced by:
(c) 50% of the gross taxable value; or (d) 50% of the benchmark travel amount in relation to that fringe benefit in relation to the family member or 50% of the greatest benchmark travel amount in relation to those fringe benefits in relation to the family member, as the case requires;whichever is the less.
61A(2)
Subsection (1) does not apply in relation to a fringe benefit in respect of overseas employment holiday transport, being an expense payment fringe benefit, unless: (a) in the case of an expense payment fringe benefit where:
(i) the expense payment fringe benefit is constituted by the reimbursement of the recipient, in whole or in part, in respect of an amount of a Division 28 car expense incurred by the recipient in relation to a car owned by, or leased to, the recipient; and
the recipient gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, purporting to set outthe number of whole kilometres travelled by the car in providing transport by virtue of which the recipients expenditure is in respect of overseas employment holiday transport; or
(ii) the reimbursement is calculated by reference to the distance travelled by the car;
(iii) (Repealed by No 69 of 2023)
(b) in the case of an expense payment fringe benefit where paragraph (a) does not apply - documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date.
(iv) (Repealed by No 69 of 2023)
[ CCH Note: Legislative Instrument F2024L00331, made under s 123AA of the Fringe Benefits Tax Assessment Act 1986 and effective for the FBT year ending 31 March 2025 and all subsequent years, allows an employer to which the instrument applies to accept adequate alternative records instead of a declaration referred to in s 61A(2)(a). Section 6 of the instrument sets out adequate alternative records that can be accepted instead of a relevant employee declaration. Records can only be accepted as an alternative to the declaration if they are obtained and held by the employer by the employer's declaration date.]
61A(3)
Where: (a) subsection (1) applies in relation to one or more fringe benefits (in this subsection called the "overseas holiday transport fringe benefits" ) in relation to an employer in relation to a year of tax, being fringe benefits that relate to a particular employee of the employer; (b) one or more of the overseas holiday transport fringe benefits are home country fringe benefits in relation to a particular holiday or holidays for a particular family member; (c) if the home country fringe benefit, or home country fringe benefits, referred to in paragraph (b) relate to only one holiday for the family member - the home country holiday amount in relation to the holiday in relation to the family member exceeds the benchmark travel amount, or the greatest benchmark travel amount, as the case requires, that, apart from this subsection, would be applicable under paragraph (1)(d) in relation to the overseas holiday transport fringe benefits in relation to the family member; and (d) if the home country fringe benefit, or home country fringe benefits, referred to in paragraph (b) relate to 2 or more holidays for the family member - the greatest of the home country holiday amounts in relation to the holidays in relation to the family member exceeds the benchmark travel amount, or the greatest benchmark travel amount, as the case requires, that, apart from this subsection, would be applicable under paragraph (1)(d) in relation to the overseas holiday transport fringe benefits in relation to the family member;
the benchmark travel amount, or the greatest benchmark travel amount, as the case requires, that, apart from this subsection, would be applicable under paragraph (1)(d) in relation to the overseas holiday transport fringe benefits in relation to the family member shall be increased by the amount of the excess referred to in whichever of paragraph (c) or (d) of this subsection is applicable.
61A(4)
For the purposes of subsection (3), where the whole or a part (which whole or part is in this subsection called the "attributable portion" ) of the amount that, but for subsection (1) and section 62, would be the taxable value, or of the sum of the taxable values, in relation to the year of tax, of one or more home country fringe benefits in relation to a particular holiday for a particular family member is attributable to transport, meals or accommodation in relation to the holiday for the family member, the home country holiday amount, in relation to the holiday, in relation to the family member, is an amount equal to the attributable portion.
61A(5)
Where: (a) paragraph (2)(a) applies to an expense payment fringe benefit; and (b) the amount of the reimbursement concerned exceeds the reimbursement (in this subsection called the "statutory reimbursement" ) that would have been paid if it had been calculated on the basis of the sum of the following rates:
(i) the basic car rate;
(ii) where 2 or more family members travelled in the car when it provided the transport by virtue of which the expense payment fringe benefit is in respect of overseas employment holiday transport - the supplementary car rate;
a reference in subsection (1) or (4) of this section to the taxable value of the fringe benefit is a reference to so much of the taxable value as is attributable to the amount of the statutory reimbursement.
SECTION 61B 61B REDUCTION OF TAXABLE VALUE OF CERTAIN EXPENSE PAYMENT FRINGE BENEFITS IN RESPECT OF RELOCATION TRANSPORT
Where: (a) an expense payment fringe benefit in respect of relocation transport is provided in a year of tax to an employee of an employer, or to an associate of the employee, in respect of the employment of the employee; and (b) the fringe benefit is constituted by the reimbursement of the recipient, in whole or in part, in respect of an amount of a Division 28 car expense incurred by the recipient in relation to a car owned by, or leased to, the recipient, being a reimbursement calculated by reference to the distance travelled by the car; and (c) the recipient gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, purporting to set out the number of whole kilometres travelled by the car in providing transport by virtue of which the benefit is in respect of relocation transport;
the amount that, but for this section, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by so much of the amount of the reimbursement as does not exceed the reimbursement that would have been paid if it had been calculated on the basis of the sum of the following rates:
(d) the basic car rate; (e) where 2 or more family members travelled in the car when it provided the transport by virtue of which the benefit is in respect of relocation transport - the supplementary car rate.[ CCH Note: Legislative Instrument F2024L00350, made under s 123AA of the Fringe Benefits Tax Assessment Act 1986 and effective for the FBT year ending 31 March 2025 and all subsequent years, allows an employer to which the instrument applies to accept adequate alternative records instead of a declaration referred to in s 61B(c). Section 6 of the instrument sets out adequate alternative records that can be accepted instead of a relevant employee declaration. Records can only be accepted as an alternative to the declaration if they are obtained and held by the employer by the employer's declaration date.]
Where: (a) any of the following fringe benefits is provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer:
(i) an expense payment fringe benefit where the recipients expenditure is in respect of:
(A) a lease or licence in respect of a unit of accommodation occupied or used for the temporary accommodation of family members; or
(B) a lease or licence in respect of goods primarily for domestic use by family members, being domestic use in connection with a unit of accommodation occupied or used for the temporary accommodation of family members;
(ii) a housing fringe benefit where the housing right is in respect of a unit of accommodation occupied or used for the temporary accommodation of family members;
(b) the temporary accommodation is required solely because the employee is required to change his or her usual place of residence in order to perform the duties of that employment; (c) if the unit of accommodation is located at or near the employee's former usual place of residence - the temporary accommodation was required because the unit of accommodation that was the employee's former usual place of residence became unavailable, or unsuitable, for residential use by family members due to removal, storage or other arrangements relating to the change in the usual place of residence of the employee; (d) if the unit of accommodation is located at or near the employee's new place of employment - the employee, or an associate of the employee, either before, on, or as soon as reasonably practicable after, the day (in this section called the "relocation day" ) on which the employee commenced to perform the duties of that employment at the employee's new place of employment, commenced sustained reasonable efforts to acquire, or to acquire the right to occupy or use, a unit of accommodation intended by the employee or associate, as the case may be, to provide a long-term place of residence for the employee; and (e) the fringe benefit is not provided under a non-arm's length arrangement;
(iii) a residual fringe benefit where the recipients benefit:
(A) is constituted by the subsistence of a lease or licence in respect of a unit of accommodation occupied or used for the temporary accommodation of family members; or
(B) is constituted by the subsistence of a lease or licence in respect of goods primarily for domestic use by family members, being domestic use in connection with a unit of accommodation occupied or used for the temporary accommodation of family members;
the following provisions have effect.
61C(2)
Where: (a) paragraph (1)(c) applies; and (b) a percentage (in this subsection called the "attributable percentage" ) of the taxable value of the fringe benefit in relation to the year of tax is attributable to the subsistence of the lease, licence or housing right referred to in paragraph (1)(a) during the whole or a part of the period of 21 days that ended on the day on which the employee commenced to perform the duties of that employment at the employee's new place of employment;
the amount that, but for this subsection and section 62, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by the attributable percentage.
61C(3)
Where: (a) paragraph (1)(d) applies; (b) any of the following subparagraphs applies:
(i) (Repealed by No 178 of 1999)
(ii) the employee, not later than 4 months after the relocation day, pursuant to a contract entered into by the employee or an associate of the employee, commences or commenced to occupy or use a unit of accommodation intended by the employee or associate, as the case may be, to provide a long-term place of residence for the employee;
(c) a percentage (in this subsection called the "attributable percentage" ) of the taxable value of the fringe benefit in relation to the year of tax is attributable to the subsistence of the lease, licence or housing right referred to in paragraph (1)(a) during the whole or a part of the period commencing 7 days before the relocation day and ending on the earlier or earliest of whichever of the following days is applicable:
(iii) the employee gives to the employer, before the declaration date, a declaration in a form approved by the Commissioner, in respect of the application of this section in relation to the employee; and
(i) if, during the initial accommodation search period, a contract is or was entered into by the employee or an associate of the employee for the acquisition of, or of the right to occupy or use, a unit of accommodation intended by the employee or associate to provide a long-term place of residence for the employee - the day on which the employee could reasonably be or have been expected to commence, or to have commenced, to occupy or use that unit of accommodation pursuant to that contract;
(ii) if the initial accommodation search period ends or ended before any contract of a kind referred to in subparagraph (i) of this paragraph is or was entered into by the employee or an associate - the day on which that period ends or ended;
(iii) if:
(A) the unit of accommodation that was the employee's former usual place of residence was a dwelling in which the employee, or an associate of the employee, held a relevant proprietary interest;
(B) within 6 months after the relocation day, a contract for the sale of that relevant proprietary interest is or was entered into; andthe day occurring 12 months after the relocation day;
(C) the efforts referred to in paragraph (1)(d), and the efforts of that kind that continue or continued to be made during the initial accommodation search period are, or were, efforts to acquire a relevant proprietary interest in a unit of accommodation, being a dwelling;
(iv) except in a case where subparagraph (iii) applies - the day occurring 6 months after the relocation day;
the amount that, but for this subsection and section 62, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by the attributable percentage.
[ CCH Note: Legislative Instrument F2024L00337, made under s 123AA of the Fringe Benefits Tax Assessment Act 1986 and effective for the FBT year ending 31 March 2025 and all subsequent years, allows an employer to which the instrument applies to accept adequate alternative records instead of a declaration referred to in s 61C(3)(b)(iii). Section 6 of the instrument sets out adequate alternative records that can be accepted instead of a relevant employee declaration. Records can only be accepted as an alternative to the declaration if they are obtained and held by the employer by the employer's declaration date.]
61C(4)
A reference in this section to the acquisition of a unit of accommodation includes a reference to the acquisition of a relevant proprietary interest in a unit of accommodation, being a dwelling.
61C(5)
In this section:
"initial accommodation search period"
, in relation to a case to which paragraph (1)(d) applies, means the period commencing on the commencement, or the first commencement, as the case requires, of the efforts referred to in that paragraph and ending when efforts of that kind first cease or ceased to be made;
"relevant proprietary interest"
, in relation to a unit of accommodation, being a dwelling, means:
(a) in any case - a prescribed interest in land on which a building constituting, or containing, the dwelling is located;
(b) in any case - a prescribed interest in a stratum unit in relation to the dwelling; or
(c) if the dwelling is a flat or home unit - a proprietary right in respect of the dwelling.
(a) either of the following fringe benefits (in this section called a ``temporary accommodation meal fringe benefit'' ) is provided in a year of tax to an employee of an employer, or to an associate of the employee, in respect of the employment of the employee:
(i) an expense payment fringe benefit where the recipients expenditure is in respect of a meal;
(ii) a property fringe benefit where the recipients property is a meal; and
(b) the meal was for consumption by a family member at a time when the family member was accommodated in a hotel, motel, hostel or guest-house;
(c) any of the following fringe benefits is provided in, or in respect of, the year of tax in respect of that employment:
(i) an expense payment benefit where the recipients expenditure is in respect of that accommodation;
(ii) a housing benefit where the housing right is in respect of that accommodation;
(iii) a residual benefit where the recipients benefit is constituted by the subsistence of a lease or licence in respect of that accommodation;
(d) both of the following conditions are satisfied:
(i) under section 61C, the taxable value of the fringe benefit referred to in paragraph (c) in relation to the year of tax is reduced by the extent to which that taxable value is attributable to the subsistence of a lease or licence, or a housing right, in respect of the accommodation during a particular period in the year of tax;
(ii) the meal was for consumption by a family member at a time during that period; and
(e) the amount that, but for this section and section 62 and the recipients contribution, would be the taxable value of the temporary accommodation meal fringe benefit exceeds:
(i) in a case where the recipient had attained the age of 12 years before the beginning of the year of tax - $2.00; or
(ii) in any other case - $1.00;
the amount that, but for this section and section 62 and the recipients contribution, would be the taxable value of that temporary accommodation meal fringe benefit shall be reduced by the amount of the excess referred to in paragraph (e).
For the purposes of the application of this section to an in-house property expense payment fringe benefit, a reference in this section to the recipients contribution in relation to the fringe benefit is a reference to the amount ascertained under paragraph 22A(1)(b).
Where: (a) an expense payment fringe benefit in respect of an employment interview or selection test is provided in a year of tax to an employee of an employer in respect of the employment of the employee; (b) the fringe benefit is constituted by the reimbursement of the recipient, in whole or in part, in respect of an amount of a Division 28 car expense incurred by the recipient in relation to a car owned by, or leased to, the recipient, being a reimbursement calculated by reference to the distance travelled by the car; and (c) the recipient gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, purporting to set out the number of whole kilometres travelled by the car in providing transport by virtue of which the benefit is in respect of an employment interview or selection test;
the amount that, but for this section, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by so much of the amount of the reimbursement as does not exceed the reimbursement that would have been paid if it had been calculated on the basis of the basic car rate.
[ CCH Note: Legislative Instrument F2024L00329, made under s 123AA of the Fringe Benefits Tax Assessment Act 1986 and effective for the FBT year ending 31 March 2025 and all subsequent years, allows an employer to which the instrument applies to accept adequate alternative records instead of a declaration referred to in s 61E(c). Section 6 of the instrument sets out adequate alternative records that can be accepted instead of a relevant employee declaration. Records can only be accepted as an alternative to the declaration if they are obtained and held by the employer by the employer's declaration date.]
Where: (a) an expense payment fringe benefit associated with:
(i) a work-related medical examination of an employee of an employer;
(ii) work-related medical screening of an employee of an employer;
(iii) work-related preventative health care of an employee of an employer;
(iv) work-related counselling of an employee of an employer or of an associate of an employee of an employer; or
is provided in a year of tax to the employee, or to an associate of the employee, in respect of the employment of the employee; (b) the fringe benefit is constituted by the reimbursement of the recipient, in whole or in part, in respect of an amount of a Division 28 car expense incurred by the recipient in relation to a car owned by, or leased to, the recipient, being a reimbursement calculated by reference to the distance travelled by the car; and (c) the recipient gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, purporting to set out the number of whole kilometres travelled by the car in providing transport by virtue of which the benefit is associated with:
(v) migrant language training of an employee of an employer or of an associate of an employee of an employer;
(i) a work-related medical examination of the employee; or
(ii) work-related medical screening of the employee; or
(iii) work-related preventative health care of the employee; or
(iv) work-related counselling of the employee or of an associate of the employee; or
(v) migrant language training of the employee or of an associate of the employee;
the amount that, but for this section, would be the taxable value of the fringe benefit in relation to the year of tax shall be reduced by so much of the amount of the reimbursement as does not exceed the reimbursement that would have been paid if it had been calculated on the basis of the sum of the following rates:
(d) the basic car rate; (e) where:
(i) the benefit is associated with work-related counselling of the employee or of an associate of the employee or with migrant language training of the employee or of an associate of the employee; and
the supplementary car rate.
(ii) 2 or more family members travelled in the car when it provided the transport by virtue of which the benefit is associated with work-related counselling of the employee or of an associate of the employee or with migrant language training of the employee or of an associate of the employee;
[ CCH Note: Legislative Instrument F2024L00338, made under s 123AA of the Fringe Benefits Tax Assessment Act 1986 and effective for the FBT year ending 31 March 2025 and all subsequent years, allows an employer to which the instrument applies to accept adequate alternative records instead of a declaration referred to in s 61F(c). Section 6 of the instrument sets out adequate alternative records that can be accepted instead of a relevant employee declaration. Records can only be accepted as an alternative to the declaration if they are obtained and held by the employer by the employer's declaration date.]
If:
(a) a fringe benefit is provided in the year of tax in respect of the employment of a current employee; and
(b) the person providing the benefit cannot deduct an amount under the Income Tax Assessment Act 1997 for providing the benefit because of section 85-15, 85-20 or 86-60 of that Act;
the amount that, but for this section, would be the taxable value of the fringe benefit in relation to the year of tax is reduced by the amount mentioned in paragraph (b).
Note:
Sections 85-15, 85-20 and 86-60 of the Income Tax Assessment Act 1997 limit the extent to which a person can deduct payments to associates that relate to personal services income.
Where one or more in-house fringe benefits in relation to an employer in relation to a year of tax relate to a particular employee of the employer, the taxable value of that fringe benefit, or the sum of the taxable values of those fringe benefits, as the case may be, in relation to that year shall be reduced by:
(a) if the taxable value or the sum of the taxable values does not exceed $1,000 - an amount equal to the taxable value or the sum of the taxable values; or
(b) in any other case - $1,000.
62(2)
Subsection (1) does not apply to an in-house fringe benefit provided under a salary packaging arrangement.
SECTION 63 REDUCTION OF TAXABLE VALUE OF LIVING-AWAY-FROM-HOME FOOD FRINGE BENEFITS 63(1)
Where-
(a) a living-away-from-home food fringe benefit, or 2 or more living-away-from-home food fringe benefits, in relation to an employer in relation to a year of tax relates or relate to a particular employee; and
(b) the fringe benefit or fringe benefits are equivalent to the food component of a living-away-from-home allowance fringe benefit in respect of a particular period in the year of tax; and
(c) that food component exceeds the sum of the statutory food amounts in respect of eligible family members in respect of that period; and
(d) the employee satisfies:
(i) sections 31C (about maintaining an Australian home) and 31D (about the first 12 months); or
(ii) section 31E (about fly-in fly-out and drive-in drive-out requirements); and
(da) the employee gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, purporting to set out:
(i) if the employee satisfies sections 31C and 31D - the matters in subparagraphs 31F(1)(a)(i) to (iii); or
(ii) if the employee satisfies section 31E - the matters in subparagraphs 31F(1)(b)(i) to (iii);
the following provisions apply:
(e) if there is only one living-away-from-home food fringe benefit - the amount that, but for this section and section 62 and the recipients contribution, would be the taxable value of that fringe benefit, shall be reduced by the amount of the excess referred to in paragraph (c);
(f) if there are 2 or more living-away-from-home food fringe benefits - the amounts that, but for this section and section 62 and the recipients contribution, would be the taxable values of those fringe benefits shall be reduced by amounts proportionate to those taxable values and equal in total to the amount of the excess referred to in paragraph (c).
63(2)
For the purposes of the application of this section to an in-house property expense payment fringe benefit, a reference in this section to the recipients contribution in relation to the fringe benefit is a reference to the amount ascertained under paragraph 22A(1)(b).
SECTION 63A REDUCTION OF TAXABLE VALUE IN RESPECT OF ENTERTAINMENT COMPONENT OF CERTAIN FRINGE BENEFITS 63A(1) Taxable value reduced by entertainment percentage.
(a) the recipient of an expense payment fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer; and
(b) a percentage of the recipients expenditure is in respect of the provision of entertainment other than to the recipient or an associate of the recipient;
the amount that, apart from this subsection, would be the taxable value of the expense payment fringe benefit in relation to the year of tax is reduced by that percentage.
If the taxable value of the expense payment fringe benefit has been reduced under Division 5 by reason of a particular matter or thing, the taxable value of the fringe benefit is not reduced under this section in respect of the same matter or thing.
(Repealed by No 57 of 1993) 64A (Repealed) SECTION 64A REDUCTION OF TAXABLE VALUE IN RELATION TO EXPENDITURE IN RESPECT OF HIGHER EDUCATION CONTRIBUTION
(Repealed by No 57 of 1993)
(Repealed by No 57 of 1993) SECTION 65A 65A REDUCTION OF TAXABLE VALUE - EDUCATION OF CHILDREN OF OVERSEAS EMPLOYEES
Where:
(a) any of the following fringe benefits in relation to a year of tax is provided in respect of the employment of an employee:
(i) a car fringe benefit where the application or availability of the car is in respect of the full-time education of a child of the employee, not being a child who had attained the age of 25 years before the day on which the benefit was provided;
(ii) an expense payment fringe benefit where the recipients expenditure is in respect of the full-time education of a child of the employee, not being a child who had attained the age of 25 years before the day on which the benefit was provided;
(iii) a property fringe benefit where the recipients property is required solely for the purposes of the full-time education of a child of the employee, not being a child who had attained the age of 25 years before the provision time;
(iv) a residual fringe benefit where the recipients benefit consists of, or is required solely for the purposes of, the full-time education of a child of the employee, not being a child who had attained the age of 25 years before the comparison time;
(b) the full-time education is:
(i) at an educational institution; or
(ii) by a tutor;
(c) the whole or any part of the full-time education is undertaken by the child when the employee is an overseas employee;
(d) either of the following conditions is satisfied:
(i) the benefit is provided pursuant to the provisions of an industrial instrument relating to the employment of the employee;
(ii) it is customary for employers in the industry in which the employee is employed to provide benefits of the same kind as the benefit provided to the recipient and to provide such benefits in similar circumstances to those that applied in relation to the provision of the benefit to the recipient;
(e) in the case of an expense payment fringe benefit - documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer of the employee before the declaration date; and
(f) a percentage (in this section called the "attributable percentage" ) of the taxable value, in relation to the year of tax, of the fringe benefit is attributable to the full-time education of the child in the period commencing on whichever of the following days is applicable:
(i) if:
(A) the full-time education is at an educational institution;
(B) the overseas posting period is a period of not less than 28 days; andthe day on which that academic period commenced; or
(C) the overseas posting period commenced during an academic period of the educational institution;
(ii) in any other case - the day on which the overseas posting period commenced;
and ending on whichever of the following days is applicable:
(iii) if:
(A) the full-time education is at an educational institution;
(B) the overseas posting period is a period of not less than 28 days; andthe day on which that academic period ended;
(C) the overseas posting period ended during an academic period of the educational institution;
(iv) in any other case - the day on which the overseas posting period ended;
the amount that, but for this section and section 62, would be the taxable value of that fringe benefit in relation to the year of tax shall be reduced by the attributable percentage.
(Repealed by No 100 of 1991)
(Repealed by No 100 of 1991)
(Repealed by No 57 of 1993)
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Divisions 14, 14A and 14B of Part III of the Act are modified by repealing the Divisions.]
(a) the recipient of any of the following fringe benefits in relation to an employer in relation to a year of tax (in this section called the ``benefit year of tax'' ) is an employee of the employer:
(i) a property fringe benefit where the recipients property is remote area residential property;
(ii) a property fringe benefit where the recipients property is a remote area residential property option fee;
(iii) an expense payment fringe benefit where the recipients expenditure is in respect of remote area residential property;
(b) in the case of a property fringe benefit where the recipients property is remote area residential property - at or before the provision time, the employee entered into a recognised remote area housing obligation restricting the disposal of the estate or interest concerned;
(c) in the case of an expense payment fringe benefit - at or before the time when the employee acquired the estate or interest concerned, the employee entered into a recognised remote area housing obligation restricting the disposal of the estate or interest concerned; and
(d) in all cases - the period (in this section called the ``overall amortisation period'' ) commencing at whichever of the following times is applicable:
(i) if subparagraph (a)(i) or (ii) applies - the provision time;
(which time is in this section called the ``benefit time'' ) and ending at the earliest of the following later times:
(ii) if subparagraph (a)(iii) applies - the time when the recipients expenditure was incurred;
(iii) the time when the employee ceases or first ceases to be subject to the recognised remote area housing obligation referred to in paragraph (b) or (c) of this subsection or in paragraph 142(2A)(e), as the case requires;
(iv) the time when the employee ceases or first ceases to be employed by the employer;
(v) the time when the employee ceases or first ceases to occupy or use the dwelling concerned as his or her usual place of residence;
(vi) the time of the death of the employee;
commences and ends in different years of tax;
(vii) the end of the period of 7 years after the benefit time;
the fringe benefit is an amortised fringe benefit.
65CA(2) [Notional amortisation period]The notional amortisation period in relation to the amortised fringe benefit is the period commencing at the benefit time and ending at the earlier of the following times:
(a) the end of the period specified in the contract to which the recognised remote area housing obligation concerned relates, being the period during which the employee is to be subject to that obligation;
(b) the end of the period of 7 years after the benefit time. 65CA(3) [Amortised amount where period does not end in the year]
If the overall amortisation period has not come to an end before the end of a particular year of tax (in this subsection called the ``current year of tax'' ), the amortised amount, in relation to the current year of tax, of the amortised fringe benefit is the amount calculated in accordance with the formula:
| Taxable value × |
Current amortisation period
Notional amortisation period |
where:
Taxable value is the taxable value, in relation to the benefit year of tax, of the fringe benefit;
Current amortisation period is the whole number of months (or part months) in the current year of tax that are included in the notional amortisation period;
Notional amortisation period is the whole number of months (or part months) that are included in the notional amortisation period.
65CA(4) [Amortised amount where period ends during year]If the overall amortisation period comes to an end during a particular year of tax (in this subsection called the ``current year of tax'' ), the amortised amount, in relation to the current year of tax, of the amortised fringe benefit is the amount calculated in accordance with the formula:
| Taxable value − Previously amortised amounts |
where:
Taxable value is the taxable value, in relation to the benefit year of tax, of the fringe benefit;
Previously amortised amounts is the sum of the amortised amounts, in relation to each year of tax preceding the current year of tax, of the fringe benefit.
65CA(5) [Expenditure incurred before 1 July 1986]Where the recipients expenditure in relation to an expense payment fringe benefit was incurred before 1 July 1986, paragraph (1)(d) applies in relation to the fringe benefit as if the recipients expenditure had been incurred on 1 July 1986.
65CA(6) [Extended amortisation treatment]Where the following paragraphs apply in relation to a fringe benefit in relation to an employer in relation to a year of tax:
(a) the fringe benefit would have been an amortised fringe benefit if the reference in subsection 142(2D) to 5 years were a reference to 7 years;
(b) the benefit time occurred before 31 August 1988;
the employer is eligible for extended amortisation treatment.
(a) an employer is eligible for extended amortisation treatment; and
(b) a fringe benefit in relation to the employer in relation to a year of tax would have been an amortised fringe benefit if the reference in subsection 142(2D) to a contractual obligation were a reference to a contractual obligation entered into before the end of the period of 6 months after the commencement of this subsection;
the following provisions have effect:
(c) a reference in subsection (3) or (4) of this section to the overall amortisation period in relation to the fringe benefit is to be read as a reference to the period that would have been the overall amortisation period in relation to the fringe benefit if the reference in subparagraph (1)(d)(vii) of this section to 7 years were a reference to 15 years;
(d) for the purpose of determining the notional amortisation period in relation to the fringe benefit, the reference in paragraph (2)(b) of this section to 7 years is to be read as a reference to 15 years.
Nothing in section 74 prevents the amendment at any time of an assessment for the purposes of giving effect to this Division.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Divisions 14, 14A and 14B of Part III of the Act are modified by repealing the Divisions.]
(a) the recipient of a property fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer;
(b) the recipients property is remote area residential property repurchase consideration;
(c) the taxable value of the fringe benefit in relation to the year of tax is nil; and
(d) the market value of the estate or interest purchased by the provider of the fringe benefit exceeds the amount paid by the provider by way of consideration for the purchase of the estate or interest;
the fringe benefit is a reducible fringe benefit.
65CC(2) [Reduction amount]The reduction amount, in relation to the year of tax, of the reducible fringe benefit is 50% of the amount of the excess referred to in paragraph (1)(d).
The object of this Division is to set out the substantiation rules that apply for the purposes of sections 19, 24, 44 and 52 in relation to cars held by recipients of fringe benefits.
Where a car is held by the recipient of a loan fringe benefit, expense payment fringe benefit, property fringe benefit or residual fringe benefit in relation to an employer during a period (in this section called the ``holding period'' ) in a year of tax that is a log book year of tax of the recipient in relation to the car, the substantiation rules shall be taken to have been complied with in relation to the car in relation to the holding period if, and only if:
(a) log book records and odometer records have been maintained by or on behalf of the recipient for an applicable log book period in relation to the car; and
(b) odometer records are maintained by or on behalf of the provider for the holding period; and
(c) the employer specifies the employer's estimate of the number of business kilometres travelled by the car during the holding period; and
(d) the employer specifies a percentage as the business use percentage applicable to the car in relation to the recipient for the holding period.
Where a car is held by the recipient of a loan fringe benefit, an expense payment fringe benefit, a property fringe benefit or a residual fringe benefit during a period (in this section called the ``holding period'' ) in a year of tax that is not a log book year of tax of the recipient in relation to the car, the substantiation rules shall be taken to be complied with in relation to the car if, and only if:
(a) odometer records are maintained by or on behalf of the recipient in relation to the car for the holding period; and
(b) the employer specifies the employer's estimate of the number of business kilometres travelled by the car in the holding period; and
(c) the employer specifies a percentage as the business use percentage applicable to the car in relation to the recipient for the holding period.
(Repealed by No 145 of 1995)
(Repealed by No 145 of 1995)
Rebatable employer
65J(1)
An employer is a rebatable employer for a year of tax if the employer:
(a) is exempt from income tax at any time during the year of tax under any of the provisions set out in the following table; and
(b) satisfies the special conditions (if any) set out in the following table.
| Rebatable employer | ||
| Item | Column 1 | Column 2 |
| Type of employer | Special conditions | |
| 1 | a registered charity covered by item 1.1 of the table in section 50-5 of the Income Tax Assessment Act 1997 | The registered charity is not a rebatable employer for the year of tax if it: |
| (a) | is a registered public benevolent institution; or | |
| (b) | is a registered health promotion charity; or | |
| (c) | is an institution of the Commonwealth, a State or a Territory; or | |
| (d) | has not been endorsed under subsection 123E(1); or | |
| (e) | is not an institution. | |
| 2 | a scientific institution covered by item 1.3 of the table in section 50-5 of the Income Tax Assessment Act 1997 | The institution is not an institution of the Commonwealth, a State or a Territory unless it: |
| (a) | is an institution established by a law of the Commonwealth, a State or a Territory; and | |
| (b) | is not conducted by or on behalf of the Commonwealth, a State or a Territory; and | |
| (c) | is engaged solely in research into the causes, prevention or cure of diseases in humans. | |
| 3 | a public educational institution covered by item 1.4 of the table in section 50-5 of the Income Tax Assessment Act 1997 | The institution is not an institution established by a law of the Commonwealth, a State or a Territory unless it: |
| (a) | is not conducted by or on behalf of the Commonwealth, a State or a Territory; and | |
| (b) | is a preschool or school (other than a tertiary institution). | |
| 4 | a society, association or club: | See subsection (5) of this section. |
| (a) | established for the encouragement of science; and | |
| (b) | covered by item 1.7 of the table in section 50-5 of the Income Tax Assessment Act 1997 | |
| 5 | a society, association or club: | See subsection (5) of this section. |
| (a) | established for community service purposes (except political or lobbying purposes); and | |
| (b) | covered by item 2.1 of the table in section 50-10 of the Income Tax Assessment Act 1997 | |
| 6 | an employer association or an employee association covered by item 3.1 of the table in section 50-15 of the Income Tax Assessment Act 1997 | None. |
| 7 | a trade union covered by item 3.2 of the table in section 50-15 of the Income Tax Assessment Act 1997 | None. |
| 8 | a society or association: | See subsection (5) of this section. |
| (a) | established for the purpose of promoting the development of: | |
| (i) aviation; or | ||
| (ii) tourism; and | ||
| (b) | covered by item 8.1 of the table in section 50-40 of the Income Tax Assessment Act 1997 | |
| 9 | a society or association: | See subsection (5) of this section. |
| (a) | established for the purpose of promoting the development of any of the following Australian resources: | |
| (i) agricultural resources; | ||
| (ii) horticultural resources; | ||
| (iii) industrial resources; | ||
| (iv) manufacturing resources; | ||
| (v) pastoral resources; | ||
| (vi) viticultural resources; | ||
| (vii) aquacultural resources; | ||
| (viii) fishing resources; and | ||
| (b) | covered by item 8.2 of the table in section 50-40 of the Income Tax Assessment Act 1997 | |
| 10 | a society or association: | See subsection (5) of this section. |
| (a) | established for the purpose of promoting the development of Australian information and communications technology resources; and | |
| (b) | covered by item 8.3 of the table in section 50-40 of the Income Tax Assessment Act 1997 | |
| 11 | a society, association or club: | See subsection (5) of this section. |
| (a) | established for the encouragement of any of the following: | |
| (i) animal racing; | ||
| (ii) art; | ||
| (iii) a game or sport; | ||
| (iv) literature; | ||
| (v) music; and | ||
| (b) | covered by item 9.1 of the table in section 50-45 of the Income Tax Assessment Act 1997 | |
| 12 | a society, association or club: | See subsection (5) of this section. |
| (a) | established for musical purposes; and | |
| (b) | covered by item 9.2 of the table in section 50-45 of the Income Tax Assessment Act 1997 |
Note:
Subsection (3) affects the kind of employers that may be considered to be an institution of government.
65J(1A)
(Repealed by No 124 of 2013)
65J(2)
(Repealed by No 124 of 2013)
65J(2A) Rebate for year of tax 2000-2001 and later years.
If an employer is a rebatable employer for the year of tax beginning on 1 April 2000 or a later year of tax, the employer is entitled to a rebate of tax in the employer's assessment for the year of tax concerned equal to the amount worked out using the formula:
where:
gross tax
means the amount of tax payable on the fringe benefits taxable amount of the employer of the year of tax (assuming that this section had not been enacted).
rebatable days in year
means the number of whole days in the year of tax when the employer engaged in activities as an employer covered by any of the table items in subsection (1).
total days in year
means the number of days in the year of tax excluding the days on which the employer did not engage in activities as an employer.
An employer's
aggregate non-rebatable amount
for the year of tax is the amount worked out as follows.
Method statement
Step 1.
For each employee, add:
(a) the individual grossed-up type 1 non-rebatable amount (see subsection (2C)) in relation to the employer for the year of tax; and
(b) the individual grossed-up type 2 non-rebatable amount (see subsection (2D)) in relation to the employer for the year of tax.
The result is the individual grossed-up non-rebatable amount for the employee.
Step 2.
Reduce the individual grossed-up non-rebatable amount for each employee of the employer by $30,000, but not below zero.
Step 2A.
If the amount calculated under step 2 in relation to an employee is positive, reduce that amount (but not below zero) by the lesser of:
(a) $5,000; and
(b) so much of the employee's individual grossed-up non-rebatable amount as relates to benefits covered by subsection (2J) (about salary packaged meal entertainment and entertainment facility leasing benefits).
Step 3.
Add up the results of step 2A for all the employer's employees.
Step 4.
Multiply the sum from step 3 by the FBT rate. The result is the employer's aggregate non-rebatable amount for the year of tax.
For the purposes of step 1 in the method statement in subsection (2B), the individual grossed-up type 1 non-rebatable amount of an employee in relation to the employer for the year of tax is:
| Type 1
individual base non-rebatable amount |
× |
FBT rate + GST rate
(1 − FBT rate) × (1 + GST rate) × FBT rate |
For the purposes of step 1 in the method statement in subsection (2B), the individual grossed-up type 2 non-rebatable amount of an employee in relation to the employer for the year of tax is:
| Type 2
individual base non-rebatable amount |
× | 1 | ||
| (1 − FBT rate) |
An employee's type 1 individual base non-rebatable amount in relation to the employer for the year of tax is worked out by adding the amounts worked out under step 3 of the method statement in subsection (2G) and step 3 of the method statement in subsection (2H).
An employee's type 2 individual base non-rebatable amount in relation to the employer for the year of tax is worked out by adding the amounts worked out under step 4 of the method statement in subsection (2G) and step 4 of the method statement in subsection (2H).
An employee's subsection (2G) amounts for the year of tax are worked out as follows.
Method statement
Step 1.
Work out under section 5E for each of the employer's employees the employee's individual fringe benefits amount (if any) for the year of tax in respect of the employee's employment by the employer.
Step 2.
Identify the benefits taken into account in step 1 that are GST-creditable benefits (see section 149A).
Step 3.
So much of the amount worked out under step 1 that relates to the benefits identified under step 2 is the step 3 of subsection (2G) amount for the individual.
Step 4.
The remainder of the amount is the step 4 of subsection (2G) amount for the individual.
An employee's subsection (2H) amounts for the year of tax are worked out as follows.
Method statement
Step 1.
Work out for each employee his or her share (if any) of the taxable values of the excluded fringe benefits for the year of tax in respect of the employee's employment by the employer, but disregarding benefits:
(a) that constitute the provision of meal entertainment as defined in section 37AD (whether or not the employer made an election under section 37AA); or
(b) that are car parking fringe benefits; or
(c) whose taxable values are wholly or partly attributable to entertainment facility leasing expenses.
Step 2.
Identify the benefits taken into account in step 1 that are GST-creditable benefits (see section 149A).
Step 3.
So much of the amount worked out under step 1 that relates to the benefits identified under step 2 is the step 3 of subsection (2H) amount for the individual.
Step 4.
The remainder of the amount is the step 4 of subsection (2H) amount for the individual.
Salary packaged meal entertainment and entertainment facility leasing benefits
65J(2J)
This subsection covers a benefit that is provided under a salary packaging arrangement if:
(a) the benefit is constituted by the provision of meal entertainment (as defined in section 37AD, whether or not the employer has elected that Division 9A of Part III apply to the employer); or
(b) the benefit is wholly or partly attributable to entertainment facility leasing expenses.
65J(3)
For the purposes of this section, an institution established by a law of the Commonwealth, a State or a Territory is taken to be an institution of the Commonwealth, the State or the Territory, as the case requires.
65J(4)
(Repealed by No 52 of 2000)
65J(5)
A society, association or club is not covered by table item 4, 5, 8, 9, 10, 11 or 12 in subsection (1) for a year of tax if it is:
(a) an incorporated company where all the stock or shares in the capital of the company is or are beneficially owned by:
(i) the Commonwealth, a State or a Territory; or
(ii) an authority or institution of the Commonwealth, a State or a Territory; or
(b) an incorporated company where the company is limited by guarantee and the interests and rights of the members in or in relation to the company are beneficially owned by:
(i) the Commonwealth, a State or a Territory; or
(ii) an authority or institution of the Commonwealth, a State or a Territory.
65J(6) Definitions.
In this section:
FBT rate
means the rate of fringe benefits tax for the year of tax.
GST rate
means the rate of goods and services tax payable under the A New Tax System (Goods and Services Tax) Act 1999 for the year of tax.
Subject to this Act, tax imposed in respect of the fringe benefits taxable amount of an employer of a year of tax is payable by the employer.
66(2) [Previous exempting law ineffective]A law, or a provision of a law, passed before the commencement of this Act that purports to exempt a person from liability to pay fringe benefits tax or to pay taxes that includethat tax does not exempt that person from liability to pay that tax.
66(3) [Express exemption only]A law, or a provision of a law, passed after the commencement of this Act that purports to exempt a person from liability to pay taxes under the laws of the Commonwealth or to pay certain taxes under those laws that include fringe benefits tax, other than a law or a provision that expressly exempts a person from liability to pay that tax, shall not be construed as exempting the person from liability to pay that tax.
SECTION 67 ARRANGEMENTS TO AVOID OR REDUCE FRINGE BENEFITS TAX 67(1)Where:
(a) an employer (in this subsection referred to as the eligible employer ) has obtained or, but for this section, would obtain, a tax benefit in respect of a year of tax in connection with an arrangement under which a benefit is or was provided to a person, being an arrangement that was entered into, or commenced to be carried out, on or after 19 September 1985; and
(b) it would be concluded that the person, or one of the persons, who entered into or carried out the arrangement or any part of the arrangement did so for the sole or dominant purpose of enabling the eligible employer to obtain a tax benefit in connection with the arrangement or of enabling the eligible employer and another employer or other employers each to obtain a tax benefit in connection with the arrangement (whether or not that person who entered into or carried out the arrangement or any part of the arrangement is the eligible employer or is the other employer or one of the other employers);
the Commissioner:
(c) may determine that the aggregate fringe benefits amount (if any) of the eligible employer of the year of tax be increased by the amount of the tax benefit; and
(d) may determine that appropriate adjustments (if any) be made to the aggregate fringe benefits amount of the eligible employer in respect of another year of tax or of another employer in respect of any year of tax;
and any such determination has effect accordingly.
67(2)
A reference in this section to the obtaining by an employer of a tax benefit in respect of a year of tax in connection with an arrangement under which a benefit is provided to a person is a reference to an amount not being included in the aggregate fringe benefits amount of the employer of the year of tax in respect of that benefit where the amount would have been included, or could reasonably be expected to have been included, in that aggregate fringe benefits amount if the arrangement had not been entered into or carried out.
67(3)
A reference in this section to the obtaining by an employer of a tax benefit in respect of a year of tax in connection with an arrangement under which a benefit is provided to a person does not include a reference to an amount not being included in the aggregate fringe benefits amount of the employer of the year of tax in respect of that benefit, being an amount that would have been included, or could reasonably be expected to have been included, in that aggregate fringe benefits amount if the arrangement had not been entered into or carried out, where the non-inclusion of the amount in that aggregate fringe benefits amount is attributable to the payment or provision by a person of consideration in respect of the provision of the benefit.
67(4)
Where, at any time, an employer considers that the Commissioner ought to make a determination under paragraph (1)(d) in relation to the employer in relation to a year of tax, the employer may post to or lodge with the Commissioner a request in writing for the making by the Commissioner of a determination under that paragraph.
67(5)
The Commissioner shall consider the request and serve on the employer a written notice of the Commissioner's decision on the request.
67(6)
If the employer is dissatisfied with the Commissioner's decision on the request, the employer may object against the decision in the manner set out in Part IVC of the Taxation Administration Act 1953.
67(7)
(Omitted by No 216 of 1991)
67(8)
Nothing in section 74 prevents the amendment of an assessment at any time before the end of 6 years after the original assessment date if the amendment is for the purposes of giving effect to subsection (1) of this section as it applies by virtue of paragraph (1)(c).
67(9)
Nothing in section 74 prevents the amendment of an assessment at any time if the amendment is for the purpose of giving effect to subsection (1) of this section as it applies by virtue of paragraph (1)(d).
67(10)
In this section, a reference to an employer, in relation to an arrangement, includes a reference to a person who would be, or might reasonably be expected to be, an employer but for the arrangement.
67(11)
A reference in this section to the carrying out of an arrangement by a person shall be read as including a reference to the carrying out of an arrangement by a person together with another person or other persons.
67(12)
Nothing in the provisions of this Act other than this section or in the International Tax Agreements Act 1953 shall be taken to limit the operation of this section.
PART V - RETURNS AND ASSESSMENTS Division 1 - Returns SECTION 68 68 ANNUAL RETURNS
Where there is a fringe benefits taxable amount of an employer of a year of tax, the employer shall, unless the employer has furnished a return or returns under section 69 in relation to the fringe benefits taxable amount of the year of tax, furnish to the Commissioner a return not later than 21 May in the next year of tax or such later date as the Commissioner allows.
Where the Commissioner, by notice in writing served on a person, requires the person, whether an employer or not, to furnish to the Commissioner a return in relation to a year of tax, the person shall furnish the return in the manner and within the time specified in the notice, whether or not the person has furnished, or is or was required to furnish, a return under section 68 or this section in respect of that year of tax. SECTION 70 70 KEEPING RECORDS OF INDIRECT TAX TRANSACTIONS
A return under section 68 or 69 must:
(a) be in the approved form; and
(b) specify:
(i) the fringe benefits taxable amount of the employer of the year of tax concerned; and
(ii) the amount of tax payable on that amount.
(Repealed by No 91 of 2000)
(Repealed by No 91 of 2000)
Where a taxpayer has given the address of a registered tax agent as the taxpayer's address for service, the registered tax agent must give the taxpayer the original of, or a copy of, any notice of assessment in respect of that taxpayer that is delivered to that address.
Penalty: 30 penalty units.
70D(2) [Strict liability]An offence under subsection (1) is an offence of strict liability.
Note:
For strict liability , see section 6.1 of the Criminal Code.
(Repealed by No 91 of 2000)
Where:
(a) at a particular time, a return under this Act in relation to an employer in relation to a year of tax is furnished; and
(b) before that time, no return has been furnished, and no assessment has been made, in relation to theemployer in relation to the year of tax;
the following provisions have effect:
(c) the Commissioner shall be deemed at that time to have made an assessment (in this section referred to as the deemed assessment ) of:
(i) the fringe benefits taxable amount (including a nil amount) of the employer of the year of tax; and
being those respective amounts as specified in the return referred to in paragraph (a);
(ii) the amount (including a nil amount) of tax payable on that fringe benefits taxable amount;
(d) the return referred to in paragraph (a) shall be deemed to be a notice of the deemed assessment and to be under the hand of the Commissioner;
(e) the notice referred to in paragraph (d) shall be deemed to have been served at that time on the person liable to pay the tax. SECTION 73 73 DEFAULT ASSESSMENTS
Where:
(a) an employer has not furnished a return in respect of a year of tax; and
(b) the Commissioner is of the opinion that the employer is liable to pay tax in respect of that year;
the Commissioner may, whether during that year or after the end of that year, make an assessment of:
(c) the fringe benefits taxable amount of the employer of the year of tax; and
(d) the amount of tax payable on that fringe benefits taxable amount. SECTION 74 AMENDMENT OF ASSESSMENTS
[ CCH Note: S 5 of No 35 of 1992, effective 25 May 1992, provides that s 74 does not prevent the amendment of an assessment made before the commencement of that section for the purpose of giving effect to Pt 2 of No 35 of 1992.]
The Commissioner may, at any time within a period of 3 years after the original assessment date in relation to an assessment, amend the assessment by making such alterations or additions to it as the Commissioner thinks necessary.
74(2)
Subject to this section, the Commissioner may, after the end of 3 years after the original assessment date in relation to an assessment, amend the assessment by making such alterations or additions to it as the Commissioner thinks necessary.
74(3)
Where:
(a) an employer does not make a full and true disclosure of all the material facts necessary for an assessment of the tax payable by the employer;
(b) the Commissioner makes an assessment; and
(c) there is an avoidance of tax;
the Commissioner may:
(d) where the Commissioner is of the opinion that the avoidance of tax is due to fraud or evasion - at any time; and
(e) in any other case - within 6 years after the original assessment date in relation to the assessment;
amend the assessment by making such alterations or additions to it as the Commissioner thinks necessary.
74(4)
No amendment effecting a reduction in the liability of an employer under an assessment shall be made after the end of 3 years after the original assessment date.
74(5)
Where an assessment has been amended under this section in any particular, the Commissioner may, within 3 years after the date on which the amended assessment is made, make, in or in respect of that particular, such further amendment of the assessment as, in the Commissioner's opinion, is necessary to effect such reduction in the liability of the employer liable to pay tax under the assessment as is just.
74(6)
Where an employer:
(a) applies, within 3 years after the original assessment date in relation to an assessment, for an amendment of an assessment; and
(b) supplies to the Commissioner within that period all information needed by the Commissioner for the purposes of determining the application made by the employer;
the Commissioner may amend the assessment, notwithstanding that that period has expired.
74(6A)
An application for amendment must be in the approved form.
74(6B)
(Omitted by No 91 of 2000)
74(7)
Nothing in this section prevents the amendment of an assessment:
(a) in order to give effect to a decision on a review or appeal; or
(b) by way of reduction in any particular pursuant to an objection made under this Act or pending an appeal or review.
74(8)
(Repealed by No 2 of 2015)
74A (Repealed) SECTION 74A EFFECT OF PUBLIC RULING
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
(Repealed by No 161 of 2005)
Where, by reason of an amendment of an assessment, a person's liability to tax is reduced:
(a) the amount by which the tax is so reduced shall be taken, for the purposes of section 93, never to have been payable; and
(b) the Commissioner shall:
(i) refund the amount of any tax overpaid; or
(ii) apply the amount of any tax overpaid against any liability of the person to the Commonwealth and refund any part of the amount that is not so applied.
75(2)
In subsection (1), unless the contrary intention appears, "tax" includes additional tax under section 93.
SECTION 76 76 AMENDED ASSESSMENT TO BE AN ASSESSMENT
Except as otherwise provided, an amended assessment is an assessment for all the purposes of this Act. SECTION 77 77 NOTICE OF ASSESSMENT
As soon as practicable after an assessment is made, the Commissioner shall serve notice of the assessment in writing on the person liable to pay the tax. SECTION 78 78 VALIDITY OF ASSESSMENT
The validity of any assessment is not affected by reason that any provision of this Act has not been complied with. SECTION 78A 78A OBJECTIONS
An employer who is dissatisfied with an assessment may object against it in the manner set out in Part IVC of the Taxation Administration Act 1953.
(Repealed by No 216 of 1991)
(Repealed by No 23 of 1987)
(Repealed by No 216 of 1991) 81 (Repealed) SECTION 81 REQUEST FOR REFERENCE
(Repealed by No 216 of 1991)
(Repealed by No 216 of 1991) 83 (Repealed) SECTION 83 CONSIDERATION OF APPLICATIONS FOR EXTENSION OF TIME FOR LODGING OBJECTIONS
(Repealed by No 216 of 1991) 84 (Repealed) SECTION 84 CONSIDERATION OF APPLICATIONS FOR EXTENSION OF TIME FOR LODGING REQUESTS FOR REFERENCE
(Repealed by No 216 of 1991)
(Repealed by No 216 of 1991)
(Repealed by No 216 of 1991) 86A (Repealed) SECTION 86A PROCEDURE ON REVIEW OR APPEAL
(Repealed by No 216 of 1991)
(Repealed by No 23 of 1987) 86C (Repealed) SECTION 86C (POWERS OF FEDERAL COURT ON APPEAL)
(Repealed by No 216 of 1991)
(Repealed by No 23 of 1987) 86E (Repealed) SECTION 86E IMPLEMENTATION OF DECISIONS
(Repealed by No 216 of 1991)
(Repealed by No 23 of 1987) 88 (Repealed) SECTION 88 PENDING REVIEW OR APPEAL NOT TO AFFECT ASSESSMENT
(Repealed by No 216 of 1991) 89 (Repealed) SECTION 89 ADJUSTMENT OF ASSESSMENT AFTER APPEAL
(Repealed by No 48 of 1986) PART VII - COLLECTION AND RECOVERY OF TAX Division 1 - General SECTION 90 90 WHEN TAX PAYABLE
Subject to this Part, tax assessed in respect of a year of tax becomes due and payable, or shall be deemed to have become due and payable, as the case requires, on 21 May in the next year of tax.
Note:
For provisions about collection and recovery of tax, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.
(Repealed by No 179 of 1999) 92 (Repealed) SECTION 92 EXTENSION OF TIME AND PAYMENT BY INSTALMENTS
(Repealed by No 179 of 1999) SECTION 93 UNPAID TAX 93(1)
If any of the tax (including additional tax) which a person is liable to pay remains unpaid after the time by which the tax is due to be paid, the person is liable to pay the general interest charge on the unpaid amount for each day in the period that:
(a) started at the beginning of the day by which the tax was due to be paid; and
(b) finishes at the end of the last day on which, at the end of the day, any of the following remains unpaid:
(i) the tax;
(ii) general interest charge on any of the tax.
93(2)
The amount of the general interest charge is taken to be additional tax payable under this section.
Note:
The general interest charge is worked out under Part IIA of the Taxation Administration Act 1953.
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999) 98 (Repealed) SECTION 98 WHERE NO ADMINISTRATION OF DECEASED EMPLOYER'S ESTATE
(Repealed by No 179 of 1999)
(Repealed by No 179 of 1999)
A person who has authority to receive, control or dispose of money belonging to a non-resident who is liable to an amount of tax shall, when required by the Commissioner by notice in writing served on the person, pay the amount of tax and, by force of this section, is, when so required:
(a) authorised and required to retain from time to time any money that comes to the person on behalf of the non-resident or so much of it as is sufficient to pay the amount of tax payable by the non-resident;
(b) made personally liable for the amount of tax after it becomes payable to the extent of any amount so retained, or which should have been so retained, under paragraph (a); and
(c) indemnified for all payments that the person makes pursuant to this section.
100(2)
For the purposes of subsection (1), a person who is liable to pay money to a non-resident shall be deemed to be a person who has the control of money belonging to the non-resident, and all money due by the person to the non-resident shall be deemed to be money that comes to the person on behalf of the non-resident.
100(3)
Where the Commonwealth, a State or Territory, or an authority of the Commonwealth, a State or Territory has the receipt, control or disposal of money belonging to a non-resident, this section (other than paragraph (1)(b)) applies to and in relation to the Commonwealth, the State or the Territory, or the authority of the Commonwealth, of the State or of the Territory, as the case may be, in the same manner as it applies to and in relation to any other person.
100(4)
In this section, "tax" includes additional tax under section 93.
Division 2 - Collection by instalments Subdivision A - General SECTION 101 INTERPRETATION 101(1) ["tax" includes instalment]
In sections 93, 100 and 129, but not in any other section of this Act, "tax" includes an instalment of tax payable under this Division.
In sections 100 and 129, but not in any other section of this Act, "tax" includes additional tax payable under subsection 112(4).
The ascertainment of the notional tax amount, or the amount of any instalment of tax, in accordance with this Division shall not be deemed to be an assessment within the meaning of any of the provisions of this Act.
101(4)(Repealed by No 91 of 2000)
SECTION 102 102 LIABILITY TO PAY INSTALMENTS OF TAX
For the purpose of securing generally the more expeditious collection of tax, an employer is liable to pay, in accordance with this Division, 4 instalments of tax in respect of each year of tax.
Subject to this Division, the 4 instalments of tax payable in respect of a year of tax are due and payable as follows:
| When instalments of tax are due and payable | ||
| Item | This instalment … | is due and payable on: |
| 1 | first instalment | 21 July in that year of tax |
| 2 | second instalment | 21 October in that year of tax |
| 3 | third instalment | 21 January in that year of tax |
| 4 | fourth instalment | 21 April in the next year of tax |
103(2)
Despite subsection (1), and subject to this Division, if an employer is a deferred BAS payer on the day specified as the day on which an instalment is due and payable under subsection (1), that instalment is instead due and payable as specified in the following table:
| When instalments of tax are due and payable | ||
| Item | If subsection (2) applies to this instalment: | The instalment is due and payable on: |
| 1 | first instalment | 28 July in that year of tax |
| 2 | second instalment | 28 October in that year of tax |
| 3 | third instalment | 28 February in that year of tax |
| 4 | fourth instalment | 28 April in the next year of tax |
Note:
For provisions about collection and recovery of instalments of fringe benefits tax, see Part 4-15 in Schedule 1 to the Taxation Administration Act 1953.
SECTION 104 104 NOTICE OF THE AMOUNT OF AN INSTALMENT
An employer must notify the Commissioner, in the approved form, of the amount of an instalment on or before the day on which the instalment is due and payable.
An employer is entitled to a credit when the Commissioner:
(a) makes an assessment of the tax payable by the employer for a year of tax; or
(b) determines that no tax is payable.
Note:
The employer's first return for the year of tax is treated as an assessment: see section 72.
105(2) [Calculation of credit]The credit is equal to:
reduced by:
Note:
An employer can claim a credit under section 112A in some cases where the amount by reference to which an instalment is worked out reduces during the year of tax.
105(3) [Liability to pay]The making of the assessment or determination, and the resulting credit entitlement, do not affect the liability to pay an instalment.
Note:
How the credit is applied is set out in Division 3 of Part IIB of the Taxation Administration Act 1953.
(Repealed by No 178 of 1999)
(Repealed by No 178 of 1999) 108 (Repealed) SECTION 108 INSTALMENT STATEMENT
(Repealed by No 178 of 1999) Subdivision C - Working out the amount of instalments
In this Subdivision:
"employer's estimate"
, in relation to an employer, in relation to an instalment of tax in relation to a year of tax, means the amount shown in a statement by the employer under subsection 112(1) in relation to the instalment as the employer's estimate of the tax that will be payable by the employer in respect of the year of tax;
"estimated tax"
, in relation to an employer in relation to a year of tax, means the amount determined, or last determined, as the case requires, under subsection 112(2) or (3) as the estimated tax of the employer in respect of the year of tax;
GIC period
, in relation to an instalment in relation to a year of tax, has the meaning given by the following table:
| GIC period | |||
| Item | For this instalment in that year of tax: | GIC period is this period if this instalment is due and payable under subsection 103(1): | GIC period is this period if this instalment is due and payable under subsection 103(2): |
| 1 | first instalment | the period starting at the beginning of 21 July, and finishing at the end of 20 October, in the year of tax | the period starting at the beginning of 28 July, and finishing at the end of 27 October, in the year of tax |
| 2 | second instalment | the period starting at the beginning of 21 October, and finishing at the end of 20 January, in the year of tax | the period starting at the beginning of 28 October, and finishing at the end of 27 February, in the year of tax |
| 3 | third instalment | the period starting at the beginning of 21 January in the year of tax and finishing at the end of 20 April in the next year of tax | the period starting at the beginning of 28 February in the year of tax and finishing at the end of 27 April in the next year of tax |
| 4 | fourth instalment | the period starting at the beginning of 21 April, and finishing at the end of 20 May, in the next year of tax | the period starting at the beginning of 28 April, and finishing at the end of 20 May, in the next year of tax |
"penalty period"
(Repealed by Act No 11 of 1999)
relevant fraction
, in relation to an instalment, means:
(a) 0.25 for a first instalment; or
(b) 0.50 for a second instalment; or
(c) 0.75 for a third instalment; or
(d) 1.00 for a fourth instalment.
An employer's notional tax amount for a year of tax (the current year ) as at a particular time (the test time ) is worked out using the table, except as provided in subsections (3), (4) and (5).
| Working out an employer's notional tax amount | |||
| Item | In this case: | The notional tax amount is: | |
| 1 | No other item applies | the amount of the employer's tax for the most recent year of tax (the base year ) for which the Commissioner has made an assessment before the test time. | |
| 2 | Before the test time, the Commissioner has determined that no tax is payable by the employer for a year of tax, and there is no later year of tax for which the Commissioner has made an assessment of the employer's tax before the test time | nil | |
| 3 | There is no year of tax for which the Commissioner has, before the test time, made an assessment of the employer's tax or determined that no tax is payable by the employer | nil | |
| 4 | The notional tax amount would otherwise be worked out under item 1 and: | if the test time is before the prescribed day - the notional tax amount worked out under item 1; or | |
| (a) | the rate of tax declared by the Parliament for the current year is different from the rate declared for the base year; and | if the test time is on and after the prescribed day - that amount as varied in accordance with the regulations. | |
| (b) | the regulations provide for varying the notional tax amount of employers for the current year |
Note:
The employer's first return for the year of tax is treated as an assessment: see section 72.
(Repealed by No 44 of 2000)
110(3) [Determination where tax will be greater]
The Commissioner may determine that the employer's notional tax amount for the current year is such amount as the Commissioner estimates will be the tax payable by the employer for that year, if the Commissioner has reason to believe that that tax will exceed:
(a) if the notional tax amount would otherwise be worked out under item 1 or 4 of the table in subsection (1) - the amount of the employer's tax for the base year; or
(b) if the notional tax amount would otherwise be worked out under item 2 or 3 of the table in subsection (1) - nil.
Where the Commissioner makes a determination under subsection (3):
(a) the Commissioner shall cause a notice in writing to be served on the employer specifying:
(i) the notional tax amount determined by the Commissioner; and
(ii) the date on which the determination takes effect, being a date not less than 30 days after the date of service of the notice; and
(b) subject to subsection (5), the notional tax amount of the employer in respect of the year of tax is, on and after the date specified in the notice, the amount determined by the Commissioner. 110(5) [Where employer has estimated tax for year]
Where, in relation to an instalment of tax in respect of a year of tax, being an instalment that becomes due and payable after the end of a quarter, an employer has estimated pursuant to subsection 112(1) the amount of tax that will be payable in respect of that year of tax and has furnished to the Commissioner a statement in accordance with that subsection, then, on and after the last day of the quarter and until such time as there is a further application of this subsection in relation to a subsequent instalment of tax payable by the employer, the notional tax amount of the employer in respect of the year of tax is, or shall be deemed to have been, as the case requires, an amount equal to the estimated tax.
The amount of an instalment of tax of an employer for a year of tax that becomes due and payable after the end of a quarter is the amount worked out using this formula, if the amount is positive:
Otherwise, the amount of the instalment is nil.
Note:
If the notional tax amount is too small, the instalment may not be payable: see subsection (2).
111(1A)
For the purposes of the formula in subsection (1):
notional tax amount
means the employer's notional tax amount for the year of tax, as at the end of the last day of that quarter.
previous credits
means the total of any credits the employer has claimed under section 112A because of one or more instalments of tax for the same year of tax that became due and payable before that day.
previous instalments
means the total of any instalments of tax for the same year of tax that became due and payable by the employer before that day.
111(2)
An instalment of tax in respect of a year of tax that would otherwise become due and payable by an employer after the end of a quarter is not payable if:
(a) the instalment is calculated by reference to a notional tax amount ascertained under subsection 110(1); and
(b) the notional tax amount by reference to which the instalment was calculated is less than:
(i) if a determination of an amount is in force under subsection (3) in respect of the year of tax - that amount; or
(ii) in any other case - $1,000; and
(c) unless that quarter is the first quarter in the year of tax - because of one or more previous applications of this subsection, the instalment that would otherwise have become due and payable by the employer after the end of the previous quarter is not payable.
111(3)
The Commissioner may, by legislative instrument determine an amount other than $1,000 as the amount applicable for the purposes of subsection (2) in respect of a year or years of tax specified in the determination.
[ CCH Note: The amount applicable for the purposes of s 111(2) for 1991/92 and subsequent years is $3,000 (Gazette No GN 5, 6 February 1991).]
SECTION 112 ESTIMATED TAX 112(1) [Employer may estimate tax]
An employer may, not later than the date on which an instalment of tax in respect of a year of tax is due and payable or within such further period as the Commissioner allows:
(a) make an estimate of the amount of the tax (if any) that will be payable by the employer in respect of that year of tax; and
(b) furnish to the Commissioner a written statement, in the approved form, showing:
(i) the amount so estimated; and
(ii) the basis on which the estimate has been made;
unless the employer has previously furnished a statement under this subsection in relation to the instalment of tax.
Where an employer furnishes to the Commissioner, in relation to an instalment of tax, a statement under subsection (1), the estimated tax is, subject to subsection (3), an amount equal to the employer's estimate.
112(3) [Where Commissioner may substitute estimate]Where, having regard to information in returns furnished by the employer and any other information in the Commissioner's possession, the Commissioner has reason to believe that the amount of tax that will be payable by the employer in respect of the year of tax is greater than the employer's estimate:
(a) the Commissioner may estimate the amount that, in the Commissioner's opinion, should have been the amount estimated by the employer pursuant to subsection (1) in respect of that year of tax; and
(b) the estimated tax is:
(i) an amount equal to the amount of tax so estimated by the Commissioner; or
whichever is the less. 112(4)
(ii) the amount that would be the notional tax amount of the employer in respect of the year of tax if the employer had not furnished a statement under subsection (1);
(Repealed by No 44 of 2000)
112(4A)
(Repealed by No 44 of 2000)
112(5)
(Repealed by No 44 of 2000)
112(6)-(7)
(Repealed by Act No 11 of 1999)
SECTION 112A CREDIT IN CERTAIN CASES WHERE AMOUNT OF INSTALMENT IS NIL 112A(1) [Entitlement to credit]
If an amount worked out using the formula in subsection 111(1) is negative, the employer is entitled to claim a credit equal to that amount, expressed as a positive amount.
Note:
This will happen if the notional tax amount has reduced since the end of an earlier quarter because, for example:
A claim for a credit must be made in the approved form after the end of the quarter.
Note:
How the credit is applied is set out in Division 3 of Part IIB of the Taxation Administration Act 1953.
An employer is liable to pay the general interest charge under this section if:
(a) in order to determine the amount of an instalment of tax (the underpaid instalment ) of the employer for a year of tax, an amount (whether positive, negative or nil) (the actual amount ) was worked out using the formula in subsection 111(1); and
(b) because of subsection 110(5), the notional tax amount used in working out the actual amount was an estimate by the employer under subsection 112(1); and
(c) that notional tax amount is less than 90% of the employer's tax assessed for the year of tax; and
(d) that assessed tax has become due and payable.
Note:
Paragraph (1)(b) is not satisfied if the notional tax amount used in working out the actual amount was estimated tax worked out under subsection 112(3) because the Commissioner disagrees with the employer's estimate.
112B(2) [Calculation]The employer is liable to pay the charge, for each day in the GIC period, on the amount (if any) by which the actual amount is less than the amount (whether positive, negative or nil) worked out using the formula:
112B(3) [Interpretation]
For the purposes of the formula in subsection (2):
minimum tax amount
means the lesser of:
(a) the amount that, apart from subsection 110(5), would have been the notional tax amount used in working out the actual amount; and
(b) the employer's tax assessed for the year of tax.
previous credits
means the total of any credits the employer has claimed under section 112A because of one or more instalments of tax for the same year of tax that became due and payable before that day.
previous instalments
means the total of any instalments of tax for the same year of tax that became due and payable by the employer before the day on which the underpaid instalment became due and payable (or would have become due and payable if the actual amount had been positive).
The amount of the general interest charge is taken to be additional tax payable under this section.
Where, by reason of the operation of subsection 112(3), the amount payable by an employer as an instalment of tax is greater than the instalment that would have been payable if it had been ascertained by reference to the employer's estimate, the Commissioner shall cause to be served on the employer a notice in writing specifying:
(a) the amount of the increase in the instalment of tax that became payable by reason of subsection 112(3); and
(b) a date as the due date for payment of that amount, being a date not less than 14 days after the date of service of the notice;
and the amount of the increase in the instalment of tax so specified is, notwithstanding section 103, due and payable on the date so specified.
(Repealed) PART VIII - PENALTY TAX(Repealed by No 2 of 2015)
(Repealed by No 2 of 2015)
(Repealed by No 2 of 2015)
(Repealed by No 2 of 2015)
(Repealed by No 2 of 2015)
(Repealed by No 2 of 2015)
(Repealed by No 2 of 2015)
(Repealed by No 114 of 2009)
(Repealed by No 91 of 2000)
(Repealed by No 114 of 2009)
(Repealed by No 114 of 2009)
(Repealed by No 114 of 2009)
For the purposes of Part III, where an employer fails to retain, for the retention period, a statutory evidentiary document given to or made by the employer, the statutory evidentiary document shall be deemed never to have been given to or made by the employer.
For the purposes of sections 10A and 10B, where an employer fails to retain, for the retention period, statutory evidentiary documents, being log book records or odometer records maintained by or on behalf of the employer, those documents shall be deemed never to have been maintained.
For the purposes of subparagraph 24(1)(c)(ia) or (i), where an employer fails to retain, for the retention period, statutory evidentiary documents, being substitute documentary evidence maintained by or on behalf of the employer, those documents shall be deemed never to have been maintained.
(a) a statutory evidentiary document (in this subsection referred to as the "original document" ) in relation to an employer is lost or destroyed; and
(b) the employer has a document (the substitute document ) that:
(i) is a copy of the original document; or
(ii) properly records all of the matters as set out in the original document and was in existence when the original document was lost or destroyed;
the substitute document shall be deemed, for the purposes of this section, to be, and to have been at all times after the original document was lost or destroyed, the original document.
(a) a statutory evidentiary document in relation to an employer is lost or destroyed; and
(b) the Commissioner is satisfied that:
(i) the employer took all reasonable precautions to prevent loss or destruction of the document; and
(ii) (Omitted by No 145 of 1995)
(iii) subsection (4) does not apply in relation to the document; and
(iv) (Omitted by No 145 of 1995)
subsection (1), (2) or (3), as the case requires, does not apply, and shall be deemed not to have applied, at any time after the document was lost or destroyed.
(a) a provision of this Act makes provision for a person to give a statutory evidentiary document (in this subsection referred to as the "original document" ) to an employer;
(b) the original document is lost or destroyed before it is given to the employer; and
(c) the Commissioner is satisfied that:
(i) the person took all reasonable precautions to prevent loss or destruction of the document; and
(ii) (Omitted by No 145 of 1995)
(iii) the person does not have a document that:
(A) is a copy of the original document; or
(B) properly records all of the matters set out in the original document and was in existence when the original document was lost or destroyed; and
(iv) (Omitted by No 145 of 1995)
that provision of this Act has effect as if the original document had been given by the person to the employer and had been retained by the employer for the retention period.
Nothing in section 74 prevents the amendment of an assessment for the purpose of giving effect to this section.
SECTION 123AA ALTERNATIVES TO STATUTORY EVIDENTIARY DOCUMENTS 123AA(1)For the purposes of the operation of this Act in relation to a year of tax, a person who is an employer is taken to keep and retain a statutory evidentiary document at a time if: (a) a determination under subsection (2) is in force at that time; and (b) the determination specifies the year of tax; and (c) the statutory evidentiary document is in a class of statutory evidentiary documents specified in the determination for the year of tax; and (d) the person is in a class of persons specified in the determination for that class of statutory evidentiary documents for the year of tax; and (e) the person keeps and retains, at that time, alternative documents or records of a kind specified in the determination for that class of persons for that class of statutory evidentiary documents for the year of tax.
123AA(2)
The Commissioner may, by legislative instrument, make a determination that specifies all of the following: (a) one or more years of tax; (b) one or more classes of statutory evidentiary documents for a specified year of tax; (c) one or more classes of persons for a specified class of statutory evidentiary documents for a specified year of tax; (d) one or more kinds of alternative documents or records for a specified class of persons for a specified class of statutory evidentiary documents for a specified year of tax.
123AA(3)
For the purposes of paragraph (2)(d), the determination may specify a kind of documents or records only if the Commissioner is reasonably satisfied that the kind of documents or records is, for the purposes of this Act, an adequate alternative to the class of statutory evidentiary documents for which it is specified.
If a provision requires a business use percentage or an estimate of the number of business kilometres to be specified, it must be specified in writing on or before the declaration date for the FBT year.
The substantiation rules do not apply in relation to a benefit if the nature and quality of evidence that a person has satisfies the Commissioner that the taxable value of the benefit is not greater than the amount specified in the taxpayer's return for the FBT year as the taxable value of that benefit.
123B(2)
(Omitted by No 145 of 1995)
123B(3)
The Commissioner may only make a decision under subsection (1): (a) in the course of reviewing on the Commissioner's own motion the affairs of the employer; or (b) in considering an objection against the assessment of the employer of the year of tax; or (c) in considering whether to make an amendment of the assessment of the employer of the year of tax in response to a request made by the employer before the commencement of this section.
123B(4)
This section does not apply to a declaration made for the purposes of this Act.
123B(5)
(Repealed by No 38 of 2024)
123B(6)
This section applies to a benefit provided before, at or after the commencement of this section.
The Commissioner must endorse an entity as a public benevolent institution if:
(a) the entity is entitled to be endorsed as a public benevolent institution (see subsection (2)); and
(b) the entity has applied for that endorsement in accordance with Division 426 in Schedule 1 to the Taxation Administration Act 1953.
123C(2)
An entity is entitled to be endorsed as a public benevolent institution if the entity:
(a) is a registered public benevolent institution; and
(b) has an ABN; and
(c) is not an employer in relation to which step 2 of the method statement in subsection 5B(1E) applies.
123C(3)
(Repealed by No 169 of 2012)
123C(4)
(Repealed by No 169 of 2012)
123C(5)
(Repealed by No 169 of 2012)
The Commissioner must endorse an entity as a health promotion charity if:
(a) the entity is entitled to be endorsed as a health promotion charity (see subsection (2)); and
(b) the entity has applied for that endorsement in accordance with Division 426 in Schedule 1 to the Taxation Administration Act 1953.
123D(2)
An entity is entitled to be endorsed as a health promotion charity if the entity:
(a) is a registered health promotion charity; and
(b) has an ABN; and
(c) is not an employer in relation to which step 2 of the method statement in subsection 5B(1E) applies.
SECTION 123E ENDORSEMENT BY COMMISSIONER AS REGISTERED CHARITY (OTHER THAN PUBLIC BENEVOLENT INSTITUTION OR HEALTH PROMOTION CHARITY) 123E(1)
The Commissioner must endorse an entity as a registered charity covered by table item 1 in subsection 65J(1) if:
(a) the entity is entitled to be endorsed as a registered charity covered by table item 1 in subsection 65J(1) (see subsection (2)); and
(b) the entity has applied for that endorsement in accordance with Division 426 in Schedule 1 to the Taxation Administration Act 1953.
123E(2)
An entity is entitled to be endorsed as a registered charity covered by table item 1 in subsection 65J(1) if the entity:
(a) is a registered charity covered by column 1 of that table item; and
(aa) satisfies the special conditions set out in that table item (other than the condition relating to endorsement under subsection (1) of this section); and
(b) has an ABN.
PART XI - MISCELLANEOUS SECTION 124 ASSESSMENTS 124(1) [Assessment where insufficient information]
Where the Commissioner does not have sufficient information to make an assessment of the fringe benefits taxable amount of an employer of a year of tax, that fringe benefits taxable amount shall be deemed, for the purposes of making an assessment under this Act, to be such amount as, in the opinion of the Commissioner, might reasonably be expected to be that fringe benefits taxable amount.
124(2) [Determination, etc at time of assessment]In determining whether an assessment is correct, any determination, opinion or judgment of the Commissioner made, held or formed in connection with the consideration of an objection against the assessment shall be deemed to have been made, held or formed when the assessment was made.
SECTION 124A ASSESSMENT ON ASSUMPTION 124A(1) [Assuming foreign earnings will be exempt]Subject to subsection (4), where:
(a) an employee of an employer has derived eligible foreign remuneration or foreign earnings during a year of tax; and
(b) at the time of making an assessment of the fringe benefits taxable amount of the employer of the year of tax, it is reasonable to assume that, at a later time, circumstances will exist because of which that eligible foreign remuneration or foreign earnings, as the case may be, will be exempt income by virtue of section 23AF or 23AG of the Income Tax Assessment Act 1936;
this Act applies as if those circumstances existed at the time of making that assessment.
Subject to subsection (4), where, at the time of making an assessment of the fringe benefits taxable amount of an employer of a year of tax, it is reasonable to assume that, at a later time, circumstances will exist because of which a benefit provided in respect of the employment of an employee of the employer in, or in respect of, the year of tax will be an exempt benefit by virtue of section 58B, 58C or 58D, this Act applies as if those circumstances existed at the time of making that assessment.
124A(3) [Assuming reduction of temporary accommodation fringe benefit will apply]Subject to subsection (4), where:
(a) a fringe benefit (in this subsection called the ``temporary accommodation fringe benefit'' ) of a kind referred to in paragraph 61C(1)(a) is provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer; and
(b) at the time of making an assessment of the fringe benefits taxable amount of the employer of the year of tax, it is reasonable to assume that, at a later time, circumstances will exist because of which section 61C will apply to reduce the taxable value of the temporary accommodation fringe benefit in relation to the year of tax by a particular amount;
this Act applies as if those circumstances existed at the time of making that assessment.
124A(4) [Amendment of assessment]Where this Act has, by virtue of subsection (1), (2) or (3), applied on the basis that a circumstance that did not exist at the time of making an assessment would exist at a later time and the Commissioner, after making the assessment, becomes satisfied that that circumstance will not exist, then, notwithstanding section 74, the Commissioner may amend the assessment at any time for the purposes of ensuring that this Act shall be taken always to have applied on the basis that that circumstance did not exist.
(Repealed by No 91 of 2000)
(Repealed by No 91 of 2000)
(Repealed by No 2 of 2015)
(Repealed by No 2 of 2015)
(Repealed by No 2 of 2015)
(Repealed by No 2 of 2015)
The following provisions of this section apply in relation to a person (in this section referred to as the "representative" ) being:
(a) a person who, as agent for an employer, provides or arranges for the provision of benefits that are fringe benefits in relation to the employer;
(b) an employer in the capacity of a trustee, being an employer in relation to whom fringe benefits are provided; or
(c) a trustee in respect of the affairs of an employer where the trustee, as trustee, provides or arranges for the provision of benefits that are fringe benefits in relation to the employer.
129(2)
The representative:
(a) shall furnish returns in relation to the fringe benefits; and
(b) is liable to any tax payable in respect of the provision of the fringe benefits;
but only in the capacity of agent or trustee, as the case requires, and each such return shall be separate and distinct from any other return furnished or lodged by the representative.
129(3)
The representative is, by force of this section:
(a) authorised and required to retain from time to time any money that comes to the representative in the capacity as agent for the other person or trustee of the trust estate, or so much of it as is sufficient to pay the amount of tax;
(b) made personally liable for the amount of tax after it becomes payable to the extent of any amount that the representative is required to retain under paragraph (a); and
(c) indemnified for all payments that the representative makes pursuant to this section.
129(4)
For the purposes of ensuring payment of the amount of tax, the Commissioner has the same remedies against attachable property of any kind vested in, under the control or management of, or in the possession of, the representative as the Commissioner would have against the property of any other person in respect of an amount of tax payable by the other person.
129(5)
In this section, unless the contrary intention appears, "tax" includes additional tax under section 93.
130 (Repealed) SECTION 130 RECOVERY OF TAX PAID ON BEHALF OF ANOTHER PERSON
(Repealed by No 179 of 1999) 131 (Repealed) SECTION 131 RIGHT OF CONTRIBUTION
(Repealed by No 179 of 1999) SECTION 132 RECORDS TO BE KEPT AND PRESERVED 132(1) [Retention for 5 years]
(a) keep records that record and explain all transactions and other acts engaged in by the employer or any other person that are relevant for the purpose of ascertaining the employer's liability under this Act; and
(b) retain those records, and any records given to the employer under paragraph (2)(b), for a period of 5 years after the completion of the transactions or acts to which they relate.
Penalty: 30 penalty units.
Note:
There is an exemption from the requirements of this subsection in certain cases: see Part XIA (Record keeping exemption).
Where an associate of an employer provides, or arranges for the provision of, fringe benefits to, or to associates of, employees of the employer, the associate shall:
(a) keep records that record and explain all transactions and other acts engaged in by the associate or any other person in respect of the provision of those fringe benefits, being transactions or acts that are relevant for the purpose of ascertaining the employer's liability under this Act;
(b) give to the employer a copy of the records, so far as they relate to a year of tax, not later than 21 days after the end of that year of tax; and
(c) retain those records for a period of 5 years after the completion of the transactions or acts to which they relate.
Penalty: 30 penalty units.
A person who is required by this section to keep records shall keep the records:
(a) in writing in the English language or so as to enable the records to be readily accessible and convertible into writing in the English language; and
(b) so as to enable the employer's liability under this Act to be readily ascertained.
Penalty: 30 penalty units.
Nothing in this section shall be taken to require a person (in this subsection referred to as the "record keeper" ) to keep a record of information relating to a transaction or act engaged in by another person if:
(a) where the transaction or act was entered into or done under an arrangement to which the record keeper was a party:
(i) the record keeper made all reasonable efforts:
(A) to ascertain whether the transaction had been entered into or the act had been done; and
(B) to obtain the information; and
(ii) did not know, and could not reasonably be expected to have known, the information; or
(b) in any other case - the record keeper did not know, and could not reasonably be expected to have known, the information. 132(5) [When retention not required]
Nothing in this section shall be taken to require a person to retain records where:
(a) the Commissioner has notified the person that retention of the records is not required; or
(b) the person is a company that has gone into liquidation and been finally dissolved.
An offence under this section is an offence of strict liability.
Note 1:
For strict liability, see section 6.1 of the Criminal Code.
Note 2:
There is an administrative penalty if you do not keep or retain records as required by this section: see section 288-25 in Schedule 1 to the Taxation Administration Act 1953.
Note 3:
See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
SECTION 132A WRITTEN EVIDENCE NOT AVAILABLE WHEN RETURN LODGED 132A(1) [Application of section]
(a) a provision of this Act requires documentary evidence of an expense to be given to, or obtained by, an employer before the declaration date for an employer for an FBT year; and
(b) at the date of lodgment of the employer's return of the fringe benefits taxable amount for the FBT year:
but:
(i) the employer has not been given, or has not obtained, the documentary evidence;
132A(2) [Evidence not obtained within reasonable time]
(ii) the employer has good reason to expect that he or she will be given, or will obtain, that evidence within a reasonable time.
(a) the employer may complete his or her return as if the documentary evidence had been given to, or obtained by, him or her by the date of lodgment; and
(b) if the evidence is given to, or obtained by, the employer within a reasonable time - this Act applies as if the documentary evidence had been given to, or obtained by, the employer before the declaration date; and
(c) if the evidence is not given to, or obtained by, the employer within a reasonable time - the employer must notify the Commissioner in writing that the evidence has not been obtained.
(Repealed by No 67 of 2003) SECTION 134 134 SERVICE ON PARTNERSHIPS AND ASSOCIATIONS
Service, whether by post or otherwise, of a notice or document on a member of a partnership or on a member of the committee of management of an unincorporated association or other body of persons shall be deemed, for the purposes of this Act, to constitute service of the notice or other document on each member of the partnership or each member of the association or other body of persons, as the case may be. SECTION 135 135 REGULATIONS
The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act;
and, in particular, may make regulations prescribing penalties not exceeding a fine of 5 penalty units for offences against the regulations.
Basically, this Part provides that, if certain conditions are satisfied, an employer need not keep or retain most of the records otherwise required to be kept and retained under subsection 132(1).
135A(2) [Use of base year]If the conditions are satisfied, the employer's FBT liability is generally worked out using the aggregate fringe benefits amount from a previous FBT year (the base year ) instead of the current FBT year.
This section has 2 conditions that must be satisfied for Division 3 to apply to an employer for an FBT year (the current year ).
135B(2) First condition: base year established.Either of the following must be true:
(a) the FBT year immediately before the current year was a base year (see section 135C) of the employer; or
(b) some other FBT year before the current year was a base year of the employer and section 135G applied to the employer for every FBT year after that base year but before the current year. 135B(3) Second condition: no Commissioner's notice in previous year.
The employer must not have been given a paragraph 135E(2)(c) notice by the Commissioner during the FBT year immediately before the current year.
An FBT year is a base year of an employer if: (a) the employer carries on business operations throughout the FBT year; and (b) the employer lodges an FBT return for the FBT year within the time allowed for doing so under section 68; and (c) as at the declaration date for the FBT year, the employer has kept and retained all the records that are (ignoring section 135E) required to be kept and retained under subsection 132(1) in relation to the employer's liability under this Act for the FBT year; and (d) the employer's aggregate fringe benefits amount for the FBT year does not exceed the exemption threshold (see subsections (2) and (3)) for the year; and (e) section 135G does not apply to the employer for the FBT year (that section allows employers to work out their liability to pay tax using their aggregate fringe benefits amount from a previous base year, instead of the current FBT year).
135C(2) Exemption threshold for 1996-97 FBT year.
The exemption threshold for the FBT year beginning on 1 April 1996 is $5,000.
135C(3) Exemption threshold for later FBT years.The exemption threshold for a later FBT year is the amount worked out using the formula:
| Exemption threshold × Indexation factor |
where:
exemption threshold
is the exemption threshold for the previous FBT year.
indexation factor
is the number worked out, to 3 decimal places (rounding up if the fourth decimal place is 5 or more), under subsection (4) for the later FBT year.
[ CCH Note: The exemption threshold is announced annually by the Commissioner by way of Taxation Determination. The thresholds are as follows:
| FBT year ending 31 March | Exemption threshold |
| 2025 | $10,334 |
| 2024 | $9,786 |
| 2023 | $9,181 |
| 2022 | $8,923 |
| 2021 | $8,853 |
| 2020 | $8,714 |
| 2019 | $8,552 |
| 2018 | $8,393 |
| 2017 | $8,286 |
| 2016 | $8,164 |
| 2015 | $7,965 |
| 2014 | $7,779 |
| 2013 | $7,642 |
| 2012 | $7,391 |
| 2011 | $7,190 |
| 2010 | $7,063 |
| 2009 | $6,766 |
| 2008 | $6,614 |
| 2007 | $6,391 |
| 2006 | $6,223 |
| 2005 | $6,084 |
| 2004 | $5,919 |
| 2003 | $5,747 |
| 2002 | $5,505 |
| 2001 | $5,268 |
| 2000 | $5,191 |
| 1999 | $5,145 |
| 1998 | $5,130 |
| 1997 | $5,000] |
The indexation factor for an FBT year is the greater of:
(a) 1; and (b) the number worked out using the formula:
|
Sum of index numbers for quarters in most recent December year
Sum of index numbers for quarters in earlier December year |
In subsection (4):
earlier December year
means the period of 12 months immediately before the most recent December year.
index number,
for a quarter, means the All Groups Consumer Price Index number for the quarter (being the weighted average of the 8 capital cities) first published by the Australian Statistician for the quarter.
most recent December year
means the period of 12 months ending on 31 December immediately before the FBT year for which the threshold is being worked out.
135C(6) Disregard new publications.
If the Australian Statistician publishes an index number for a quarter in substitutionfor an index number previously published for that quarter, disregard the later publication.
Changed index reference period
135C(7)
However, if the Australian Statistician changes the index reference period for the Consumer Price Index, take into account only the index numbers published in terms of the new index reference period.
135C(8) Rounding down to whole dollar amount.
Round the subsection (3) result down to the nearest whole dollar (if the result is not already a number of whole dollars).
This Division has the consequences that apply if both conditions in section 135B are satisfied in relation to an employer for an FBT year (the current year ).
Subsection 132(1) (which requires certain records to be kept and retained) does not apply to the employer in relation to the employer's liability under this Act for the current year.
135E(2) Records the employer must still keep.However, subsection 132(1) still applies in relation to the employer's liability under this Act for the current year so far as it relates to the following:
(a) copies of records that an associate of the employer gives the employer under paragraph 132(2)(b);
(b) benefits provided at a time when the employer was:
(i) a government body (see subsection 136(1)); or
(ii) a person all of whose income is exempt from income tax;
(c) benefits provided after the Commissioner has given the employer a written notice under this paragraph, during the current year, requiring the employer to resume keeping records.
The period in paragraph 132(1)(b) for retaining records relating to the employer's liability under this Act in respect of the employer's most recent base year is extended (or further extended) to 5 years after the end of the current year (if the period is not already that long).
The employer's liability to pay tax under section 66 is worked out using the employer's aggregate fringe benefits amount for the employer's most recent base year, instead of for the current year.
Section 135G does not apply if the employer chooses to work out his or her liability using the employer's aggregate fringe benefits amount for the current year.
Section 135G does not apply if the employer is:
(a) a government body (see subsection 136(1)); or
(b) a person all of whose income is exempt from income tax;
at any time during the current year.
Section 135G does not apply if the employer's aggregate fringe benefits amount for the current year is more than 20% greater than it was for the employer's most recent base year (unless the difference is $100 or less).
Example:
The aggregate fringe benefits amount was $100 for the most recent base year and $180 for the current year. This is 80% greater - well over the 20% limit. But section 135G can still apply because the difference is only $80.
135K(2) Special rules for applying this test.
In working out, for the purposes of subsection (1), the employer's aggregate fringe benefits amount for the current year, apply the following rules.
135K(3) Section 123 disregarded.Disregard the effect of section 123 (which deals with failing to retain statutory evidentiary documents).
135K(4)(Repealed by No 62 of 2011)
135K(5) Special rule for car fringe benefits - cost basis method used in earlier year.
(a) for the employer's first car benefit year (if any - see subsection (6)), the employer used the method in section 10 (cost basis) to determine the taxable value of one or more car fringe benefits relating to a particular car; and
(b) the employer uses the same method for that car, or for a car provided as a replacement of that car, for the current year; and
(c) the business use percentage (see subsection 136(1)) for the current year is not lower than the business use percentage for the first car benefit year by more than 20 percentage points;
the employer may, in using that same method, use the business use percentage for the car from the first car benefit year, instead of from the current year.
135K(6) Meaning of first car benefit year .In subsections (4) and (5), the employer's first car benefit year is the first FBT year (if any) in the period:
(a) beginning with the employer's most recent base year; and
(b) ending with the FBT year immediately before the current year;
during which one or more car fringe benefits were provided in relation to the employer.
This section applies if the employer does not carry on business operations throughout the current year.
135L(2) Pro-rata reduction of base year aggregate fringe benefits amount.For the purposes of sections 135G and 135K, the employer's aggregate fringe benefits amount for the employer's most recent base year is replaced by the amount worked out using the following formula:
| Aggregate fringe
benefits amount |
× | Number of days in the current year during
which the employer carried on business operations Number of days in the current year |
The following is a simplified outline of this Part:
An employee's reportable fringe benefits total for a year of income is the sum of each of the employee's reportable fringe benefits amounts for the year of income (see section 135N). (The total is taken into account under other Acts; for example in working out some income tax rebates, Medicare levy surcharge and superannuation surcharge and whether the employee must make a repayment of a debt under the Higher Education Support Act 2003.)
An employee's reportable fringe benefits amount from an employer is generally the grossed-up value of the employee's individual fringe benefits amount from that employer (see section 135P).
Special rules apply for working out the employee's reportable fringe benefits amount in respect of the employee's employment if the benefits provided in respect of the employment include exempt benefits under section 57A or 58 (about employment with public benevolent institutions, certain hospitals, public ambulance services, health promotion charities and bodies providing care for sick, elderly or disadvantaged persons) (see section 135Q).
An employee's reportable fringe benefits total for a year of income is the sum of each of the employee's reportable fringe benefits amounts for the year of income in respect of the employee's employment by an employer.
Example:
Sylvia employs Angela, who has a reportable fringe benefits amount of $3,000 for the 1999-2000 year of income from her employment by Sylvia.
Angela is also an employee of Geoff, and has a reportable fringe benefits amount of $4,000 for that year of income from her employment by Geoff.
Angela's reportable fringe benefits total for the 1999-2000 year of income is $7,000.
Does an employee have a reportable fringe benefits amount?
135P(1)
An employee has a reportable fringe benefits amount for a year of income in respect of the employee's employment by an employer if the employee's individual fringe benefits amount for the year of tax ending on 31 March in the year of income in respect of the employee's employment by the employer is more than $2,000.
Example 1:
On 31 May 2007, Sylvia waives a debt of $2,545 that her employee Angela owes her, thus providing Angela with a debt waiver fringe benefit with a taxable value of $2,545 for the year of tax ending on 31 March 2008. Angela has a reportable fringe benefits amount for the year of income ending on 30 June 2008 in respect of her employment by Sylvia.
Example 2:
On 1 March 2008, Angela's employer Neil waives a debt of $1,900 Angela owes him, providing Angela with a debt waiver fringe benefit with a taxable value of $1,900 for the year of tax ending on 31 March 2008. However, he does not provide any other fringe benefits for that year of tax in respect of her employment, so Angela does not have a reportable fringe benefits amount for the year of income ending on 30 June 2008 in respect of her employment by Neil.
Size of the reportable fringe benefits amount
135P(2)
The reportable fringe benefits amount is the amount worked out using the formula:
| Individual fringe
benefits amount |
× | 1 | ||
| 1 − Rate of tax for the year of tax |
where:
individual fringe benefits amount
is the employee's individual fringe benefits amount for the year of tax in respect of the employee's employment by the employer.
Exempt car benefits for zero or low emissions vehicles are included
135P(3)
In working out the employee's individual fringe benefits amount for the purposes of this section, disregard section 8A (Exempt car benefits: zero or low emissions vehicles).
SECTION 135Q REPORTABLE FRINGE BENEFITS AMOUNT FOR SOME EMPLOYEES OF CERTAIN INSTITUTIONS 135Q(1) Overview.
This section explains how to work out whether an employee has a reportable fringe benefits amount for a year of income in respect of the employee's employment by an employer described in section 57A or 58, and the size of that amount, if:
(a) a benefit is provided in respect of the employee's employment by the employer; and (b) the benefit is an exempt benefit because of one of those sections; and (c) apart from those sections and section 8A, the benefit would be a fringe benefit relating to the employee, the employer and the year of tax ending on 31 March in the employee's year of income.Note:
Section 57A deals with public benevolent institutions, certain registered charities, employers of employees connected with certain hospitals and employers of employees connected with public ambulance services. Section 58 deals with persons employed by government bodies, religious institutions and non-profit companies to care for the elderly or disadvantaged. Section 8A exempts car benefits for zero or low emissions vehicles.
The employee has a reportable fringe benefits amount (worked out under subsection (4)) for the year of income in respect of the employee's employment by the employer if the sum of the following is more than $2,000:
(a) the employee's individual fringe benefits amount (if any) for the year of tax ending on 31 March in the year of income in respect of the employee's employment by the employer; (b) the employee's individual quasi-fringe benefits amount for the year of tax ending on 31 March in the year of income in respect of the employee's employment by the employer.Note:
An employee of an employer described in section 57A will not have an individual fringe benefits amount from that employer, because all benefits provided in respect of employment by that employer are exempt benefits.
The employee's individual quasi-fringe benefits amount is the amount that would be the employee's individual fringe benefits amount for the year of tax in respect of the employee's employment by the employer if:
(a) each benefit described in subsection (1) in relation to the employee, employer and year of tax were a fringe benefit; and (b) there were no other fringe benefits relating to the employee, the employer and the year of tax.Note:
Section 5E explains how to work out the employee's individual fringe benefits amount for the year of tax.
135Q(4) Size of the reportable fringe benefits amount.The reportable fringe benefits amount is the amount worked out using the formula:
where:
individual fringe benefits amount
is the employee's individual fringe benefits amount (if any) for the year of tax in respect of the employee's employment by the employer.
individual quasi-fringe benefits amount
is the employee's individual quasi-fringe benefits amount for the year of tax in respect of the employee's employment by the employer.
rate of tax
is the rate of tax for the year of tax.
This section has effect despite section 135P.
This Part applies in relation to the year of tax starting on 1 April 2001 and later years of tax.
(a) a State; or
(b) the Australian Capital Territory; or
(c) the Northern Territory;
may nominate an eligible State or Territory body for the purposes of this Part.
135S(2) Form and content etc. of nomination.(a) must be in the approved form; and
(b) must specify the first year of tax in relation to which the nomination is to have effect; and
(c) may specify that a class or classes of employees are to be taken to have a sufficient connection with the body for the purposes of subsection 135U(3); and
(d) must be given to the Commissioner on or before 21 May in the year of tax specified under paragraph (b). 135S(3) When nomination has effect.
Subject to subsection (5), the nomination has effect in relation to the body in relation to the first year of tax as specified in the nomination and in relation to all later years of tax.
135S(4) Avoidance of doubt.(a) the State or Territory may nominate more than one eligible State or Territory body; and
(b) the State or Territory may make nominations at different times (including in different years of tax); and
(c) if the State or Territory nominates more than one eligible State or Territory body, it need not specify the same first year of tax for them. 135S(5) Variation or revocation of nomination.
The nomination may be varied or revoked, but a variation or revocation:
(a) must be in the approved form; and
(b) must specify the first year of tax in relation to which the variation or revocation is to have effect; and
(c) must be given to the Commissioner on or before 21 May in that first year of tax. 135S(6) Nominated State or Territory bodies.
For each year of tax during which the nomination has effect in relation to an eligible State or Territory body, the body is a nominated State or Territory body .
Each of the following is an eligible State or Territory body :
(a) a Department within the meaning of subsection 3(1) of the Government Sector Employment Act 2013 (NSW);
(b) a public service body within the meaning of subsection 4(1) of the Public Administration Act 2004 (Vic.);
(c) a department within the meaning of section 7 of the Public Service Act 2008 (Qld);
(d) a department within the meaning of section 3 of the Financial Management Act 2006 (WA) as extended by section 5 of that Act;
(e) a subsidiary body as defined in paragraphs (b) and (c) of the definition of that term in subsection 60(1) of the Financial Management Act 2006 (WA);
(f) an administrative unit within the meaning of subsection 3(1) of the Public Sector Act 2009 (SA);
(g) a Government department within the meaning of subsection 3(1) of the State Service Act 2000 (Tas.);
(h) a directorate as defined in the Dictionary of the Financial Management Act 1996 (ACT);
(i) an Agency within the meaning of subsection 3(1) of the Financial Management Act 1995 (NT);
(j)-(k) (Repealed by No 8 of 2019)
(l) a department of a Parliament of a State;
(m) a department of a Legislative Assembly of a Territory.
[ CCH Note: S 135T(1) was amended by No 8 of 2019, s 3 and Sch 8 item 24, by substituting para (a) to (i) and repealing para (j) and (k). The substitution of para (a) to (i) has been adjusted to include "1995" after "Financial Management Act" in para (i), in line with an editorial change made by the Federal Register of Legislation under the Legislation Act 2003.]
135T(2)
However, a government body that pays, or is liable to pay, salary or wages is not an eligible State or Territory body .
135T(3)
The regulations may make modifications to subsection (1).
135T(4)
(Repealed by No 46 of 2011)
Subject to subsection (4), a nominated State or Territory body, instead of the governing body otherwise applicable, is taken, for the purposes of the Act, to be the employer of each employee of the State or Territory that has a sufficient connection with the body.
135U(2) Meaning of sufficient connection.An employee of the State or Territory has a sufficient connection with the body if the employee performs his or her duties of employment wholly or principally in the body.
135U(3) [Sufficient connection]An employee of the State or Territory is taken to have a sufficient connection with the body if:
(a) the employee does not perform his or her duties of employment wholly or principally in any other nominated State or Territory body; and
(b) the employee is of a class of employees that the State or Territory has specified under paragraph 135S(2)(c) is to be taken to have a sufficient connection with the body. 135U(4) Obligations etc. still fall on State or Territory.
Any right that would be conferred, or obligation that would be imposed, on the nominated State or Territory body as a consequence of subsection (1) is instead conferred or imposed on the State or the Territory.
135U(5) Other consequences.Also, for the purposes of this Act:
(a) the nominated State or Territory body is taken to be a company; and
(b) the following are taken to be companies related to the nominated State or Territory body:
(i) each other nominated State or Territory body of the State or Territory concerned; and
(ii) the State or Territory concerned; and
(iii) each authority of the State or Territory that is not a related company of the nominated State or Territory body under subparagraph (i) or (ii); and
(c) the nominated State or Territory body is taken to be a government body. 135U(6) Where nominated State or Territory body ceases to exist.
If the nominated State or Territory body ceases to exist during a year of tax:
(a) the State or Territory is taken, from the time the body ceases to exist, to be the employer of all employees who had a sufficient connection with the body immediately before it ceased to exist; and
(b) the State or Territory is taken to have revoked the nomination of the body, with effect from the start of the next year of tax.
This section applies if a State or Territory does any one or more of the following under section 135S:
(a) makes one or more nominations;
(b) varies one or more nominations;
(c) revokes one or more nominations;
with effect from the start of the same year of tax (the year of the change ).
135V(2) State or Territory to apportion prior year's assessed tax for instalment purposes.If this section applies, the State or Territory must, in accordance with this section, specify the amounts of the tax that are to be taken for the purposes of subsection 110(1) to be assessed in respect of the following in respect of the year of tax (the prior year of tax ) immediately preceding the year of the change:
(a) each body that is a nominated State or Territory body of the State or Territory for the year of the change (even if that year is not the first year of tax for that body);
(b) the State or Territory. 135V(3) [Summation of amounts]
The sum of the amounts specified under subsection (2) must equal the sum of the tax that was assessed in respect of the following in respect of the prior year of tax:
(a) the State or Territory;
(b) if there were nominated State or Territory bodies of the State or Territory for the prior year of tax - those bodies. 135V(4) Form etc. of apportionment.
(a) specify the amounts after it makes the last of the nominations, variations or revocations; and
(b) do so in the approved form; and
(c) give the approved form to the Commissioner on or before 21 May in the year of the change. 135V(5) Effect of apportionment.
For the purposes of subsection 110(1), the amounts specified in the approved form have effect to replace the amounts that would otherwise be the tax assessed for the prior year of tax in respect of the nominated State or Territory bodies and the State or Territory.
135V(6) Consequences of failure to apportion.If the requirements of this section are not complied with:
(a) any making, variation or revocation of a nomination to which this section applies has no effect in relation to any year of tax; and
(b) all existing nominations of the State or Territory under section 135S cease to have effect at the start of the year of the change; and
(c) the amount of the tax that is taken for the purposes of subsection 110(1) to have been assessed in respect of the State or Territory in respect of the prior year of tax is equal to the sum of the amounts of tax assessed in respect of that year of tax in respect of the following:
(i) the State or Territory;
(ii) if there were nominated State or Territory bodies for that year of tax - those bodies.
If a nominated State or Territory body ceases to exist during a year of tax (other than because of subsection 135V(6)), then, for the purposes of subsection 110(1), the amount of the tax that was assessed, in respect of the immediately preceding year of tax in respect of the State or Territory that nominated the body, is taken to be an amount worked out using the following formula:
| Amount
actually assessed |
+ | Notional tax
amount of the State or Territory body |
− | Previous
instalments by the State or Territory body |
− | Previous credits of
the State or Territory body |
where:
amount actually assessed
means the amount of the tax assessed in respect of the State or Territory in respect of the immediately preceding year of tax.
notional tax amount of the State or Territory body
means the notional tax amount of the nominated State or Territory body in respect of the year of tax, as at the end of the last day of the last quarter before the body ceased to exist.
previous credits of the State or Territory body
means the total of any credits claimed under section 112A in relation to one or more instalments of tax of the nominated State or Territory body for that year of tax.
previous instalments by the State or Territory body
means the total of any instalments of tax of the nominated State or Territory body for that year of tax that became due and payable before it ceased to exist.
The object of this section is:
(a) to ensure that the calculation of the taxable value of certain fringe benefits is not affected where continuity in the fulfilment of certain record-keeping provisions is broken solely because of a transitional event; and
(b) to preserve the character of certain benefits where that character would otherwise be lost solely because of a transitional event. 135X(2) Meaning of transitional event.
A transitional event occurs if:
(a) a State or Territory makes a nomination under section 135S; or
(b) a State or Territory varies a nomination under section 135S; or
(c) a State or Territory revokes a nomination under section 135S; or
(d) a nominated State or Territory body ceases to exist. 135X(3) Agreement about consequences of transitional events.
The Commissioner may enter into a written agreement with a State or Territory about what is to happen in respect of the following when a transitional event occurs:
(a) whether a register kept by the State or Territory, or a nominated State or Territory body, is to be treated as a valid register for the purposes of Subdivision D of Division 10A of Part III of the Act (which deals with the 12 week record keeping method for car parking fringe benefits) and the employees and FBT years in relation to which the register is to be treated as valid;
(b) whether a benefit that would otherwise lose its character as an exempt benefit under section 58B, 58C, 58D or 58S is to be treated as an exempt benefit;
(c) whether a benefit that would otherwise lose its character as an amortised fringe benefit under section 65CA is to be treated as an amortised fringe benefit;
(d) whether a benefit that would not otherwise be covered by a recurring fringe benefit declaration under section 152A is to be treated as being covered by the declaration;
(e) whether a year of tax is to be treated as a log book year of tax of the State or Territory, or a nominated State or Territory body, for the purposes of the application of section 10 in relation to a car fringe benefit in relation to that State or Territory, or that nominated State or Territory body, in relation to a particular car or class of cars (however described);
(f) whether a year of tax that is a base year of tax for the purposes of section 26 is to continue to be treated as a base year of tax.
So far as the agreement is inconsistent with this Act, the agreement prevails.
Application
135Y(1)
This section applies to the temporary budget repair levy years for FBT (within the meaning of section 6A of the Fringe Benefits Tax Act 1986).
Modification for aggregate non-exempt amount
135Y(2)
The method statement in subsection 5B(1E) has effect as if:
(a) each reference in that method statement to $17,000 was instead a reference to $17,667; and
(b) the reference in that method statement to $30,000 was instead a reference to $31,177.
Modified rebate for certain not-for-profit employers
135Y(3)
The method statement in subsection 65J(2B) has effect as if the reference in that method statement to $30,000 was instead a reference to $31,177.
Note:
The FBT rate is increased by 2 percentage points in the temporary budget repair levy years for FBT: see section 6A of the Fringe Benefits Tax Act 1986.
In this Act, unless the contrary intention appears:
ABN
has the meaning given by the A New Tax System (Australian Business Number) Act 1999.
academic period,
in relation to an educational institution, means:
(a) if the academic years of the educational institution are divided into terms but not semesters - a term of the academic year;
(b) if the academic years of the educational institution are divided into semesters (whether or not they are also divided into terms) - a semester of the academic year; or
(c) if the academic years of the educational institution are not divided into terms or semesters - an academic year of the institution.
accommodation component,
in relation to a living-away-from-home allowance fringe benefit, means so much (if any) of the fringe benefit as might reasonably be concluded to be compensation for expenses to be incurred by the employee for the accommodation of eligible family members during the period to which the fringe benefit relates.
(a) a person who, for and on behalf of a person out of Australia, has the management or control in Australia of the whole or a part of a business of the second-mentioned person; and
(b) a person declared by the Commissioner, by notice in writing served on the person, to be an agent or the sole agent of a person for the purposes of this Act.
agent's certificate
means a certificate under subsection 71(1).
aggregate fringe benefits amount
has the meaning given by section 5C.
aggregate non-exempt amount
has the meaning given by subsection 5B(1E).
aggregate non-rebatable amount
has the meaning given by subsection 65J(2B).
airline operator
(Repealed by No 88 of 2013)
airline transport benefit
(Repealed by No 88 of 2013)
airline transport fringe benefit
means an in-house property fringe benefit, or in-house residual fringe benefit, to the extent that the benefit:
(a) is the provision of transport in a passenger aircraft operated by a carrier and any incidental services on board the aircraft; and
(b) is provided subject to the stand-by restrictions that customarily apply in relation to the provision of airline transport to employees in the airline industry.
all-day parking,
in relation to a particular day, means parking of a single car for a continuous period of 6 hours or more during a daylight period on that day.
amortised fringe benefit
has the meaning given by section 65CA.
annualised number of whole kilometres
(Repealed by No 62 of 2011)
approved form
(Repealed by No 41 of 2005)
approved form
has the meaning given by section 388-50 in Schedule 1 to the Taxation Administration Act 1953.
approved worker entitlement fund
has the meaning given by subsections 58PB(1) and (2).
arm's length loan
means a loan where the parties to the loan are dealing with each other at arm's length in relation to the loan.
arm's length transaction
means a transaction where the parties to the transaction are dealing with each other at arm's length in relation to the transaction.
(a) any agreement, arrangement, understanding, promise or undertaking, whether express or implied, and whether or not enforceable, or intended to be enforceable, by legal proceedings; and
(b) any scheme, plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.
assessable income
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
assessment
means the ascertainment of the fringe benefits taxable amount of an employer of a year of tax and of the tax payable on that amount.
associate
has the meaning given by section 318 of the Income Tax Assessment Act 1936.
Note: Section 159 of this Act affects the above definition.
associated premises
, in relation to a person, means premises, or a part of premises:
(a) owned by the person; or
(b) leased by the person; or
(c) otherwise under the control of the person;
but does not include:
(d) business premises of the person; or
(e) premises, or a part of premises, used as a place of residence of an employee of the person or an employee of an associate of the person.
Australia,
when used in a geographical sense, has the same meaning as in the Income Tax Assessment Act 1997.
Australian Airlines
(Repealed by No 101 of 2006)
Australian workers' compensation law
means a workers' compensation law that is a law of the Commonwealth or of a State or Territory.
basic car rate,
for a car for a year of tax ending on 31 March in a year, means the rate determined under subsection 28-25(4) of the Income Tax Assessment Act 1997 for the car for the year of income ending on 30 June in that year.
battery electric vehicle
has the meaning given by subsection 8A(3).
benchmark interest rate:
(a)
in relation to a year of tax, means the rate of interest, known as the large bank housing lenders variable interest rate on loans for housing for owner occupation, last published by the Reserve Bank of Australia before the commencement of the year of tax; and
(b) in relation to a time after 2 April 1986 and before 1 July 1986, means a rate of interest offered anywhere in Australia at that time in respect of a Commonwealth Bank housing loan.
[ CCH Note: The benchmark interest rates are as follows:
| 1986/87 - 14.75% | 2006/07 - 7.30% |
| 1987/88 - 14.75% | 2007/08 - 8.05% |
| 1988/89 - 12.75% | 2008/09 - 9.00% |
| 1989/90 - 14.25% | 2009/10 - 5.85% |
| 1990/91 - 14.90% | 2010/11 - 6.65% |
| 1991/92 - 13.50% | 2011/12 - 7.80% |
| 1992/93 - 9.25% | 2012/13 - 7.40% |
| 1993/94 - 7.25% | 2013/14 - 6.45% |
| 1994/95 - 8.75% | 2014/15 - 5.95% |
| 1995/96 - 10.50% | 2015/16 - 5.65% |
| 1996/97 - 10.50% | 2016/17 - 5.65% |
| 1997/98 - 7.55% | 2017/18 - 5.25% |
| 1998/99 - 6.70% | 2018/19 - 5.20% |
| 1999/00 - 6.50% | 2019/20 - 5.37% |
| 2000/01 - 7.30% | 2020/21 - 4.80% |
| 2001/02 - 7.55% | 2021/22 - 4.52% |
| 2002/03 - 6.05% | 2022/23 - 4.52% |
| 2003/04 - 6.55% | 2023/24 - 7.77% |
| 2004/05 - 7.05% | 2024/25 - 8.77%] |
| 2005/06 - 7.05% |
benefit
includes any right (including a right in relation to, and an interest in, real or personal property), privilege, service or facility and, without limiting the generality of the foregoing, includes a right, benefit, privilege, service or facility that is, or is to be, provided under:
(a) an arrangement for or in relation to:
(i) the performance of work (including work of a professional nature), whether with or without the provision of property;
(ii) the provision of, or of the use of facilities for, entertainment, recreation or instruction; or
(iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;
(b) a contract of insurance; or
(c) an arrangement for or in relation to the lending of money.
board benefit
means a benefit referred to in section 35.
board fringe benefit
means a fringe benefit that is a board benefit.
Board of Review
(Omitted by No 48 of 1986)
board meal
means a meal provided, in respect of the employment of an employee of an employer, to a person (in this definition referred to as the
recipient
), being the employee or an associate of the employee, where:
(a) the meal is provided on a meal entitlement day;
(b) the meal is provided by the employer or, if the employer is a company, by the employer or by a company that is related to the employer;
(c) either of the following subparagraphs applies:
(i) the meal is cooked or otherwise prepared on eligible premises of the employer and is provided to the recipient on eligible premises of the employer (not being a dining facility that, at any time, is open to the public);
(ii) the following conditions are satisfied:
(A) the duties of employment of the employee consist principally of duties to be performed in, or in connection with, an eligible dining facility of the employer or a facility for the provision of accommodation, recreation or travel of which the eligible dining facility forms part;
(B) the meal is cooked or otherwise prepared in the cooking facility of the eligible dining facility;
(C) the meal is provided to the recipient in the eligible dining facility;
(d) the facility in which the meal is cooked or otherwise prepared is not for use wholly or principally for the cooking or other preparation of meals solely for the employee or associates of the employee or for the employee and associates of the employee; and
(e) the meal is not provided at a party, reception or other social function.
business day
(Repealed by No 46 of 2011)
(a) for the purposes of the application of Division 2 of Part III in relation to a car fringe benefit in relation to an employer in relation to a car - a journey undertaken in a car otherwise than in the application of the car to a private use, being an application that results in the provision of a fringe benefit in relation to the employer; or
(b) for the purposes of the application of sections 19, 24, 44 and 52 in relation to a loan fringe benefit, an expense payment fringe benefit, a property fringe benefit or a residual fringe benefit, as the case requires, in relation to an employee in relation to a car - a journey undertaken in the car in the course of producing assessable income of the employee.
business kilometre,
in relation to a car, means a kilometre travelled by the car in the course of a business journey.
business operations,
in relation to a government body or a non-profit company, includes any operations or activities carried out by that body or company.
business premises
, in relation to a person, means premises, or a part of premises, of the person used, in whole or in part, for the purposes of business operations of the person, but does not include:
(a) premises, or a part of premises, used as a place of residence of an employee of the person or an employee of an associate of the person; or
(b) a corporate box; or
(c) boats or planes used primarily for the purpose of providing entertainment unless the boat or plane is used in the person's business of providing entertainment; or
(d) other premises used primarily for the purpose of providing entertainment unless the premises are used in the person's business of providing entertainment.
business use percentage,
for a car held by a person during a period (the
holding period
) in an FBT year, means the percentage worked out using the formula:
| Number of business kilometres travelled by the car during the holding period | × | 100% | |
| Total number of kilometres travelled by the car during the holding period |
car
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
car benefit
means a benefit referred to in subsection 7(1).
car expense,
in relation to a car, means an expense incurred in respect of:
(a) the registration of, or insurance in respect of, the car;
(b) repairs to or maintenance of the car; or
(c) fuel for the car.
car expense payment benefit
means an expense payment fringe benefit where the recipients expenditure is a Division 28 car expense.
car fringe benefit
means a fringe benefit that is a car benefit.
car loan benefit
means a loan fringe benefit where the loan was used by the recipient to:
(a) purchase a car; or
(b) pay a Division 28 car expense.
car parking benefit
means a benefit referred to in section 39A.
car parking fringe benefit
means a fringe benefit that is a car parking benefit.
car property benefit
means a property fringe benefit where, if the recipient had incurred expenditure in respect of the provision of the recipients property, that expenditure would have been a Division 28 car expense.
car records
(Omitted by No 145 of 1995)
car residual benefit
means a residual fringe benefit where, if the recipient had incurred expenditure in respect of the provision of the recipients benefit, that expenditure would have been a Division 28 car expense.
car substantiation declaration,
in relation to a car held by a person during a period (in this definition called the
holding period
) in a year of tax, means a declaration, in a form approved by the Commissioner, for the purposes of paragraphs 19(1)(ca), 24(1)(ea), 44(1)(da) and 52(1)(da), in relation to the car in relation to the holding period.
Chief Executive Centrelink
(Repealed by No 88 of 2013)
child
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
child care facility
means a facility at which a person receives, or is ready to receive, 2 or more children under the age of 6, not being associates of the person, for the purpose of minding, caring for or educating them for a day or part of a day without provision for residential care but does not include a facility at the place of residence of any of those children.
close relative,
in relation to a person, means:
(a) the spouse of the person;
(b) a child or parent of the person; or
(c) a parent of the person's spouse.
commercial parking station
, in relation to a particular day, means a permanent commercial car parking facility where any or all of the car parking spaces are available in the ordinary course of business to members of the public for all-day parking on that day on payment of a fee, but does not include a parking facility on a public street, road, lane, thoroughfare or footpath paid for by inserting money in a meter or by obtaining a voucher.
Commissioner
means the Commissioner of Taxation.
Commonwealth Bank housing loan
means an arm's length loan by the Commonwealth Bank of Australia made in the ordinary course of business to a member of the public, being a loan:
(a) for housing purposes; and
(b) the terms of which provide for:
(i) interest to be calculated on the daily balance of the loan; and
(ii) that interest to be added to the balance of the loan at monthly intervals.
company
includes any body or association, corporate or unincorporate, but does not include a partnership.
comparison time,
in relation to a residual fringe benefit, means:
(a) if the fringe benefit is constituted by a benefit to which subsection 46(2) applies - the start of the billing period referred to in that subsection in relation to the benefit; or
(b) if the fringe benefit is a period residual fringe benefit - the time when the recipients overall benefit started to be provided; or
(c) if the fringe benefit is an airline transport fringe benefit - the time when the transport starts; or
(d) otherwise - the time when the benefit is provided.
compensable work-related trauma
means work-related trauma suffered by an employee where:
(a) if there is no Australian workers' compensation law that applies to the employment of the employee - if any Australian workers' compensation law had applied to the employment of the employee, that law would have provided for compensation or other benefits for or in respect of the trauma; or
(b) in all cases - there is a workers' compensation law that:
(i) applies to the employment of the employee; and
(ii) provides for compensation or other benefits for or in respect of the trauma.
contract of investment insurance
means a contract of life assurance insuring payment of money in the event that the life insured is alive on a specified date, whether or not the contract also insures the payment of money in any other event.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsection 136(1) of the Act is modified by inserting the definition of "contribution assessment period":
]contribution assessment period
has the meaning given by section 139K of the Bankruptcy Act 1966 as in force from time to time.
cost price:
(a)
in relation to a car owned by a person, means:
(i) where the car was manufactured by the person - the amount for which the car could reasonably have been expected to have been sold by the person by wholesale under an arm's length transaction at or about the time when the car was applied to the person's own use; or
(ii) where neither subparagraph (i) nor (iii) applies, an amount equal to the sum of:
(A) the expenditure incurred by the person (other than expenditure in respect of registration or in respect of a tax on, or on a transfer of, registration) that is directly attributable to the acquisition or delivery of the car or, if subsection 7(6) applies in relation to the car, the leased car value of the car when the person first took the car on hire; and
(B) the amount of any additional expenditure incurred by the person for or in relation to the fitting of non-business accessories to the car at or about the time when the car was acquired by the person, reduced by the amount of any reimbursement of the whole or a part of that expenditure paid, at or about the time when the expenditure was incurred, by a recipient of a car benefit in relation to the car; or
(iii) where subparagraph (i) does not apply and the person was entitled to privileges or exemptions in relation to customs duty in respect of a transaction by which the person acquired the car or by which the person arranged for the fitting of non-business accessories to the car at or about the time when the car was acquired by the person, the amount that could reasonably have been expected to have been applicable under subparagraph (ii) if the person had not been entitled to those privileges to exemptions;
(b) in relation to a non-business accessory fitted to a car, means:
(i) where the accessory was manufactured by the person who held the car at the time of the fitting - the amount for which the accessory could reasonably have been expected to have been sold under an arm's length transaction by the person by wholesale at or about the time when the accessory was applied to the person's own use; and
(ii) where neither subparagraph (i) nor (iii) applies - the expenditure incurred, by a person other than a recipient of a car benefit in relation to the car, for or in relation to the fitting of the accessory, reduced by the amount of any reimbursement of the whole or a part of that expenditure paid at or about that time by a recipient of a car benefit in relation to the car; and
(iii) where subparagraph (i) does not apply and a person was entitled to privileges or exemptions in relation to customs duty in respect of a transaction by which the person acquired the accessory - the amount that could reasonably have been expected to have been applicable under subparagraph (ii) if the person had not been entitled to those privileges or exemptions; and
(c) in relation to the recipients property in relation to a property fringe benefit - means the expenditure incurred by the provider that is directly attributable to purchasing or obtaining delivery of the property.
counselling
includes the giving of advice or information in a seminar.
current employee
means a person who receives, or is entitled to receive, salary or wages.
current employer
means a person (including a government body) who pays, or is liable to pay, salary or wages, and includes:
(a) in the case of a partnership - each partner; and
(b) in the case of any other unincorporated association or body of persons - its manager or other principal officer.
current identical benefit,
in relation to an identical overall benefit in relation to a year of tax, means that identical overall benefit insofar as it was provided during the yearof tax.
customs duty
means customs duty imposed under a law of the Commonwealth or of a Territory.
daily balance,
in relation to a loan, means the balance of the loan at the end of a day.
daylight period,
in relation to a day, means so much of a period on that day as occurs:
(a) after 7 a.m. on that day; and
(b) before 7 p.m. on that day.
debt waiver benefit
means a benefit referred to in section 14.
debt waiver fringe benefit
means a fringe benefit that is a debt waiver benefit.
December quarter
means a quarter ending on 31 December.
declaration date,
in relation to an employer in relation to a year of tax, means the date of lodgment of the return of the fringe benefits taxable amount of the employer of the year of tax, or such later date as the Commissioner allows.
deductible entertainment expenditure
(Omitted by No 57 of 1993)
deductible expenses,
in relation to an allowance paid to an employee, means expenses incurred by the employee in respect of which a deduction is allowable to the employee under section 8-1 of the Income Tax Assessment Act 1997 (ignoring Divisions 28, 32 and 900 of that Act).
deferred BAS payer
has the same meaning as in subsection 995-1(1) in the Income Tax Assessment Act 1997.
depreciable property
(Omitted by No 57 of 1993)
Deputy Commissioner
means a Deputy Commissioner of Taxation.
(a) a person who is intellectually, psychiatrically or physically handicapped; or
(b) a person who is in necessitous circumstances.
disease
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
Division 28 car expense
means a car expense as defined in section 28-13 of the Income Tax Assessment Act 1997, but does not include a car expense covered by section 28-165 of that Act.
documentary evidence,
in relation to an expense incurred by a person, means a document that would constitute written evidence of the expense obtained in a way described in Subdivision 900-E of the Income Tax Assessment Act 1997 if the expense were a work expense, and Division 900 of that Act applied to the person.
domestic route
(Repealed by No 88 of 2013)
(a) child care;
(b) gardening;
(c) home renovations, repairs or maintenance;
(d) house cleaning;
(e) nursing care; and
(f) preparation of meals.
dwelling
means a unit of accommodation constituted by, or contained in a building, being a unit that consists, in whole or in substantial part, of residential accommodation.
economy air fare,
in relation to a person being carried on a scheduled passenger air service operated by a carrier over a route, means:
(a) in a case where paragraph (b) does not apply - the standard air fare (other than a preferential air fare) charged by the carrier in respect of the scheduled air service; or
(b) in a case where the carrier charges children, students or blind persons a concessional air fare in respect of the air fare to which paragraph (a) applies and the person is eligible for such a concessional air fare - the concessional air fare concerned;
being, in either case, an air fare in relation to which no special booking conditions are attached.
educational institution
means a school, college or university.
elderly person
means a person who has attained the age of 60 years.
electronic signature
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
eligible car parking expense payment benefit
means an expense payment benefit where:
(a) the recipient is an employee or an associate of an employee; and
(b) the recipients expenditure is in respect of the provision of car parking facilities for a car on one or more days; and
(c) the following conditions are satisfied in relation to any of those days:
(i) on that day, the employee has a primary place of employment;
(ii) on that day, the car was parked for one or more daylight periods exceeding 4 hours in total at, or in the vicinity of, that primary place of employment;
(iii) the whole or a part of the recipients expenditure is in respect of the provision of the parking facilities to which that parking relates;
(iv) on that day, the car was used in connection with travel by the employee between the place of residence of the employee and that primary place of employment;
(v) the provision of parking facilities for the car during the period or periods is not taken, under the regulations, to be excluded from this definition;
(vi) the day is on or after 1 July 1993.
eligible dining facility,
in relation to an employer, means:
(a) a canteen, dining room or similar facility; or
(b) a café, restaurant or similar facility;
that is located on premises of the employer or, if the employer is a company, of the employer or of a company that is related to the employer.
eligible entertainment expenditure
(Omitted by No 57 of 1993)
(a) in relation to an employee whose duties of employment require the employee to live away, for a period, from his or her normal residence:
(i) the employee; or
(ii) the spouse of the employee, or a child of the employee, being a spouse or child, as the case may be:
(A) who lived with the employee during that period; and
(B) whose usual place of residence during that period was the same as the usual place of residence of the employee; and
(b) in relation to a living-away-from-home allowance fringe benefit in relation to an employee, means:
(i) the employee; or
(ii) the spouse of the employee, or a child of the employee, being a spouse or child, as the case may be:
(A) in respect of whom the fringe benefit is paid;
(B) who lived with the employee during the period to which the fringe benefit relates; and
(C) whose usual place of residence during that period was the same as the usual place of residence of the employee.
eligible foreign remuneration
has the same meaning as in section 23AF of the Income Tax Assessment Act 1936.
eligible incidental travel expense payment benefit
means an expense payment fringe benefit where:
(a) either:
(i) the recipients expenditure:
(A) is in respect of travel by the recipient away from the recipient's usual place of residence undertaken in the course of performing the duties of his or her employment, being expenditure in respect of accommodation, the purchase of food or drink or otherwise incidental to the travel; and
(B) relates solely to travel by the recipient in Australia; or
(ii) the recipients expenditure:
(A) is in respect of travel by the recipient away from the recipient's usual place of residence undertaken in the course of performing the duties of his or her employment, being expenditure in respect of the purchase of food or drink or otherwise incidental to the travel (except in respect of accommodation); and
(B) relates solely or principally to travel by the recipient outside Australia; and
(b) the payment or reimbursement, as the case may be, that constitutes the fringe benefit is in the nature of compensation to the recipient for the expenses that the recipient might reasonably be expected to have incurred in respect of the matters specified in sub-subparagraph (a)(i)(A) or (a)(ii)(A), as the case requires.
eligible overtime meal expense payment benefit
means an expense payment fringe benefit where:
(a) the recipients expenditure is incurred in respect of the purchase of food or drink in connection with overtime worked by the recipient; and
(b) the payment or reimbursement, as the case may be, that constitutes the fringe benefit is in the nature of compensation to the recipient for the expenses that the recipient might reasonably be expected to have incurred in respect of the purchase of food or drink in connection with that overtime.
eligible pre-commencement loan
means a loan made before 1 July 1986 at a rate of interest that:
(a) is specified in a document in existence at the time when the loan was made; and
(b) cannot be varied.
eligible premises,
in relation to entertainment, a meal, or food or drink, provided in respect of the employment of an employee of an employer, means:
(a) if the employer is a company - premises of the employer or of a company that is related to the employer; or
(b) in any other case - premises of the employer;
and includes, in either case, a location at or adjacent to a site at which the employee performs duties of that employment.
emergency
means an emergency involving any of the following matters:
(a) a natural disaster;
(b) a conflict involving an armed force;
(c) a civil disturbance;
(d) an accident;
(e) a serious illness;
(f) any similar matter.
emergency assistance,
in relation to a person, means assistance granted to the person where:
(a) the person is, or is at immediate risk of becoming, the victim of an emergency;
(b) the assistance is granted to the person solely in order to provide immediate relief;
(c) the assistance is in respect of all or any of the following matters:
(i) first aid or other emergency health care;
(ii) emergency meals or food supplies;
(iii) emergency clothing;
(iv) emergency transport;
(v) emergency accommodation;
(vi) emergency use of household goods;
(vii) temporary repairs;
(viii) any similar matter.
(a) a current employee;
(b) a future employee; or
(c) a former employee.
employee credit loan benefit,
in relation to a year of tax, means a loan fringe benefit in relation to an employee in relation to the year of tax where:
(a) the loan consists of the provision of credit to the employee in respect of:
(i) property sold; or
to the employee by the provider of the fringe benefit; and
(ii) other benefits provided;
(b) if the employee had, on the last day of the period during the year of tax when the employee was under an obligation to repay the whole or any part of the loan, incurred interest in respect of the loan in respect of that period, that interest would have been exclusively incurred in gaining or producing salary or wages of the employee in respect of the employment to which the fringe benefit relates.
employee share loan benefit,
in relation to a year of tax, means a loan fringe benefit in relation to an employee in relation to an employer in relation to the year of tax where:
(a) the sole purpose of the making of the loan is to enable the employee to acquire shares, or rights to acquire shares, in a company, being:
(i) the employer; or
(ii) an associate of the employer; and
(b) the shares or rights were beneficially owned by the employee at all times during the period during the year of tax when the employee was under an obligation to repay the whole or any part of the loan.
employee's share
of the taxable value of a fringe benefit has the meaning given by section 5F.
(a) a current employer;
(b) a future employer; or
(c) a former employer;
but does not include:
(d) the Commonwealth; or
(e) an authority of the Commonwealth that cannot, by a law of the Commonwealth, be made liable to taxation by the Commonwealth.
employment,
in relation to a person, means the holding of any office or appointment, the performance of any functions or duties, the engaging in of any work, or the doing of any acts or things that results, will result or has resulted in the person being treated as an employee.
entertainment
has the meaning given by section 32-10 of the Income Tax Assessment Act 1997.
entertainment facility leasing expenses
for a person, means expenses incurred by the person in hiring or leasing:
(a) a corporate box; or
(b) boats, or planes, for the purpose of the provision of entertainment; or
(c) other premises, or facilities, for the purpose of the provision of entertainment;
but does not include so much of any of such expenses that:
(d) is attributable to the provision of food or drink; or
(e) is attributable to advertising and is an allowable deduction for the person under the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997.
entity
(Repealed by No 58 of 2006)
entity
has the meaning given by section 960-100 of the Income Tax Assessment Act 1997.
excluded fringe benefit,
in relation to an employee, employer and year of tax, has the meaning given by subsection 5E(3).
exclusive employee airline transport benefit
(Repealed by No 88 of 2013)
exclusive employee expense payment benefit
means an expense payment fringe benefit where the recipients expenditure is exclusively incurred in gaining or producing salary or wages of the recipient in respect of the employment to which the fringe benefit relates and is not expenditure in respect of interest.
exclusive employee property benefit
means a property fringe benefit where, if the recipient had incurred expenditure in respect of the provision of the recipients property, that expenditure would have been exclusively incurred in gaining or producing salary or wages of the recipient in respect of the employment to which the fringe benefit relates.
exclusive employee residual benefit
means a residual fringe benefit where, if the recipient had incurred expenditure in respect of the provision of the recipients benefit, that expenditure would have been exclusively incurred in gaining or producing salary or wages of the recipient in respect of the employment to which the fringe benefit relates.
exempt accommodation component,
in relation to a living-away-from-home allowance fringe benefit, means so much of the accommodation component as is equal to the total of the expenses that:
(a) are incurred by the employee for that accommodation; and
(b) are substantiated under section 31G.
exempt food component
has the meaning given by section 31H.
expense payment benefit
means a benefit referred to in section 20.
expense payment fringe benefit
means a fringe benefit that is an expense payment benefit.
extended travel airline transport benefit
(Repealed by No 88 of 2013)
extended travel expense payment benefit
means an expense payment fringe benefit where:
(a) the recipient's expenditure is in respect of travel outside Australia and involves the recipient being away from the recipient's usual place of residence for a continuous period including more than 5 nights; or
(b) the following conditions are satisfied:
(i) the recipients expenditure is in respect of travel by the recipient within Australia that involves the recipient being away from the recipient's usual place of residence for a continuous period including more than 5 nights;
(ii) the travel was not undertaken exclusively in gaining or producing salary or wages of the recipient in respect of the employment to which the fringe benefit relates;
but does not include a car expense payment benefit.
extended travel property benefit
means a property fringe benefit where:
(a) the recipients property is in respect of travel outside Australia and involves the recipient being away from the recipient's usual place of residence for a continuous period including more than 5 nights; or
(b) the following conditions are satisfied:
(i) the recipients property is provided in respect of travel by the recipient within Australia that involves the recipient being away from the recipient's usual place of residence for a continuous period including more than 5 nights;
(ii) the travel was not undertaken exclusively in gaining or producing salary or wages of the recipient in respect of the employment to which the fringe benefit relates;
but does not include a car property benefit.
extended travel residual benefit
means a residual fringe benefit where:
(a) the recipients benefit is in respect of travel outside Australia and involves the recipient being away from the recipient's usual place of residence for a continuous period including more than 5 nights; or
(b) the following conditions are satisfied:
(i) the recipients benefit consists of, or is in respect of, travel by the recipient within Australia that involves the recipient being away from the recipient's usual place of residence for a continuous period including more than 5 nights;
(ii) the travel was not undertaken exclusively in gaining or producing salary or wages of the recipient in respect of the employment to which the fringe benefit relates;
but does not include a car residual benefit.
external administrator
has the same meaning as in the Payment Systems and Netting Act 1998.
external expense payment fringe benefit
means an expense payment fringe benefit other than an in-house expense payment fringe benefit.
external non-period residual fringe benefit
means a non-period residual fringe benefit other than an in-house residual fringe benefit.
external period residual fringe benefit
means a period residual fringe benefit other than an in-house residual fringe benefit.
external property fringe benefit,
in relation to an employer, means a property fringe benefit in relation to the employer other than an in-house property fringe benefit.
Families Department
has the meaning given by the Income Tax Assessment Act 1997.
family member,
in relation to a benefit provided to an employee, or to an associate of an employee, in respect of the employment of the employee, means:
(a) the employee;
(b) the spouse of the employee; or
(c) a child of the employee.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsection 136(1) (definition of family member) of the Act is modified by substituting the definition:
]family member
, in relation to:
(a) a benefit provided to an employee, or to an associate of an employee, means:
(i) the employee; or
(ii) the spouse of the employee; or
(iii) a child of the employee; and
(b) a benefit provided to a bankrupt, or to an associate of a bankrupt, means:
(i) the bankrupt; or
(ii) the spouse of the bankrupt; or
(iii)a child of the bankrupt;'.
FBT year
means a year beginning on 1 April.
fitting,
in relation to a non-business accessory, includes the acquisition of the accessory.
food component,
in relation to a living-away-from-home allowance fringe benefit, means so much (if any) of the fringe benefit as might reasonably be concluded to be compensation for expenses to be incurred by the employee for food or drink for eligible family members during the period to which the fringe benefit relates.
foreign earnings
has the same meaning as in section 23AG of the Income Tax Assessment Act 1936.
foreign income deduction
(Repealed by No 143 of 2007)
foreign source deduction
(Omitted by No 48 of 1991)
former employee
means a person who has been a current employee.
former employer
means a person who has been a current employer.
fringe benefit,
in relation to an employee, in relation to the employer of the employee, in relation to a year of tax, means a benefit:
(a) provided at any time during the year of tax; or
(b) provided in respect of the year of tax;
being a benefit provided to the employee or to an associate of the employee by:
(c) the employer; or
(d) an associate of the employer; or
(e) a person (in this paragraph referred to as the arranger ) other than the employer or an associate of the employer under an arrangement covered by paragraph (a) of the definition of arrangement between:
(i) the employer or an associate of the employer; and
(ii) the arranger or another person; or
(ea) a person other than the employer or an associate of the employer, if the employer or an associate of the employer:
(i) participates in or facilitates the provision or receipt of the benefit; or
and the employer or associate knows, or ought reasonably to know, that the employer or associate is doing so;
(ii) participates in, facilitates or promotes a scheme or plan involving the provision of the benefit;
in respect of the employment of the employee, but does not include:
(f) a payment of salary or wages or a payment that would be salary or wages if salary or wages included exempt income for the purposes of the Income Tax Assessment Act 1936; or
(g) a benefit that is an exempt benefit in relation to the year of tax; or
(h) a benefit constituted by the acquisition of an ESS interest under an employee share scheme (within the meaning of the Income Tax Assessment Act 1997) to which Subdivision 83A-B or 83A-C of that Act applies; or
(ha) a benefit constituted by the acquisition of money or property by an employee share trust (within the meaning of the Income Tax Assessment Act 1997); or
(haa)-(hc) (Repealed by No 133 of 2009)
(hd) (Repealed by No 70 of 2015)
(j) a benefit constituted by:
(i) the making of a contribution to a superannuation fund (as defined by the Income Tax Assessment Act 1997) that the person making the contribution had reasonable grounds for believing was a complying superannuation fund (as defined by that Act) for the purpose of making provision for superannuation benefits for the employee (whether or not the benefits are payable to a dependant of the employee if the employee dies before or after becoming entitled to receive the benefits); or
(ii) the making of a contribution to a foreign superannuation fund (within the meaning of the Income Tax Assessment Act 1997) where:
(A) the contribution is for the purpose of making provision for superannuation benefits for the employee (whether or not the benefits are payable to a dependant of the employee if the employee dies before or after becoming entitled to receive the benefits); and
(B) the employee is a temporary resident (within the meaning of the Income Tax Assessment Act 1997) when the contribution is made; or
(iii) the making of a payment of money to an RSA (within the meaning of the Retirement Savings Accounts Act 1997) that is held by the employee; or
(k) a superannuation benefit (within the meaning of the Income Tax Assessment Act 1997); or
(ka)-(kb) (Repealed by No 15 of 2007)
(l) a payment covered by section 26AF or 26AFA of the Income Tax Assessment Act 1936; or
(la) an early retirement scheme payment (within the meaning of the Income Tax Assessment Act 1997); or
(lb) a genuine redundancy payment (within the meaning of the Income Tax Assessment Act 1997); or
(lc) an employment termination payment (within the meaning of the Income Tax Assessment Act 1997); or
(ld) a payment that would be an employment termination payment (within the meaning of the Income Tax Assessment Act 1997) apart from paragraph 82-130(1)(b) of that Act; or
(le) any of the following payments, if they would be employment termination payments (within the meaning of the Income Tax Assessment Act 1997) apart from paragraph 82-130(1)(b) and section 82-135 of that Act:
(i) an unused annual leave payment (within the meaning of that Act);
(ii) an unused long service leave payment (within the meaning of that Act);
(iii) a payment covered by Subdivision 83-D (Foreign termination payments) of that Act;
(iv) a payment covered by paragraph 82-135(g) of that Act;
(v) a payment of an annuity, or a supplement, covered by section 27H of the Income Tax Assessment Act 1936; or
(m) consideration of a capital nature for, or in respect of:
(i) a legally enforceable contract in restraint of trade by a person; or
(ii) personal injury to a person; or
(ma) a payment, within the meaning of subsection 104-255(7) of the Income Tax Assessment Act 1997, of a carried interest of a kind referred to in subsection 104-255(1) of that Act; or
(mb) a grant or acquisition of such a carried interest, or of an entitlement to such a payment; or
(n) a payment of an amount that, under any provision of the Income Tax Assessment Act 1936, is deemed to be a dividend paid to the recipient; or
(p) a payment made, or liability incurred, to a person to the extent that the payment or liability is non-assessable non-exempt income (within the meaning of the Income Tax Assessment Act 1997) of the person because of subsection 26-35(4) of that Act; or
(q) a benefit constituted by the conferral of a present entitlement to, or a distribution of, income or capital to the extent that subsection 271-105(1) in Schedule 2F to the Income Tax Assessment Act 1936 would prevent the inclusion of the amount or value of the income or capital in assessable income, assuming that it would otherwise be so included; or
(r) anything done in relation to a shareholder in a private company (as those terms are defined in section 6 of the Income Tax Assessment Act 1936), or an associate of such a shareholder, that causes (or will cause) the private company to be taken under Division 7A of Part III of that Act to pay the shareholder or associate a dividend; or
(s) a loan (within the meaning of section 109D of the Income Tax Assessment Act 1936), if:
(i) a dividend is not taken to be paid under that section in relation to the loan, but would be if section 109N of that Act were disregarded; or
(ii) an amount is not included, as if it were a dividend, in the assessable income of an entity under section 109XB of that Act in relation to the loan, but would be if section 109N of that Act were disregarded.
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsection 136(1) (definition of fringe benefit) of the Act is modified by substituting the definition:
]fringe benefit
, in relation to a bankrupt, in relation to a contribution assessment period, means a benefit provided at any time during the period by any person to the bankrupt, other than:
(a) a benefit provided to the bankrupt by the bankrupt's spouse under, or because of a genuine maintenance agreement between the spouses; or
(b) a benefit provided under a maintenance order, within the meaning of the Bankruptcy Act 1966 as in force from time to time; or
(c) the benefit of an order by a court in favour of the bankrupt in respect of costs of litigation; or
(d) educational expenses paid by any person in respect of a child of:
(i) the bankrupt; or
(ii) the bankrupt's spouse; or
(e) the amount of a refund, or part of a refund, due by the Commissioner to the bankrupt under a law of the Commonwealth, being an amount that the Commissioner has lawfully offset against a tax liability, within the meaning of the Taxation Administration Act 1953 as in force from time to time, of the bankrupt; or
(f) subject to subsection (1A), a benefit of a kind referred to in paragraphs (f) to (p) (inclusive) of the definition of fringe benefit in this Act (in its unmodified form) as in force at the beginning of 1 July 1992; or
(g) support by way of one or both of the following:
(i) lodging (including any board);up to a value of $250 a week, if the support is provided by a person in the person's principal place of residence, and the person is:
(ii) occasional use of a motor vehicle used for domestic purposes;
(iii) a close relative; orof the bankrupt.
(iv) a brother or sister (including a half-brother, half- sister, adoptive brother or adoptive sister);Note:
Close relative , in relation to a person, is defined in section 136 of the Fringe Benefits Tax Assessment Act 1986 as:
(a) the spouse of the person; or (b) a child or parent of the person; or (c) a parent of the person's spouse.
fringe benefits tax
or
tax
means tax imposed by the Fringe Benefits Tax Act 1986.
fringe benefits taxable amount
has the meaning given by section 5B.
future employee
means a person who will become a current employee.
future employer
means a person who will become a current employer.
general interest charge
means the charge worked out under Part IIA of the Taxation Administration Act 1953.
government body
means the Commonwealth, a State, a Territory or an authority of the Commonwealth or of a State or Territory.
GST-creditable benefit
has the meaning given by section 149A.
health care
means any examination, test or form of care (whether therapeutic, preventative or rehabilitative) that is related to the physiological or psychological health of a person and, without limiting the generality of the foregoing, includes:
(a) the supply, maintenance or repair of:
(i) an artificial limb or other artificial substitute; or
(ii) a medical, surgical or similar aid or appliance used by a person; and
(b) the supply of drugs or other property in connection with such an examination, test or form of care.
health promotion charity
(Repealed by No 169 of 2012)
housing benefit
means a benefit referred to in section 25.
housing fringe benefit
means a fringe benefit that is a housing benefit.
housing right,
in relation to a person, means a lease or licence granted to the person to occupy or use a unit of accommodation, insofar as that lease or licence subsists at a time when the unit of accommodation is the person's usual place of residence.
hydrogen fuel cell electric vehicle
has the meaning given by subsection 8A(4).
identical benefit,
in relation to the recipients benefit in relation to a residual fringe benefit, means another benefit that is the same in all respects, except for differences (if any) that are minimal or insignificant and do not affect the value of the other benefit.
identical overall benefit,
in relation to the recipients overall benefit in relation to a period residual fringe benefit, means a benefit that is the same in all respects as the recipients overall benefit (except for any differences that are minimal or insignificant and do not affect the value of the benefit).
identical property,
in relation to the recipients property in relation to a property fringe benefit, means other property that is the same in all respects, including physical characteristics, quality and reputation, except for differences (if any) that are minimal or insignificant and do not affect the value of the property.
incorporated company
means a company being a body corporate.
individual fringe benefits amount
for a year of tax in respect of the employment of an employee by an employer has the meaning given by section 5E.
individual quasi-fringe benefits amount
for a year of tax in respect of the employment of an employee by an employer has the meaning given by subsection 135Q(3).
industrial instrument
means a law of the Commonwealth or of a State or Territory or an award, order, determination or industrial agreement in force under any such law.
in-house expense payment fringe benefit
means:
(a) an in-house property expense payment fringe benefit; or
(b) an in-house residual expense payment fringe benefit.
in-house fringe benefit
means:
(a) an in-house expense payment fringe benefit;
(b) an in-house property fringe benefit; or
(c) an in-house residual fringe benefit.
in-house health care facility,
in relation to an employer, means a clinic, surgery, first-aid station or similar facility that is:
(a) operated wholly or principally for providing health care in respect of compensable work-related trauma suffered:
(i) in any case - by employees of the employer; or
(ii) if the employer is a company - by employees of the employer or by employees of a company that is related to the employer; and
(b) located:
(i) on premises of the employer or, if the employer is a company, of the employer or of a company that is related to the employer; or
(ii) at or adjacent to a place where employees of the employer or, if the employer is a company, of the employer or of a company that is related to the employer (other than members of the staff of the facility) perform the duties of their employment.
in-house non-period residual fringe benefit
means an in-house residual fringe benefit that is not provided during a period.
in-house period residual fringe benefit
means an in-house residual fringe benefit that is provided during a period.
in-house property expense payment fringe benefit,
in relation to an employer, means an expense payment fringe benefit in relation to the employer where:
(a) the recipients expenditure was incurred in respect of the provision of tangible property by a person (in this definition called the property provider );
(b) the provision of the property is a property benefit;
(c) if the property provider is the employer or an associate of the employer - at or about the provision time, the property provider carried on a business that consisted of or included the provision of identical or similar property principally to outsiders;
(d) if the property provider is not the employer or an associate of the employer:
(i) the property was acquired by the property provider from the employer or an associate of the employer (which employer or associate is in this definition called the seller ); and
(ii) at or about the provision time, both the property provider and the seller carried on a business that consisted of or included the provision of identical or similar property principally to outsiders; and
(e) documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date.
in-house property fringe benefit,
in relation to an employer, means a property fringe benefit in relation to the employer in respect of tangible property:
(a) where both of the following conditions are satisfied:
(i) the provider is the employer or an associate of the employer; and
(ii) at or about the provision time, the provider carried on a business that consisted of or included the provision of identical or similar property principally to outsiders; or
(b) where all of the following conditions are satisfied:
(i) the provider is not the employer or an associate of the employer;
(ii) the property was acquired by the provider from the employer or an associate of the employer (which employer or associate is in this definition called the seller ); and
(iii) at or about the provision time, both the provider and the seller carried on a business that consisted of or included the provision of identical or similar property principally to outsiders.
in-house residual expense payment fringe benefit,
in relation to an employer, means an expense payment fringe benefit in relation to the employer where:
(a) the recipients expenditure was incurred in respect of the provision of a residual benefit (other than a benefit provided under a contract of investment insurance) by a person (in this definition called the residual benefit provider );
(b) if the residual benefit provider is the employer or an associate of the employer - at or about the time that, if the residual benefit had been a residual fringe benefit, would have been the comparison time, the residual benefit provider carried on a business that consisted of or included the provision of identical or similar benefits principally to outsiders;
(c) if the residual benefit provider is not the employer or an associate of the employer:
(i) the residual benefit provider purchased the benefit from the employer or an associate of the employer (which employer or associate is in this definition called the seller ); and
(ii) at or about the time that, if the residual benefit had been a residual fringe benefit, would have been the comparison time, both the residual benefit provider and the seller carried on a business that consisted of or included the provision of identical or similar benefits principally to outsiders; and
(d) documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date.
in-house residual fringe benefit,
in relation to an employer, means a residual fringe benefit in relation to the employer:
(a) where both of the following conditions are satisfied:
(i) the provider is the employer or an associate of the employer;
(ii) at or about the comparison time, the provider carried on a business that consisted of or included the provision of identical or similar benefits principally to outsiders; or
(b) where all of the following conditions are satisfied:
(i) the provider is not the employer or an associate of the employer;
(ii) the provider purchased the benefit from the employer or an associate of the employer (which employer or associate is in this definition called the seller );
(iii) at or about the comparison time, both the provider and the seller carried on a business that consisted of or included the provision of identical or similar benefits principally to outsiders;
but does not include a benefit provided under a contract of investment insurance.
injury
means any physical or mental injury.
in respect of,
in relation to the employment of an employee, includes by reason of, by virtue of, or for or in relation directly or indirectly to, that employment.
(a) real property;
(b) a chose in action; and
(c) any other kind of property other than tangible property;
but does not include:
(d) a right arising under a contract of insurance; or
(e) a lease or licence in respect of real property or tangible property.
interest,
in relation to a loan, includes a payment in the nature of interest.
internal Territory
has a meaning affected by subsection 157(1).
Note:
See also section 2B of the Acts Interpretation Act 1901.
international aircrew expense payment benefit
means an expense payment fringe benefit where the recipients expenditure:
(a) is in respect of travel by the recipient in the course of performing the duties of the recipient's employment as the pilot, flight engineer, flight attendant, or other member of the crew, of an aircraft, being expenditure in respect of accommodation, the purchase of food or drink or otherwise incidental to the travel; and
(b) relates to travel by the recipient outside Australia.
international aircrew property benefit
means a property fringe benefit where the recipients property:
(a) is in respect of travel by the recipient in the course of performing the duties of the recipient's employment as the pilot, flight engineer, flight attendant or other member of the crew, of an aircraft, being property that is:
(i) food or drink;
(ii) in respect of accommodation; or
(iii) otherwise incidental to the travel; and
(b) relates to travel by the recipient outside Australia.
international aircrew residual benefit
means a residual fringe benefit where the recipients benefit:
(a) is in respect of travel by the recipient in the course of performing the duties of the recipient's employment as the pilot, flight engineer, flight attendant or other member of the crew of an aircraft, being a benefit that is in respect of accommodation or a benefit that is otherwise incidental to the travel; and
(b) relates to travel by the recipient outside Australia.
international route
(Repealed by No 88 of 2013)
law,
in relation to a foreign country, means a law of that country, or of any part of, or place in, that country.
leased
means let on hire (including a letting on hire that is described in the relevant agreement as a lease) under an agreement other than a hire-purchase agreement.
leased car value,
in relation to a car held but not owned by a person at a particular time, means:
(a) in a case to which paragraph (b) does not apply - the amount that the person could reasonably be expected to have been required to pay to purchase the car from the owner at that time under an arm's length transaction; or
(b) if the person commenced to lease the car at that time from a lessor who purchased the car at or about that time - the cost price of the car to the lessor.
liability to the Commonwealth
means a liability to the Commonwealth arising under, or by virtue of, an Act of which the Commissioner has the general administration.
liquidator,
in relation to a company, means a person who, whether or not appointed as liquidator, is required by law to carry out the winding up of the company.
living-away-from-home allowance benefit
means a benefit referred to in section 30.
living-away-from-home allowance fringe benefit
means a fringe benefit that is living-away-from-home allowance benefit.
living-away-from-home food fringe benefit
means:
(a) an expense payment fringe benefit provided in respect of the employment of an employee where:
(i) the recipients expenditure was incurred in respect of food or drink; and
(ii) the food or drink was not for consumption while the employee was undertaking travel in the course of performing the duties of that employment; and
(iii) the food or drink was for consumption by eligible family members at a time when the duties of that employment required the employee to live away from his or her normal residence; or
(b) a property fringe benefit provided in respect of the employment of an employee where:
(i) the recipients property is food or drink; and
(ii) the food or drink was not for consumption while the employee was undertaking travel in the course of performing the duties of that employment; and
(iii) the food or drink was for consumption by eligible family members at a time when the duties of that employment required the employee to live away from his or her normal residence.
(a) an advance of money;
(b) the provision of credit or any other form of financial accommodation;
(c) the payment of an amount for, on account of, on behalf of or at the request of a person where there is an obligation (whether expressed or implied) to repay the amount; and
(d) a transaction (whatever its terms or form) which in substance effects a loan of money.
loan benefit
means a benefit referred to in subsection 16(1).
loan fringe benefit
means a fringe benefit that is a loan benefit.
log book records,
in relation to a car held by a person (in this definition called the
holder
), in relation to a period, means a daily log book or similar document in which, in respect of each business journey:
(a) that is undertaken in the car during the period; and
(b) that the holder, or a person acting on behalf of the holder, chooses to record in the document for the purpose of demonstrating the pattern of use of the car during the period;
an entry setting out particulars of:
(c) the date on which the journey began and the date on which it ended; and
(d) the respective odometer readings of the car at the beginning and end of the journey; and
(e) the number of kilometres travelled by the car in the course of the journey; and
(f) the purpose or purposes of the journey;
(g) (Omitted by No 145 of 1995)
(h) (Omitted by No 145 of 1995)
(j) (Omitted by No 145 of 1995)
is made in the English language at, or as soon as reasonably practicable after, the end of the journey.
long service award benefit,
in relation to an employee of an employer, means a benefit provided to the employee, in respect of the employment of the employee, in, or in respect of, a year of tax solely by way of an award in recognition of the existence of a recognised long service period in relation to the employee that is not less than 15 years, but does not include:
(a) a payment of salary or wages or a payment that would be salary or wages if salary or wages included exempt income for the purposes of the Income Tax Assessment Act 1936;
(b) a benefit provided under a non-arm's length arrangement; or
(c) a benefit provided under an arrangement where, having regard to:
(i) the form and substance of the arrangement;
(ii) the matters taken into account in determining the period of recognised long service leave recognised by the award; and
it would be concluded that the arrangement, or any part of the arrangement, was entered into by any of the parties to the arrangement for the sole or dominant purpose of enabling the employer to obtain the benefit of the application of section 58Q.
(iii) the eligibility of other employees of the employer to be awarded benefits in recognition of the existence of recognised long service periods;
(a) long service leave;
(b) long leave;
(c) furlough;
(d) extended leave; or
(e) leave of a similar kind (however described).
low business kilometre car
(Omitted by No 145 of 1995)
meal entertainment benefit
means a benefit that is a meal entertainment benefit because of section 37AC.
meal entertainment fringe benefit
means a fringe benefit that is a meal entertainment benefit.
meal entitlement day,
in relation to a meal provided in a year of tax, in respect of the employment of an employee, to a person (in this definition referred to as the
recipient
) being the employee or an associate of the employee, means a day in respect of which:
(a) in respect of the employment of the employee, the recipient was entitled to be provided (whether without charge or otherwise) with residential accommodation; and
(b) either of the following subparagraphs applies:
(i) the recipient was entitled, pursuant to the provisions of an industrial instrument in respect of the employment of the employee, to be provided (whether without charge or otherwise) with not fewer than 2 meals on that day;
(ii) the following conditions are satisfied:
(A) under an arrangement that was in force during the whole or a part of the year of tax (which whole or part is in this subparagraph referred to as the arrangement period ) in respect of the employment of the employee, the recipient was entitled to be provided (whether without charge or otherwise) with not fewer than 2 meals on that day;
(B) during the arrangement period, the recipient was also entitled under the arrangement to be provided (whether without charge or otherwise) with not fewer than 2 meals on each day during the arrangement period that was a working day in relation to the employee;
(C) pursuant to the arrangement, the recipient was ordinarily provided (whether without charge or otherwise) with not fewer than 2 meals on the days referred to in sub-subparagraph (B).
migrant language training,
in relation to a person, means a course attended by the person where:
(a) at the time of attending the course, the person is, or intends to become, an immigrant to Australia; and
(b) the course is designed to:
(i) teach the English language; or
to persons whose first language is not English.
(ii) impart an understanding of the rights and duties of an Australian citizen and of the way of living of the Australian people;
motor vehicle
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
natural person
does not include a natural person in the capacity of trustee.
nominated business percentage
(Omitted by No 145 of 1995)
non-arm's length arrangement
means an arrangement other than an arm's length arrangement.
non-business accessory,
in relation to a car, means an accessory fitted to the car, whether at the factory where the car was assembled or at some other place, other than an accessory required to meet the special needs of any business operations in relation to which the car is used.
non-deductible entertainment expenditure
means a loss or outgoing to the extent to which:
(a) section 32-5 of the Income Tax Assessment Act 1997 applies to it, or would apply if it were incurred in producing assessable income; and
(b) apart from that section, it would be deductible under section 8-1 of that Act, or would be if it were incurred in producing assessable income;
(on the assumption that section 32-20 of the Income Tax Assessment Act 1997 had not been enacted).
non-deductible exempt entertainment expenditure
means non-deductible entertainment expenditure to the extent to which it is not incurred in producing assessable income.
non-profit company
means a company that is not carried on for the purposes of profit or gain to its individual members and is, by the terms of the company's constituent document, prohibited from making any distribution, whether in money, property or otherwise, to its members.
normal residence,
in relation to an employee, means:
(a) if the employee's usual place of residence is in Australia - the employee's usual place of residence; or
(b) otherwise - either:
(i) the employee's usual place of residence; or
(ii) the place in Australia where the employee usually resides when in Australia.
notional amount of interest,
in relation to a loan in relation to a year of tax, means the amount of interest that would have accrued on the loan in respect of the year of tax if the interest were calculated on the daily balance of the loan at:
(a) where the loan is an eligible pre-commencement loan:
(i) the statutory interest rate in relation to the time when the loan was made; or
whichever is the less;
(ii) the statutory interest rate in relation to the year of tax;
(b) where the loan is not an eligible pre-commencement loan, was made before 3 April 1986 and is a housing loan relating to a dwelling:
(i) the statutory interest rate in relation to the year of tax; or
whichever is the less; or
(ii) 13.5% per annum;
(c) in any other case - the statutory interest rate in relation to the year of tax.
notional taxable value,
in relation to a benefit provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer, means the amount that, if it were assumed that:
(a) in the case of a car benefit - the car benefit was a residual benefit; and
(b) in all cases - the benefit was a fringe benefit in relation to the employer in relation to the year of tax;
would be the taxable value of the fringe benefit in relation to the year of tax.
notional tax amount
has the meaning given by section 110.
notional value,
in relation to the provision of property or another benefit to a person, means the amount that the person could reasonably be expected to have been required to pay to obtain the property or other benefit from the provider under an arm's length transaction.
obligation,
in relation to the payment or repayment of an amount, includes an obligation that is not enforceable by legal proceedings.
odometer records,
in relation to a car, in relation to a period, means a document in which particulars of:
(a) the odometer reading of the car at the commencement of the period; and
(b) the odometer reading of the car at the end of the period; and
(c) if paragraph 162K(2)(b) or 162L(2)(b) applies with effect from a particular date - the odometer readings of both the replacement car and of the original car referred to in that paragraph, as at that date;
(d) (Omitted by No 145 of 1995)
(e) (Omitted by No 145 of 1995)
are entered in the English language, at, or as soon as reasonably practicable after, the respective times to which those odometer readings relate.
offence against this Act
includes an offence against:
(a) the Crimes Act 1914; or
(b) the Taxation Administration Act 1953;
relating to this Act.
officer
means a person appointed or engaged under the Public Service Act 1999.
once-only deduction,
in relation to expenditure, means a deduction in a year of income in respect of a percentage of the expenditure where no deduction is allowable in respect of a percentage of the expenditure in any other year of income.
original assessment date
means:
(a) in relation to an assessment other than an amended assessment - the day on which the assessment was made; and
(b) in relation to an assessment being the first or a subsequent amendment of an assessment to which paragraph (a) applies - the day on which the original assessment was made.
outsider,
in relation to the employment of an employee of an employer, means a person not being:
(a) an employee of the employer;
(b) an employee of an associate of the employer;
(c) an employee of a person (in this definition referred to as the provider ) other than the employer or an associate of the employer who provides benefits to, or to associates of, employees of the employer or an associate of the employer under an arrangement between:
(i) the employer or an associate of the employer; and
(ii) the provider or another person; or
(d) an associate of an employee to whom any of the preceding paragraphs apply.
parent
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
period residual fringe benefit
means a residual fringe benefit that is provided during a period.
(a) a body politic;
(b) a body corporate;
(c) a partnership;
(d) any other unincorporated association or body of persons; and
(e) a person in the capacity of trustee.
personal services
includes services as a personal secretary or chauffeur.
place of residence
, in relation to a person, means:
(a) a place at which the person resides; or
(b) a place at which the person has sleeping accommodation;
whether on a permanent or temporary basis and whether or not on a shared basis.
plug-in hybrid electric vehicle
has the meaning given by subsection 8A(5).
[ CCH Note: Definition of "plug-in hybrid electric vehicle" will be repealed No 86 of 2022, s 3 and Sch 2 item 4, effective 1 April 2025. For application provision, see note under s 8A(2).]
preferential air fare
means an air fare charged by a person in respect of travel over a route, being an air fare the payment of which entitles the person travelling to benefits to which some of the other passengers on the same flight are not entitled.
primary place of employment
, in relation to an employee in relation to a day, means business premises, or associated premises, of the employer of the employee, or of an associate of the employer, where:
(a) if the employee performed duties of his or her employment on that day - on that day; or
(b) in any other case - on the most recent day before that day on which the employee performed duties of his or her employment;
those premises are or were:
(c) the sole or primary place of employment of the employee; or
(d) otherwise the sole or primary place from which or at which the employee performs duties of his or her employment.
private use,
in relation to a motor vehicle, in relation to an employee or an associate of an employee, means any use of the motor vehicle by the employee or associate, as the case may be, that is not exclusively in the course of producing assessable income of the employee.
producing assessable income
includes:
(a) gaining assessable income; or
(b) carrying on a business for the purpose of gaining or producing assessable income.
(a) intangible property; and
(b) tangible property.
property benefit
means a benefit referred to in section 40, but does not include a benefit that is a benefit by virtue of a provision of Subdivision A of Divisions 2 to 10 (inclusive) of Part III.
property fringe benefit
means a fringe benefit that is a property benefit.
(a) in relation to a benefit - includes allow, confer, give, grant or perform; and
(b) in relation to property - means dispose of (whether by sale, gift, declaration of trust or otherwise):
(i) if the property is a beneficial interest in property but does not include legal ownership - the beneficial interest; or
(ii) in any other case - the legal ownership of the property.
provider
, in relation to a benefit, means the person who provides the benefit.
providers portion,
in relation to an expense payment fringe benefit, means whichever of the following amounts is applicable:
(a) the amount of the payment referred to in paragraph 20(a) reduced by the amount of the recipients contribution;
(b) the amount of the reimbursement referred to in paragraph 20(b).
providers published air fare
(Repealed by No 88 of 2013)
provision time,
in relation to the provision of property, means the time when the property is provided.
qualifying air fare
(Repealed by No 88 of 2013)
quarter
means a period of 3 calendar months commencing on 1 January, 1 April, 1 July or 1 October.
rebatable employer
has the meaning given by section 65J.
recipient,
in relation to a benefit, means the person to whom the benefit is provided.
recipients allowance
(Repealed by No 142 of 2012)
recipients allowance period
(Repealed by No 142 of 2012)
recipients benefit,
in relation to a residual benefit, means the benefit to which the residual benefit relates.
recipients contribution:
(a)
in relation to a car parking fringe benefit, a property fringe benefit, a residual fringe benefit or a board fringe benefit, being a fringe benefit provided in respect of the employment of an employee of an employer, means the amount of any consideration paid to the provider or to the employer by the recipient or by the employee in respect of the provision of the recipients parking, the recipients property, the recipients benefit or the recipients meal, as the case may be, reduced by the amount of any reimbursement paid to the recipient in respect of that consideration; and
(b) in relation to an expense payment fringe benefit provided in respect of the employment of an employee of an employer, being a fringe benefit to which paragraph 20(a) applies - the amount paid to the provider or to the employer by the recipient or by the employee in respect of the provision of the fringe benefit.
recipients current benefit,
in relation to a period residual fringe benefit in relation to a year of tax, means the benefit to which the fringe benefit relates, insofar as that benefit was provided during the year of tax.
recipients current housing right,
in relation to a housing fringe benefit in relation to a year of tax, means the housing right to which the fringe benefit relates, insofar as that housing right subsisted during the year of tax.
recipients expenditure,
in relation to an expense payment benefit, means the expenditure incurred by the recipient as mentioned in paragraph 20(a) or (b), as the case requires.
recipients meal,
in relation to a board fringe benefit, means the meal to which the fringe benefit relates.
recipients overall benefit,
in relation to a period residual fringe benefit in relation to a year of tax, means the benefit to which the fringe benefit relates, including that benefit as it was or will be provided at any time outside the year of tax.
recipients overall housing right,
in relation to a housing fringe benefit in relation to a year of tax, means the housing right to which the fringe benefit relates, including that housing right as it subsisted, or will subsist, outside the year of tax.
recipients parking,
in relation to a car parking fringe benefit, means the provision of the parking facilities to which the benefit relates.
recipients portion,
in relation to an expense payment fringe benefit, means the recipients expenditure reduced by whichever of the following amounts is applicable:
(a) the amount of the payment referred to in paragraph 20(a) reduced by the amount of the recipients contribution;
(b) the amount of the reimbursement referred to in paragraph 20(b).
recipients property,
in relation to a property benefit, means the property to which the benefit relates.
recipients rent,
in relation to a housing fringe benefit in relation to an employee of an employer in relation to a year of tax, means the amount of any rent or other consideration paid to the provider or to the employer by the recipient or the employee in respect of the subsistence, during the year of tax, of the recipients housing right reduced by the amount of any reimbursement paid to the recipient in respect of that consideration.
recipients transport
(Repealed by No 88 of 2013)
recipients unit of accommodation,
in relation to a housing fringe benefit, means the unit of accommodation to which the fringe benefit relates.
recognised long service period,
in relation to an employee of an employer, means:
(a) if the employee has an entitlement to long service leave under:
(i) a law of the Commonwealth, a State, a Territory or a foreign country;
(ii) an award, order, determination or industrial agreement in force under any such law;
(iii) a scheme or arrangement by reason of the existence and nature of which the employer has secured an exemption from obligations to comply with any such law relating to long service leave;
(iv) a contract of employment; or
the period by reference to which that long service leave is determined;
(v) the terms of appointment to an office;
(b) if:
(i) long service leave may be made available to the employee as a privilege; and
the period by reference to which that long service leave is determined; or
(ii) the availability of that leave is determined by reference to matters similar to matters by reference to which an entitlement of the kind referred to in paragraph (a) is ordinarily determined;
(c) in any other case:
(i) the period for which the employee has been employed by the employer; or
(ii) such longer period of employment (whether with that employer or any other employer) as might reasonably be expected to be taken into account in determining long service leave if the employee had an entitlement to long service leave.
(a) amusement;
(b) sport or similar leisure-time pursuits; and
(c) recreation or amusement provided on, or by means of, a vehicle, ship, vessel or aircraft.
recreational facility
means a facility for recreation, but does not include a facility for accommodation or a facility for drinking or dining.
reducible fringe benefit
has the meaning given by section 65CC.
registered charity
means an entity that is registered under the Australian Charities and Not-for-profits Commission Act 2012 as the type of entity mentioned in column 1 of item 1 of the table in subsection 25-5(5) of that Act.
registered health promotion charity
means an institution that is:
(a) a registered charity; and
(b) registered under the Australian Charities and Not-for-profits Commission Act 2012 as the subtype of entity mentioned in column 2 of item 13 of the table in subsection 25-5(5) of that Act.
registered public benevolent institution
means an institution that is:
(a) a registered charity; and
(b) registered under the Australian Charities and Not-for-profits Commission Act 2012 as the subtype of entity mentioned in column 2 of item 14 of the table in subsection 25-5(5) of that Act.
registered religious institution
means an institution that is:
(a) a registered charity; and
(b) registered under the Australian Charities and Not-for-profits Commission Act 2012 as the subtype of entity mentioned in column 2 of item 4 of the table in subsection 25-5(5) of that Act.
registered tax agent
has the meaning given by subsection 90-1(1) of the Tax Agent Services Act 2009.
reimburse
includes any act having the effect or result, direct or indirect, of a reimbursement.
relative
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
relevant car documents
(Omitted by No 139 of 1987)
religious practitioner
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
remote area housing benefit
has the meaning given by subsection 58ZC(2).
remote area housing fringe benefit
(Repealed by No 52 of 2000)
rent index number
(a)
in relation to a quarter in relation to a State or Territory - means the index number for the rent sub-group of the Consumer Price Index published by the Australian Statistician in respect of that quarter for the capital city of that State or Territory; or
(b) in relation to a quarter in relation to Australia - means the index number for the rent sub-group of the Consumer Price Index, being the weighted average of the 8 capital cities, published by the Australian Statistician in respect of that quarter.
reportable fringe benefits amount
for a year of income in respect of the employment of an employee by an employer has the meaning given by section 135P or 135Q (as appropriate).
reportable fringe benefits total
of an employee for a year of income has the meaning given by section 135N.
residential fuel
means any form of fuel (including electricity) for use for domestic purposes.
residual benefit
means a benefit that is a residual benefit by virtue of section 45.
residual fringe benefit
means a fringe benefit that is a residual benefit.
retention period,
in relation to a statutory evidentiary document in relation to an employer in relation to a year of tax, means the period that:
(a) commences on:
(i) where the statutory evidentiary document is maintained by or on behalf of the employer - the day on which the document commences to be maintained; or
(ii) in any other case - the day on which the statutory evidentiary document is given to the employer; and
(b) ends:
(i) in a case to which subparagraph (ii) does not apply - at the end of the period of 5 years commencing on the original assessment date in relation to an assessment of the fringe benefits taxable amount of the employer of the year of tax; or
(ii) if, at the end of that period of 5 years, an objection, or a request for amendment of an assessment (not being an objection) relating to a matter, or matters including a matter, to which the statutory evidentiary document is relevant, or a review or appeal arising out of such an objection, has not been determined or otherwise finally disposed of - on the day on which the objection (and any review or appeal arising out of it), the request, or review or appeal (and any appeal or further appeal arising out of it), as the case may be, is determined or so disposed of.
safety award benefit,
in relation to an employee of an employer, means a benefit provided to the employee, in respect of the employment of the employee, solely by way of an award in recognition of the special achievements of the employee, or of the employee and another person or persons, in occupational health matters, or in occupational safety matters, relating to the employment of the employee, or of the employee and that other person or persons, but does not include:
(a) a payment of salary or wages or a payment that would be salary or wages if salary or wages included exempt income for the purposes of the Income Tax Assessment Act 1936;
(b) a benefit provided under a non-arm's length arrangement; or
(c) a benefit provided under an arrangement where, having regard to:
(i) the form and substance of the arrangement;
(ii) the achievements recognised by the award; and
it would be concluded that the arrangement, or any part of the arrangement, was entered into by any of the parties to the arrangement for the sole or dominant purpose of enabling the employer to obtain the benefit of the application of section 58R.
(iii) the eligibility of other employees of the employer to be awarded benefits in recognition of their special achievements in occupational health matters or in occupational safety matters;
(a) a payment from which an amount must be withheld (even if the amount is not withheld) under a provision in Schedule 1 to the Taxation Administration Act 1953 listed in the table, to the extent that the payment is assessable income; and
(aa) a payment from which an amount must be withheld (even if the amount is not withheld) under paragraph 12-110(1)(ca) (about parental leave pay) in Schedule 1 to the Taxation Administration Act 1953, other than a payment under Part 3-3 of the Paid Parental Leave Act 2010 (Payment of instalments by Secretary); and
(b) a payment from which an amount must be withheld (even if the amount is not withheld) under section 12-47 in Schedule 1 to the Taxation Administration Act 1953 where:
(i) the payment is made to a religious practitioner by a religious institution; and
(ii) the activity, or series of activities, for which the payment is made is done by the religious practitioner as a member of the religious institution.
Withholding payments covered Item Provision Subject matter 1 Section 12-35 Payment to employee 2 Section 12-40 Payment to company director 3 Section 12-45 Payment to office holder 4 Section 12-115 Commonwealth education or training payment 5 Section 12-120 Compensation, sickness or accident payment
salary packaging arrangement
means an arrangement under which a benefit is provided to an employee, or an associate of an employee, if:
(a) the benefit is provided in return for the employee agreeing to a reduction in the employee's salary or wages that would not have happened apart from the arrangement; or
(b) the arrangement is part of the employee's remuneration package, and the benefit is provided in circumstances where it is reasonable to conclude that the employee's salary or wages would be greater if the benefit were not provided.
sales tax
(Repealed by No 101 of 2006)
Second Commissioner
means a Second Commissioner of Taxation.
small business entity
has the same meaning as in the Income Tax Assessment Act 1997.
small expense payment fringe benefit
means an expense payment fringe benefit where the recipients expenditure does not exceed $10.
spouse
has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.
standard year of tax
(Repealed by No 178 of 1999)
stand-by airline travel value,
in relation to an airline transport fringe benefit, means:
(a) if the transport is over a domestic route - 50% of the carrier's lowest standard single economy air fare:
(i) for that route; and
(ii) as publicly advertised during the year of tax; or
(b) if the transport is over an international route - 50% of the lowest of any carrier's standard single economy air fare:
(i) for that route; and
(ii) as publicly advertised during the year of tax.
stand-by value
(Repealed by No 88 of 2013)
statutory annual rent amount
(Omitted by No 139 of 1987)
statutory evidentiary document,
in relation to an employer in relation to a year of tax (in this definition called the
current year of tax
), means:
(a) a declaration or other document that is:
(i) given to the employer pursuant to a provision of Part III or of a definition in this subsection that is relevant to that Part; and
(ii) relevant for the purposes of determining:
(A) the taxable value of a fringe benefit provided in, or in respect of, the current year of tax in respect of the employment of an employee of the employer;
(AA) the notional taxable value of a benefit provided in, or in respect of, the current year of tax in respect of the employment of an employee of the employer; or
(B) whether a benefit provided in, or in respect of, the current year of tax in respect of the employment of an employee of the employer is an exempt benefit; and
(aa) records of a nomination under section 162K or 162L that:
(i) are maintained by the employer in relation to the current year of tax; or
(ii) were maintained by the employer in relation to an earlier year of tax but are relevant to the employer's liability under this Act in respect of the current year of tax;
(ab) a record of the business use percentage specified by the employer for the current year of tax; and
(b) a document maintained by the employer in relation to the current year of tax as mentioned in section 10A or paragraph 10B(a) or sub-subparagraph 24(1)(c)(ia)(A) or 24(1)(c)(i)(B); and
(c) log book records or odometer records maintained in relation to a particular car where any of the following subparagraphs apply:
(i) both of the following conditions are satisfied:
(A) the current year of tax is not a log book year of tax of the employer in relation to the car;
(B) section 10A required the records to be maintained by or on behalf of the provider of a car fringe benefit in relation to the employer as a condition of the employer being entitled, in respect of the year of tax that was the last log book year of tax of the employer in relation to the car before the current year of tax, to a reduction in the operating cost of the car on account of business journeys undertaken in the car during that last log book year of tax;
(ii) both of the followingconditions are satisfied:
(A) the current year of tax is not a log book year of tax of the recipient of a loan fringe benefit, an expense payment fringe benefit, a property fringe benefit or a residual fringe benefit in relation to the car while it was held by the recipient during a period in the current year of tax;
(B) section 65E required the records to be maintained by or on behalf of the recipient as a condition of the employer being entitled, in relation to the year of tax that was the last log book year of tax of the recipient before the current year of tax, to a reduction of the taxable value of a fringe benefit on account of business journeys undertaken in the car in that last log book year of tax; and
(d) a no-private-use declaration or a recurring fringe benefit declaration that covers benefits provided in the current year of tax.
statutory food amount,
in relation to a person, in relation to a period in relation to a year of tax, means the amount calculated in respect of that period:
(a) in a case where the person had attained the age of 12 years before the beginning of the year of tax - at the rate of $42 per week; and
(b) in any other case - at the rate of $21 per week.
statutory interest rate:
(a)
in relation to a year of tax, means the benchmark interest rate in relation to the year of tax; or
(b) in relation to a time (in this paragraph referred to as the loan time ) before 1 July 1986, means:
(i) if the loan time occurred after 2 April 1986:
(A) if there is only 1 benchmark interest rate in relation to the loan time - that rate;
(B) if there are 2 or more benchmark interest rates in relation to the loan time - the lower or lowest of those rates; or
(C) if there is no benchmark interest rate in relation to the loan time - such rate as is prescribed;
(ii) if the loan time occurred during a period specified in the Schedule - the rate specified in the Schedule in relation to that period; and
(iii) if the loan time occurred before 1 January 1946 - 3.875% per annum.
stratum unit,
in relation to a dwelling, means a unit on a unit plan registered under a law of a State or Territory that provides for the registration of titles of a kind known as unit titles or strata titles, being a unit that comprises:
(a) a part of a building containing the dwelling, being a part consisting of a flat or home unit; or
(b) a part of a parcel of land, being a part on which the building containing the dwelling is constructed.
superannuation fund
(Omitted by No 181 of 1994)
supplementary car rate,
in relation to a year of tax, means the rate prescribed for the purposes of this definition in relation to the year of tax.
tangible property
means goods and includes:
(a) animals, including fish; and
(b) gas and electricity.
tax-exempt body entertainment benefit
means a benefit referred to in section 38.
tax-exempt body entertainment fringe benefit
means a fringe benefit that is a tax-exempt body entertainment benefit.
taxi
(Repealed by No 64 of 2020)
taxi travel
has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999.
tenancy period,
in relation to a housing benefit in relation to a year of tax, means the period during the year of tax when the housing right to which the benefit relates subsisted.
(a) the regulations; and
(b) Part IVC of the Taxation Administration Act 1953, insofar as that Part relates to this Act.
transitional year of tax
(Repealed by No 178 of 1999)
travel agent
(Repealed by No 88 of 2013)
travel diary,
in relation to particular travel undertaken by the recipient of an expense payment fringe benefit, a property fringe benefit or a residual fringe benefit, means a diary or similar document, in the English language, in which, in relation to each activity engaged in by the recipient:
(a) while undertaking that travel; and
(b) in the course of producing assessable income of the recipient;
the recipient has made, before, at the time of, or as soon as reasonably practicable after, the conclusion of the activity, an entry setting out particulars of:
(c) (Omitted by No 145 of 1995)
(d) the place where the activity was undertaken;
(e) the date and approximate time when the activity commenced;
(f) the duration of the activity; and
(g) the nature of the activity;
and includes a copy of such a diary or document.
Tribunal
(Repealed by No 38 of 2024)
(a) a person appointed or constituted trustee by act of parties, by order or declaration of a court, or by operation of law; or
(b) an executor, administrator or other personal representative of a deceased person; or
(c) a guardian or committee; or
(d) a receiver or receiver and manager; or
(e) a liquidator of a company; or
(ea) an administrator, within the meaning of the Corporations Act 2001, of a company; or
(eb) an administrator of a deed of company arrangement executed by a company under Part 5.3A of that Act; or
(f) a person:
(i) having or taking upon himself or herself the administration or control of any real or personal property affected by any express or implied trust;
(ii) acting in any fiduciary capacity; or
(iii) having the possession, control or management of any real or personal property of a person under any legal or other disability.
underlying business percentage
(Omitted by No 145 of 1995)
unincorporated company
means a company being an unincorporated association or other unincorporated body of persons.
unit of accommodation
includes:
(a) a house, flat or home unit;
(aa) accommodation in a house, flat or home unit;
(b) accommodation in a hotel, hostel, motel or guesthouse;
(c) accommodation in a bunkhouse or any living quarters;
(d) accommodation in a ship, vessel or floating structure; and
(e) a caravan or other mobile home.
unreimbursed expenditure
means expenditure no part of which has been reimbursed.
unreimbursed interest
means interest no part of which has been reimbursed.
workers' compensation law
means a law of the Commonwealth, a State, a Territory or a foreign country that provides for compensation or other benefits for or in respect of work-related trauma suffered by employees without requiring proof of any breach by, or by persons associated with, employers.
work-related counselling:
(a)
in relation to an employee of an employer, means counselling attended by the employee; and
(b) in relation to an associate of an employee of an employer, means counselling attended by the associate where the associate is accompanied by the employee;
where all of the following conditions are satisfied:
(c) the attendance of:
(i) if paragraph (a) applies - the employee; and
at the counselling gives effect to an objective, purpose, plan or policy devised, adopted or required to be followed, by the employer to:
(ii) if paragraph (b) applies - both the employee and the associate;
(iii) improve or maintain the quality of the performance of employees' duties; or
(iv) prepare employees for retirement;
(d) the counselling relates to any of the following matters:
(i) safety;
(ii) health;
(iii) fitness;
(iv) stress management;
(v) personal relationships;
(vi) retirement problems;
(vii) drug or alcohol abuse;
(viii) rehabilitation or prevention of work-related trauma or of other disease or injury;
(ix) first aid;
(x) any similar matter;
(e) there is no benefit that:
(i) is provided in respect of the employment of the employee;
(ii) consists of the provision of, or relates to, the counselling; and
(iii) is provided wholly or principally as a reward for services rendered or to be rendered by the employee.
work-related medical examination,
in relation to a benefit provided in respect of the employment of an employee, means an examination or test carried out by, or on behalf of, an audiometrist or a legally qualified medical practitioner, nurse, dentist or optometrist wholly or principally in order to ascertain the physiological or psychological condition of the employee for any or all of the following purposes:
(a) the commencement of the employment of the employee;
(b) the confirmation of probationary employment of the employee;
(c) a change in the duties or location of the employment of the employee;
(d) the employee becoming a member of a superannuation fund.
work-related medical screening,
in relation to an employee of an employer, means an examination or test carried out by, or on behalf of, an audiometrist or a legally qualified medical practitioner, nurse, dentist or optometrist wholly or principally in order to ascertain whether the employee has suffered, is suffering or is at risk of suffering, from work-related trauma, but does not include an examination or test that is not made available generally to all employees of the employer:
(a) who are likely to have suffered, be suffering or be at risk of suffering, from similar work-related trauma;
(b) who perform the duties of their employment at or near the place where the employee performs the duties of his or her employment; and
(c) whose duties of employment are similar to those of the employee.
work-related preventative health care,
in relation to an employee of an employer, means any form of care provided by, or on behalf of, a legally qualified medical practitioner, nurse, dentist or optometrist wholly or principally in order to prevent the employee suffering from work-related trauma, but does not include a form of care that is not made available generally to all employees of the employer:
(a) who are likely to be at risk of suffering from similar work-related trauma;
(b) who perform the duties of their employment at or near the place where the employee performs the duties of his or her employment; and
(c) whose duties of employment are similar to those of the employee.
work-related trauma,
in relation to an employee, means:
(a) the injury of the employee (including the aggravation, acceleration or recurrence of an injury of the employee);
(b) the contraction, aggravation, acceleration or recurrence of a disease of the employee;
(c) the loss or destruction of, or damage to:
(i) an artificial limb or other artificial substitute;
(ii) a medical, surgical or similar aid or appliance used by the employee; or
(iii) clothing worn by the employee; or
(d) the coming into existence, the aggravation, acceleration or recurrence of any other physiological or psychological condition in relation to the employee that is or may be harmful or disadvantageous to, or result in harm or disadvantage to, the employee;
that is related to any employment of the employee.
work-related travel,
in relation to an employee, means:
(a) travel by the employee between:
(i) the place of residence of the employee; and
(ii) the place of employment of the employee or any other place from which or at which the employee performs duties of his or her employment; or
(b) travel by the employee that is incidental to travel in the course of performing the duties of his or her employment.
year of income
means an income year (within the meaning of the Income Tax Assessment Act 1997).
year of tax
means the year starting on 1 April 1987, and each later year starting on 1 April.
zero or low emissions vehicle
has the meaning given by subsection 8A(2).
[ CCH Note: Modification Declaration FRLI No F2021L00261 (Bankruptcy Regulations 2021: FRLI No F2021L00261, registered on 19 March 2021 and effective from 1 April 2021.)
Subsection 136(1A) of the Act is modified by inserting the subsection:
]
136(1A)
For the purposes of paragraph (f) of the definition of fringe benefi t in subsection (1), paragraph (h) of the paragraphs referred to in that paragraph has effect as if "the employee, or by a relative of the employee," were omitted and "the bankrupt" substituted.
136(2)
In the definition of business premises in subsection (1), premises includes a ship, vessel, floating structure, aircraft or train.
136AA (Repealed) SECTION 136AA FRINGE BENEFITS TAXABLE AMOUNT
(Repealed by Act No 17 of 1999)
Subject to subsection (2), if a person makes a payment to a superannuation fund, the person is taken, for the purposes of paragraph (j) of the definition of fringe benefit in subsection 136(1), to have reasonable grounds for believing that the fund is a complying superannuation fund (as defined by the Income Tax Assessment Act 1997) if, at or before the time when the payment is made, the person has obtained a written statement, provided by or on behalf of the trustee of the fund, that the fund:
(a) is a resident regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993; and
(b) is not subject to a direction under section 63 of that Act.
A person who makes a payment to a superannuation fund is taken not to have reasonable grounds for believing that the fund is a complying superannuation fund if, when the payment is made:
(a) the person:
(i) is the trustee or the manager of the fund; or
(ii) is an associate of the trustee or the manager of the fund; and
(b) the person has reasonable grounds for believing that the fund is not a resident regulated superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 or is operating in contravention of a regulatory provision, as defined in section 38A of that Act.
Section 39 of the Superannuation Industry (Supervision) Act 1993 applies for the purposes of subsection (2) of this section in a corresponding way to the way in which it applies for the purposes of Division 2 of Part 5 of that Act.
For the purposes of this Act, an amount paid (including an amount deemed by section 145 to have been paid) in respect of fringe benefits tax shall not be regarded as also being consideration for or in respect of:
(a) the provision of a benefit; or
(b) any other matter.
For the purpose only of ascertaining whether a person is an employee or an employer within the meaning of this Act, where:
(a) a benefit is provided by a person (in this subsection referred to as the first person ) to, or to an associate of, another person (in this subsection referred to as the second person );
(b) but for this subsection, the benefit would not be regarded as having been provided in respect of the employment of the second person; and
(c) either of the following conditions is satisfied:
(i) if the benefit were provided by the first person by way of a cash payment to the second person, the payment would constitute salary or wages paid by the first person to the second person;
(ii) all of the following conditions are satisfied:
(A) subparagraph (i) does not apply in relation to the benefit;
(B) the first person is an associate of a third person or the benefit is provided under an arrangement between the first person and a third person;
(C) if the benefit were provided by the third person by way of a cash payment to the second person, the payment would constitute salary or wages paid by the third person to the second person;
a definition in subsection 136(1) applies as if the benefit were salary or wages paid to the second person by:
(d) in a case to which subparagraph (c)(i) applies - the first person; or
(e) in a case to which subparagraph (c)(ii) applies - the third person.
(Repealed by No 178 of 1999)
SECTION 138 DOUBLE COUNTING OF FRINGE BENEFITS 138(1) [Employee of employer and associate]
(a) a person (in this subsection referred to as the ``employee'' ) is both:
(i) an employee of an employer (in this section referred to as the ``first employer'' ); and
(ii) an employee of one or more associates of the first employer;
(b) a benefit is provided to, or to an associate of, the employee by the first employer; and
(c) the benefit is a fringe benefit in relation to the first employer;
the benefit is not a fringe benefit in relation to an employer who is an associate of the first employer.
138(2) [2 or more employers]For the purposes of this Act, where, in a case to which subsection (1) does not apply, a benefit provided to, or to an associate of, an employee would, but for this subsection, be a fringe benefit in relation to 2 or more employers, the benefit shall be taken to be a fringe benefit in relation to such one of those employers as the Commissioner determines and not in relation to any other of those employers.
138(3) [Benefit to employee and associate]For the purposes of this Act, where a benefit in respect of the employment of an employee is provided jointly to the employee and one or more associates of the employee, the benefit shall be deemed to have been provided to the employee only.
138(4) [Benefit to 2 or more associates of employee]For the purposes of this Act, where a benefit in respect of the employment of an employee is provided jointly to 2 or more associates of the employee but not to the employee, the benefit shall be taken to have been provided to such one of those associates as the Commissioner determines and not to any other of those associates.
SECTION 138A 138A BENEFIT PROVIDED IN RESPECT OF A YEAR OF TAXA reference in this Act to a benefit provided in respect of a year of tax is a reference to a benefit that is deemed to be provided in respect of the year of tax.
A reference in this Act to a benefit provided in respect of the employment of an employee is a reference to a benefit provided, or originally provided, as the case may be, in respect of that employment.
A reference in this Act to the application or use of a benefit is a reference to the application or use of:
(a) (Repealed by No 88 of 2013)
(b) in the case of a board benefit - the recipients meal;
(c) in the case of a loan benefit - the loan to which the benefit relates;
(d) in the case of a property benefit - the recipients property; or
(e) in the case of a residual benefit - the recipients benefit.
Where an employer furnishes, on different dates, 2 or more returns to the Commissioner under this Act relating to a year of tax, a reference in this Act to the day on which the return relating to that year was furnished is a reference to the earliest of those dates. SECTION 140 ELIGIBLE URBAN AREAS 140(1)
In this Act:
(a) a reference to an eligible urban area is a reference to:
(i) an area that:
(A) is situated in an area described in Schedule 2 to the Income Tax Assessment Act 1936; and
(B) is an urban centre with a census population of not less than 28,000; and
(ii) an area that:
(A) is not situated in an area described in Schedule 2 to the Income Tax Assessment Act 1936; and
(B) is an urban centre with a census population of not less than 14,000; and
(b) a reference to a location that is adjacent to an eligible urban area is a reference to a location that, as at the date of commencement of this section:
(i) was situated less than 40 kilometres, by the shortest practicable surface route, from the centre point of an eligible urban area with a census population of less than 130,000; or
(ii) was situated less than 100 kilometres, by the shortest practicable surface route, from the centre point of an eligible urban area with a census population of not less than 130,000.
140(1A)
However, this Act operates in relation to a housing benefit provided in respect of the employment of an employee of an employer described in subsection (1B) or in respect of the employment of an employee described in subsection (1C), (1CA) or (1D) as if:
(a) a reference in this Act (except in paragraph (1)(a), this paragraph and subsection 140(4)) to an eligible urban area were a reference to an eligible urban area that is an urban centre with a census population of not less than 130,000; and
(b) subparagraph (1)(b)(i) were omitted.
140(1B)
Subsection (1A) applies in relation to each of the following employers:
(a) a public hospital;
(b) (Repealed by No 142 of 2003)
(c) a hospital carried on by a society or association that is a rebatable employer;
(d) an employer that is a registered charity.
140(1C)
Subsection (1A) also applies in relation to an employee:
(a) whose employer is a government body; and
(b) whose duties of employment are exclusively performed in, or in connection with:
(i) a public hospital; or
(ii) a hospital carried on by a society or association that is a rebatable employer.
(iii) (Repealed by No 124 of 2013)
140(1CA)
Subsection (1A) also applies in relation to an employee:
(a) whose employer provides public ambulance services or services that support those services; and
(b) who is predominantly involved in connection with the provision of those services.
140(1D)
Subsection (1A) also applies in relation to an employee:
(a) whose employer is a government body; and
(b) whose duties of employment are performed in a police service.
140(2)
For the purposes of this section, the distance, by the shortest practicable surface route, between a location (in this subsection referred to as the tested location ) and the centre point of an eligible urban area is:
(a) where there is only one location within the eligible urban area from which distances between the eligible urban area and other places are usually measured - the distance, by the shortest practicable surface route, between the tested location and that location; and
(b) where there are 2 or more locations within the eligible urban area from which distances between parts of the eligible urban area and other places are usually measured - the distance, by the shortest practicable surface route, between the tested location and the one of those locations that is in the principal one of those parts.
140(2A)
In applying subsection (2), if the shortest practicable surface route between the tested location and the location mentioned in that subsection includes a route by water, the distance between those locations is taken to be the amount worked out using the following formula:
140(3)
In this section:
census population
, in relation to an urban centre, means the census count on an actual location basis of the population of that urban centre specified in the results of the Census of Population and Housing taken by the Australian Statistician on 30 June 1981, being the results published by the Australian Statistician in the document entitled "Persons and Dwellings in Local Government Areas and Urban Centres".
surface route
means a route other than an air route.
urban centre
means an area that is described as an urban centre or bounded locality in the results of the Census of Population and Housing taken by the Australian Statistician on 30 June 1981, being the results published by the Australian Statistician in the document entitled "Persons and Dwellings in Local Government Areas and Urban Centres".
140(4) [Saving from invalidity]
If, but for this subsection, the whole or any part of a provision of this Act or of the Fringe Benefits Tax Act 1986 would be invalid by reason of the enactment of paragraph (1)(a) of this section, this Act has effect as if that paragraph were omitted and the following paragraph were substituted:
"(a) a reference to an eligible urban area is a reference to an area that is an urban centre with a census population of not less than 14,000; and". SECTION 141 HOUSING LOANS, PRESCRIBED INTERESTS IN LAND OR STRATUM UNITS AND PROPRIETARY RIGHTS IN RESPECT OF DWELLINGS 141(1) [Loans taken to be housing loans]
For the purposes of this Act, where:
(a) a loan is made to, and used by, a person (whether in his or her own right or jointly with his or her spouse) wholly:
(i) to enable the person to acquire a prescribed interest in land on which a building constituting or containing a dwelling was subsequently to be constructed or to acquire a prescribed interest in land and construct, or complete the construction of, such a building on the land;
(ii) to enable the person to construct, or complete the construction of, a building constituting or containing a dwelling on land in which the taxpayer held a prescribed interest;
(iii) to enable the person to acquire a prescribed interest in land on which there was a building constituting or containing a dwelling;
(iv) to enable the person to acquire a prescribed interest in a stratum unit in relation to a dwelling;
(v) to enable the person to extend a building constituting or containing a dwelling, being a building constructed on land in which the taxpayer held a prescribed interest, by adding a room or part of a room to the building or the part of the building containing the dwelling, as the case may be;
(vi) in a case where the person held a prescribed interest in a stratum unit in relation to a dwelling - to enable the person to extend the dwelling by adding a room or part of a room to the dwelling;
(vii) to enable the person to acquire a proprietary right in respect of a dwelling, being a flat or a home unit; or
(viii) to enable the person to repay a loan that was made to, and used by, the person wholly for a purpose mentioned in a preceding subparagraph of this paragraph; and
(b) at the time the loan was made, the dwelling was used or proposed to be used as the person's usual place of residence;
the loan shall be taken to be a housing loan relating to the dwelling.
141(2) [Prescribed interest, proprietary right, non-separated loan](a) where:
(i) a person acquires, holds or held an estate in fee simple in land or in a stratum unit or 2 or more persons acquire, hold or held such an estate in land or in a stratum unit as joint tenants or tenants in common;
(ii) a person acquires, holds or held an interest in land or in a stratum unit as lessee or licensee, or 2 or more persons acquire, hold or held jointly an interest in land or in a stratum unit as lessees or licensees, under a lease or licence, and the Commissioner is satisfied that the lease or licence gives or gave reasonable security of tenure to the lessee or licensee, or to the lessees or licensees, for a period of, or for periods aggregating, not less than 10 years;
(iii) a person acquires, holds or held an interest in land or in a stratum unit as purchaser of an estate in fee simple in the land or in the stratum unit, or 2 or more persons acquired, hold or held an interest in land or in a stratum unit as purchasers of such an estate in the land or in the stratum unit as joint tenants or tenants in common, under an agreement that provides or provided for payment of the purchase price, or a part of the purchase price, to be made at a future time or by instalments; or
that person or those persons shall be taken to acquire or hold, or to have held, as the case may be, a prescribed interest in that land or in that stratum unit, as the case requires; and
(iv) a person acquires, holds or held an interest in land or in a stratum unit as purchaser, or2 or more persons acquire, hold or held jointly an interest in land or in a stratum unit as purchasers, of the right to be granted a lease of the land or of the stratum unit under an agreement that provides or provided for payment of the purchase price, or a part of the purchase price, for the lease to be made at a future time or by instalments and the Commissioner is satisfied that the lease will give or gave reasonable security of tenure, to the lessee or lessees for a period of, or for periods aggregating, not less than 10 years;
(b) where a person acquires, holds or held, or 2 or more persons acquire, hold or held jointly, a right of occupancy of a dwelling, being a flat or a home unit, arising by virtue of the acquiring or holding of shares, or by virtue of a contract to purchase shares, in a company that owns or owned the building that contains the flat or home unit, that person, or those persons, as the case requires, shall be taken to acquire or hold, or to have held, as the case may be, a proprietary right in respect of the dwelling;
(c) where:
(i) a loan that but for this paragraph would be a housing loan relating to a dwelling is made by a person (in this paragraph referred to as ``the lender'' ) to another person (in this paragraph referred to as ``the borrower'' );
the loan referred to in subparagraph (i) is not a housing loan relating to a dwelling.
(ii) the lender does not maintain an account in relation to the loan that is separate and apart:
(A) from any account kept by the lender in relation to any moneys deposited with the lender or applied by the lender on behalf of the borrower otherwise than for the purpose of repaying the loan, in whole or in part, or of paying, in whole or in part, interest that has accrued or will accrue in respect of the loan; and
(B) from any account kept by the lender in relation to any other loan made by the lender to the borrower;
For the purposes of this Act, a loan shall not be taken to be a housing loan relating to a dwelling except as provided in this section.
SECTION 141A BENEFITS INCIDENTAL TO ACQUISITION OR SALE OF PRESCRIBED INTERESTS IN LAND OR STRATUM UNITS AND PROPRIETARY RIGHTS IN RESPECT OF DWELLINGS 141A(1) [Recipients expenditure]For the purposes of this Act, recipients expenditure shall be taken to be incidental to the acquisition or sale of a prescribed interest in land or a stratum unit or of a proprietary right in respect of a dwelling if, and only if:
(a) in the case of an acquisition of a prescribed interest in land on which the employee or associate concerned proposes to construct, or complete the construction of, a building constituting or containing a dwelling - the recipients expenditure is in respect of any of the following matters:
(i) stamp duty;
(ii) legal services;
(iii) agent's services;
(iv) discharge of a mortgage;
(v) expenses of borrowing;
being a matter of a capital nature that is incidental to the construction, or the completion of the construction, of that building;
(vi) any similar matter;
(b) in all cases - the recipients expenditure is in respect of any of the following matters:
(i) stamp duty;
(ii) advertising;
(iii) legal services;
(iv) agent's services;
(v) discharge of a mortgage;
(vi) expenses of borrowing;
being a matter of a capital nature that is incidental to the acquisition or sale of the interest or right; and
(vii) any similar matter;
(c) in all cases - the recipients expenditure is not in respect of:
(i) interest;
(ii) repayments of principal;
(iii) loan service fees;
(iv) the discharge of a mortgage, or expenses of borrowing, where the money borrowed was not applied wholly in respect of the land, stratum unit or proprietary right or in respect of a building on the land;
(v) insurance; or
141A(2) [Recipients benefit]
(vi) rates.
For the purposes of this Act, a recipients benefit shall be taken to be incidental to the acquisition or sale of a prescribed interest in land or a stratum unit or of a proprietary right in respect of a dwelling if, and only if:
(a) the recipients benefit consists of any of the following matters:
(i) advertising;
(ii) legal services;
(iii) agent's services;
(iv) services related to borrowing;
being a matter of a capital nature that is incidental to the acquisition or sale of the interest or right; and
(v) any similar matter;
(b) the recipients benefit does not consist of or relate to:
(i) insurance; or
(ii) services related to borrowing where the money borrowed was not applied wholly in respect of the land, stratum unit or proprietary right or in respect of a building on the land.
In this Act, a reference, in relation to a year of tax in relation to an employee of an employer, to a remote area housing loan connected with a dwelling is a reference to a housing loan relating to the dwelling where:
(a) during the whole of the period (in this subsection referred to as the ``occupation period'' ) in the year of tax when the employee occupied or used the dwelling as his or her usual place of residence:
(i) the dwelling was situated in a State or internal Territory and was not at a location in, or adjacent to, an eligible urban area; and
(ii) the employee was a current employee of the employer and the usual place of employment of the employee was not at a location in, or adjacent to, an eligible urban area;
(b) the common conditions set out in subsection (2E) are satisfied in relation to the occupation period; and
(c) (Omitted by No 95 of 1988)
(d) the loan was not made to the employee pursuant to:
(i) a non-arm's length arrangement; or
(ii) an arrangement that was entered into by any of the parties to the arrangement for the purpose, or for purposes that included the purpose, of enabling the employer to obtain the benefit of the application of section 60.
In this Act, a reference, in relation to a year of tax in relation to an employee of an employer, to remote area housing rent connected with a unit of accommodation is a reference to rent or other consideration payable in respect of the subsistence of a lease or licence in respect of the unit of accommodation where:
(a) during the whole of the period (in this subsection referred to as the ``occupation period'' ) in the year of tax when the employee occupied or used the unit of accommodation as his or her usual place of residence:
(i) the unit of accommodation was situated in a State or internal Territory and was not at a location in, or adjacent to, an eligible urban area; and
(ii) the employee was a current employee of the employer and the usual place of employment of the employee was not at a location in, or adjacent to, an eligible urban area;
(b) the common conditions set out in subsection (2E) are satisfied in relation to the occupation period; and
(c) (Omitted by No 95 of 1988)
(d) the lease or licence was not granted under:
(i) a non-arm's length arrangement; or
(ii) an arrangement that was entered into by any of the parties to the arrangement for the purpose, or for purposes that included the purpose, of enabling the employer to obtain the benefit of the application of section 60.
In this Act, a reference, in relation to a property fringe benefit in relation to a year of tax in relation to an employee of an employer, to remote area residential property is a reference to property that consists of an estate or interest in land:
(aa) on which is situated a dwelling occupied or used by the employee immediately after the provision time as his or her usual place of residence; or
(ab) on which the employee proposes, as at the provision time, to construct, or complete the construction of, a dwelling to be occupied or used by the employee as his or her usual place of residence;
where:
(ac) if paragraph (ab) applies - the Commissioner is satisfied that the employee has pursued sustained reasonable efforts to:
(i)commence the construction, or commence the completion of the construction, of the dwelling within 6 months after the provision time; and
(ii) occupy or use the dwelling as his or her usual place of residence within 18 months after the provision time;
(a) at the provision time:
(i) the land was situated in a State or internal Territory and was not at a location in, or adjacent to, an eligible urban area; and
(ii) the employee was a current employee of the employer and the usual place of employment of the employee was not at a location in, or adjacent to, an eligible urban area;
(b) the common conditions set out in subsection (2E) are satisfied in relation to the provision time; and
(c) (Omitted by No 95 of 1988)
(d) the property was not provided to the employee pursuant to:
(i) a non-arm's length arrangement; or
(ii) an arrangement that was entered into by any of the parties to the arrangement for the purpose, or for purposes that included the purpose, of enabling the employer to obtain the benefit of the application of section 60 or Division 14A of Part III.
In this Act, a reference, in relation to a property fringe benefit in relation to a year of tax in relation to an employee of an employer, to a remote area residential property option fee is a reference to property that consists of a fee paid to the employee by way of consideration in respect of the grant of an option to purchase an estate or interest in land:
(a) held by the employee; and
(b) on which:
(i) there is a dwelling occupied or used by the employee immediately after the provision time as his or her usual place of residence; or
(ii) the employee proposes, as at the provision time, to construct, or complete the construction of, a dwelling to be occupied or used by the employee as his or her usual place of residence;
where:
(c) if subparagraph (b)(ii) applies - the Commissioner is satisfied that the employee has pursued sustained reasonable efforts to:
(i) commence the construction, or commence the completion of the construction, of the dwelling within 6 months after the provision time; and
(ii) occupy or use the dwelling as his or her usual place of residence within 18 months after the provision time;
(d) at the provision time:
(i) the land was situated in a State or internal Territory and was not at a location in, or adjacent to, an eligible urban area; and
(ii) the employee was a current employee of the employer and the usual place of employment of the employee was not at a location in, or adjacent to, an eligible urban area;
(e) the option was granted at or before the time the employee acquired the estate or interest and constituted a recognised remote area housing obligation restricting the disposal of the estate or interest concerned;
(f) the common conditions set out in subsection (2E) are satisfied in relation to the provision time; and
(g) the property was not provided to the employee under:
(i) a non-arm's length arrangement; or
(ii) an arrangement that was entered into by any of the parties to the arrangement for the purpose, or for purposes that included the purpose, of enabling the employer to obtain the benefit of the application of section 60 or Division 14A of Part III.
In this Act, a reference, in relation to a property fringe benefit in relation to a year of tax in relation to an employee of an employer, to remote area residential property repurchase consideration is a reference to property that consists of an amount paid to the employee by way of consideration for the purchase of an estate or interest in land:
(a) held by the employee; and
(b) on which:
(i) there is a dwelling occupied or used by the employee immediately before the provision time as his or her usual place of residence; or
(ii) the employee proposed, as at the time the employee acquired the estate or interest, to construct, or complete the construction of, a dwelling to be occupied or used by the employee as his or her usual place of residence;
where:
(c) if subparagraph (b)(ii) applies - the Commissioner is satisfied that the employee has pursued sustained reasonable efforts to:
(i) commence the construction, or commence the completion of the construction, of the dwelling within 6 months after the time the employee acquired the estate or interest; and
(ii) occupy or use the dwelling as his or her usual place of residence within 18 months after the time the employee acquired the estate or interest;
(d) at the provision time:
(i) the land was situated in a State or internal Territory and was not at a location in, or adjacent to, an eligible urban area; and
(ii) the employee was a current employee of the employer and the usual place of employment of the employee was not at a location in, or adjacent to, an eligible urban area;
(e) at or before the time the employee acquired the estate or interest, the employee entered into a recognised remote area housing obligation restricting the disposal of the estate or interest concerned;
(f) the purchase by the provider of the fringe benefit of the estate or interest is in accordance with that obligation;
(g) the common conditions set out in subsection (2E) are satisfied in relation to the provision time; and
(h) the property was not provided to the employee under:
(i) a non-arm's length arrangement; or
(ii) an arrangement that was entered into by any of the parties to the arrangement for the purpose, or for purposes that included the purpose, of enabling the employer to obtain the benefit of the application of section 60 or Division 14B of Part III.
In this Act, a reference, in relation to an expense payment fringe benefit in relation to a year of tax in relation to an employee of an employer, to recipients expenditure in respect of remote area residential property is a reference to recipients expenditure that is incurred wholly:
(a) to enable the employee to acquire an estate or interest in land on which a dwelling was subsequently to be constructed or to acquire an estate or interest in land and construct, or complete the construction of, a dwelling on the land;
(b) to enable the employee to construct, or complete the construction of, a dwelling on land in which the employee holds an estate or interest;
(c) to enable the employee to acquire an estate or interest in land on which there is a dwelling; or
(d) to enable the employee to extend a dwelling, being a dwelling constructed on land in which the employee holds an estate or interest, by adding a room or part of a room to the dwelling, as the case may be;
where:
(e) if paragraph (a) or (b) applies:
(i) at the time the recipients expenditure was incurred, the employee proposed to occupy or use the dwelling as his or her usual place of residence; and
(ii) the Commissioner is satisfied that the employee has pursued sustained reasonable efforts to:
(A) commence the construction, or commence the completion of the construction, of the building constituting or containing the dwelling within 6 months after the time the recipients expenditure was incurred; and
(B) occupy or use the dwelling concerned as his or her usual place of residence within 18 months after the time the recipients expenditure was incurred;
(f) if paragraph (c) or (d) applies - as soon as reasonably practicable after the time the recipients expenditure was incurred, the dwelling concerned was occupied or used by the employee as his or her usual place of residence;
(g) at the time the recipients expenditure was incurred:
(i) the land was situated in a State or internal Territory and was not at a location in, or adjacent to, an eligible urban area; and
(ii) the employee was a current employee of the employer and the usual place of employment of the employee was not at a location in, or adjacent to, an eligible urban area;
(h) the common conditions set out in subsection (2E) are satisfied in relation to the time the recipients expenditure was incurred; and
(j) the fringe benefit was not provided to the employee under:
(i) a non-arm's length arrangement; or
(ii) an arrangement that was entered into by any of the parties to the arrangement for the purpose, or for purposes that included the purpose, of enabling the employer to obtain the benefit of the application of section 60 or Division 14A of Part III.
In this Act, a reference, in relation to a property fringe benefit or an expense payment fringe benefit in relation to a year of tax in relation to an employee of an employer, to a recognised remote area housing obligation restricting the disposal of an estate or interest in land is a reference to a contractual obligation entered into by the employee with the employer or an associate of the employer not to dispose of the estate or interest concerned except:
(a) to the employer or an associate of the employer; and
(b) for a price specified in, or ascertained in accordance with, the contract concerned;
at any time during a period specified in the contract concerned, being a period that ends not earlier than 5 years after:
(c) in the case of a property fringe benefit where the recipients property is remote area residential property repurchase consideration - the time the employee acquired the estate or interest concerned;
(d) in the case of any other property fringe benefit - the provision time; or
(e) in the case of an expense payment fringe benefit - the time the recipients expenditure was incurred.
For the purposes of the application of this section to a fringe benefit in relation to a year of tax in relation to an employee of an employer, the common conditions in relation to a particular period or in relation to a particular time are as follows:
(a) it is customary for employers in the industry in which the employee was employed during that period or at that time, as the case may be, to provide housing assistance for their employees;
(b) it would be concluded that it was necessary for the employer, during the year of tax, to provide or arrange for the provision of housing assistance for employees of the employer because:
(i) the nature of the employer's business was such that employees of the employer were liable to be frequently required to change their places of residence;
(ii) there was not, at or near the place or places at which the employees of the employer were employed, sufficient suitable residential accommodation for those employees (other than residential accommodation provided by or on behalf of the employer); or
(iii) it is customary for employers in the industry in which the employee was employed during that period or at that time, as the case may be, to provide housing assistance for their employees.
A reference in this section to housing assistance is a reference to:
(a) the provision of residential accommodation without charge or for a rent or other consideration that is less than the market value of the right to occupy or use the accommodation concerned;
(aa) the making of payments in discharge or reimbursement of rent or other consideration incurred by a person in respect of the subsistence of a lease or licence in respect of a unit of accommodation;
(b) the making of a housing loan relating to a dwelling, being a loan in respect of which the rate of interest payable is less than the market rate of interest in respect of the loan concerned;
(c) the making of payments in discharge or reimbursement of expenditure incurred by a person in respect of interest incurred in respect of a housing loan relating to a dwelling;
(d) the provision of residential property without charge or for consideration that is less than the market value of the property at the provision time;
(e) the making of payments in discharge or reimbursement of expenditure incurred by a person in acquiring or constructing residential property; or
(f) the provision of a residential property ownership scheme involving:
(i) the granting by employees of options to purchase employees' residential property; or
(ii) the purchase of employees' residential property.
Nothing in section 74 prevents the amendment of an assessment at any time for the purpose of giving effect to paragraph (2)(ac), (2A)(c), (2B)(c) or (2C)(e).
For the purposes of this Act, recipients expenditure that is in respect of, or a recipients benefit that consists of:
(a) accident insurance, airport or departure tax, passenger movement charge, a passport, a visa or a vaccination; or
(b) any similar matter or thing;
in connection with transport shall be taken to be in respect of the provision of, or to consist of, transport.
For the purposes of this Act, where:
(a) transport is between a particular place and another place;
(b) the transport is provided in consecutive stages; and
(c) apart from this subsection, a particular matter or thing would be in respect of only one, or only some, of those stages;
the matter or thing shall be taken to be in respect of the provision of that transport.
Where a provision of this Act refers to an employee who is required to change his or her usual place of residence in order to perform the duties of his or her employment, a reference in the provision to the employee's new place of employment shall not be taken as implying that the employee was employed when he or she resided at his or her former usual place of residence.
For the purposes of this Act, where:
(a) the recipients unit of accommodation (in this section called the ``shared unit of accommodation'' ) in relation to a housing fringe benefit in relation to an employee in relation to a year of tax consists of accommodation in a house, flat or home unit; and
(b) throughout the tenancy period, there ordinarily subsisted 3 or more other housing fringe benefits, where each of those other housing fringe benefits was a housing fringe benefit:
(i) where the recipients unit of accommodation consisted of accommodation in the house, flat or home unit; and
(ii) in relation to a different employee;
the shared unit of accommodation shall be taken to be eligible shared accommodation in the house, flat or home unit in relation to the year of tax.
For the purposes of this Act, where:
(a) the recipients unit of accommodation in relation to a housing fringe benefit in relation to an employee in relation to an employer in relation to a year of tax consists of accommodation in a hostel or a similar building that is operated wholly or principally for the purpose of providing accommodation for employees of:
(i) the employer; or
(ii) if the employer is a company - the employer or a company that is related to the employer; and
(b) the recipient is not entitled to exclusive use of:
(i) cooking facilities in the hostel or building; or
(ii) more than one bedroom in the hostel or building;
the recipients unit of accommodation shall be taken to be eligible accommodation in an employees hostel in relation to the year of tax.
(a) the recipients expenditure in relation to an expense payment fringe benefit;
(aa) the recipients property in relation to a property fringe benefit; or
(b) the recipients benefit in relation to a residual fringe benefit;
in relation to an employer, in relation to an employee, in relation to a year of tax shall be taken to be in respect of remote area holiday transport if:
(c) in the case of an expense payment fringe benefit - the recipients expenditure is in respect of the provision of transport, or meals or accommodation in connection with transport;
(ca) in the case of a property benefit - the recipients property consists of meals in connection with transport;
(d) in the case of a residual fringe benefit - the recipients benefit consists of:
(i) the provision of transport or accommodation in connection with transport; or
(ii) the receipt of an allowance in respect of the cost of obtaining transport, or of obtaining meals or accommodation in connection with transport;
(e) the transport, accommodation or meals is for a family member;
(f) apart from temporary absences, the employee performs the duties of his or her employment at a place in a State or internal Territory but not at a location in, or adjacent to, an eligible urban area;
(g) the transport is provided wholly or principally to enable the family member to have a holiday for a period of not less than 3 days;
(h) if the transport is for the employee:
(i) the transport is provided while the employee is on recreation leave, being recreation leave of not less than 3 working days; and
(ii) at the completion of that recreation leave, the employee resumes the duties of that employment at the place referred to in paragraph (f);
(j) either of the following subparagraphs applies:
(i) the transport is between:
(A) a place at or near the place referred to in paragraph (f); and
(B) another place;
(ii) the transport is for the spouse, or a child, of the employee, being a spouse or a child of the employee who does not live with the employee at or near the place referred to in paragraph (f), and the transport is between:
(A) a place where the spouse or child, as the case may be, meets the employee; and
(B) another place;
(ja) if the transport is for the spouse, or a child, of the employee - the transport is not provided to enable the spouse or child to accompany the employee:
(i) while the employee is undertaking travel in the course of performing the duties of his or her employment; and
(ii) where the circumstances referred to in subsection 26-30(2) of the Income Tax Assessment Act 1997 do not apply; and
(k) either of the following conditions is satisfied:
(i) the benefit is provided pursuant to the provisions of an industrial instrument relating to the employment of the employee;
(ii) it is customary for employers in the industry in which the employee is employed to provide benefits of the same kind as the benefit provided to the recipient and to provide such benefits in similar circumstances to those that applied in relation to the provision of the benefit to the recipient.
For the purposes of this Act, where:
(a) the recipients expenditure in relation to an expense payment fringe benefit;
(b) the recipients property in relation to a property fringe benefit; or
(c) the recipients benefit in relation to a residual fringe benefit;
is in respect of remote area holiday transport, the fringe benefit shall be taken to be a remote area holiday transport fringe benefit.
(a) one or more remote area holiday transport fringe benefits in relation to a particular employee in relation to a year of tax relate to a holiday for a particular family member; and
(b) the transport to which that fringe benefit or those fringe benefits relates does not consist wholly of transport, by the most direct practicable route, between:
(i) a place at or near the place referred to in paragraph (1)(f); and
(ii) a place in a State or internal Territory, being:
(A) a place at or near the place that was the employee's usual place of residence immediately before the employee began employment at the place referred to in paragraph (1)(f); or
(B) the capital city of the State or Territory in which the place referred to in paragraph (1)(f) is located;
the benchmark travel amount in relation to that fringe benefit or those fringe benefits in relation to that holiday for that family member is:
(c) if either of the following subparagraphs apply:
(i) the employee was entitled to be provided with capital city holiday transport assistance pursuant to the provisions of an industrial instrument relating to the employment of the employee;
the sum of:
(ii) there was a custom in the industry in which the employee was employed such that the employee could have been provided with capital city holiday transport assistance by the employer;
(iii) the return economy air fare in respect of the air service, or the total of the return economy air fares in respect of the air services, to which that capital city holiday transport assistance relates; and
(iv) the expenses that could reasonably be expected to have been incurred in respect of the family member (whether by way of airport transfer, meals, accommodation, accident insurance, airport or departure tax, passenger movement charge, or any similar matter or thing) in accordance with the entitlement or custom to which that capital city holiday transport assistance relates and in connection with travelling on that return service or those return services;
(d) if paragraph (c) does not apply but the following conditions are satisfied in respect of one or more return scheduled passenger air services:
(A) the service was operated, at or about the time the holiday commenced, between eligible places;
the lowest of the return economy air fares for those services;
(B) the nature of the service is such that it would not be unreasonable for the family member to travel on the service;
(e) if neither paragraph (c) nor (d) applies but the following conditions are satisfied in respect of one or more combinations of return scheduled passenger air services:
(A) the combination was operated at or about the time the holiday commenced and would have enabled a person to travel between eligible places;
the total of the return economy air fares for the combination that has the lowest total of economy return air fares; or
(B) the nature of the combination, and of the services in the combination, is such that it would not be unreasonable for the family member to travel on the services;
(f) in any other case - an amount equal to the lowest return fare, or combination of return fares, in respect of travel services in respect of which the following conditions are satisfied:
(A) the service, or combination of services, was operated at or about the time the holiday commenced and would have enabled a person to travel between eligible places;
(B) the nature of the service, or the nature of the combination and of the services included in the combination, is such that it would not be unreasonable for the family member to travel on the service or services.
For the purposes of the application of this section in relation to a benefit provided in respect of the employment of an employee:
(a) a reference in this section to travel, or to the operation of a service or services, between eligible places is a reference to travel, or the operation of a service or services, between:
(i) a place at or near the place referred to in paragraph (1)(f); and
(ii) the capital city of the State or Territory in which the place referred to in paragraph (1)(f) is located;
(b) a reference in this section to the provision of capital city holiday transport assistance to the employee is a reference to:
(i) the making of payments in discharge or reimbursement of expenditure incurred by a person in respect of a return scheduled passenger air service or combination of return scheduled passenger air services operated by a carrier or carriers between eligible places; or
(ii) the provision of transport on such a service or services;
(c) Adelaide shall be treated as the capital city of the Northern Territory; and
(d) Perth shall be treated as the capital city of the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.
For the purposes of this Act, where:
(a) any of the following benefits is provided in, or in respect of, a year of tax to an employee, or to an associate of the employee, in respect of the employment of the employee:
(i) a car benefit relating to a particular car where the application or availability of the car is in respect of the provision of transport;
(ii) an expense payment benefit where the recipients expenditure is in respect of the provision of transport, or meals or accommodation in connection with transport;
(iii) a property benefit where the recipients property consists of meals in connection with transport;
(iv) a residual benefit where the recipients benefit consists of the provision of transport or accommodation in connection with transport;
(b) the transport, meals or accommodation is for a family member;
(c) the transport is required solely because:
(i) the employee is required to live away from his or her usual place of residence in order to perform the duties of that employment;
(ii) the employee, having lived away from his or her usual place of residence in order to perform the duties of that employment, is required to return to his or her usual place of residence:
(A) in order to perform those duties; or
(B) because the employee has ceased to perform those duties; or
(iii) the employee is required to change his or her usual place of residence in order to perform the duties of that employment;
(d) the transport is provided to enable a family member to:
(i) if subparagraph (c)(i) applies - take up residence at or near the place where the employee performs the duties of that employment while living away from his or her usual place of residence;
(ii) if subparagraph (c)(ii) applies - take up residence at the employee's usual place of residence; or
(iii) if subparagraph (c)(iii) applies - take up residence at the employee's new usual place of residence;
(e) if the transport is for the spouse, or a child, of the employee - the transport is not provided to enable the spouse or child to accompany the employee:
(i) while the employee is undertaking travel in thecourse of performing the duties of that employment; and
(ii) where the circumstances referred to in subsection 26-30(2) of the Income Tax Assessment Act 1997 do not apply; and
(f) if the transport is for the employee - the transport is not provided while the employee is undertaking travel in the course of performing the duties of that employment; and
(g) if subparagraph (c)(iii) applies - the benefit is not provided under a non-arm's length arrangement;
the benefit shall be taken to be in respect of relocation transport.
For the purposes of this Act, where:
(a) an employee's usual place of residence is in a particular country (in this section called the ``home country'' );
(b) apart from temporary absences, the employee performs the duties of his or her employment at:
(i) a place outside the home country; or
(ii) 2 or more places outside the home country; and
(c) the employee is required to live outside the home country in order to perform the duties of his or her employment at the place or places referred to in paragraph (b);
the following provisions have effect:
(d) the period commencing when the employee commences to perform the duties of his or her employment at:
(i) if subparagraph (b)(i) applies - the place referred to in that subparagraph; or
and ending when the employee ceases, apart from any temporary absences, to perform those duties at:
(ii) if subparagraph (b)(ii) applies - the first place referred to in that subparagraph at which the employee performs those duties;
(iii) if subparagraph (b)(i) applies - the place referred to in that subparagraph; or
shall be taken to be the overseas posting period of the employee;
(iv) if subparagraph (b)(ii) applies - the last place referred to in that subparagraph at which the employee performs those duties;
(e) the employee shall be taken to be an overseas employee during the overseas posting period;
(f) the place, or each of the places, referred to in paragraph (b) shall be taken to be an overseas employment place.
For the purposes of this Act, where:
(a) any of the following fringe benefits is provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer:
(i)an expense payment fringe benefit where the recipients expenditure is in respect of the provision of transport, or meals or accommodation in connection with transport;
(ii) a property fringe benefit where the recipients property consists of meals in connection with transport;
(iii) a residual fringe benefit where the recipients benefit consists of the provision of transport or accommodation in connection with transport;
(b) the transport, accommodation or meals is for a family member;
(c) the transport is provided wholly or principally to enable the family member to have a holiday for a period of not less than 3 days;
(d) at the time (in this section called the ``outbound travel time'' ) immediately before the commencement of travel undertaken by the family member in connection with that holiday:
(i) the employee was an overseas employee; and
(ii) disregarding days of recreation leave, the employee's overseas posting period was a period of not less than 28 days;
(e) if the transport is for the employee:
(i) the transport is provided while the employee is on recreation leave, being recreation leave of not less than 3 working days; and
(ii) at the completion of that recreation leave, the employee resumes the duties of that employment at the place that was the employee's overseas employment place at the outbound travel time;
(f) either of the following subparagraphs applies:
(i) the transport is between:
(A) a place at or near the place that was the employee's overseas employment place at the outbound travel time; and
(B) another place;
(ii) the transport is for the spouse, or a child, of the employee, being a spouse or a child of the employee who does not live with the employee at the place that was the employee's overseas employment place at the outbound travel time, and the transport is between:
(A) a place where the spouse or child, as the case may be, meets the employee; and
(B) another place;
(g) in the case of an expense payment fringe benefit - the recipients expenditure is not in respect of remote area holiday transport;
(h) in the case of a property fringe benefit - the recipients property is not in respect of remote area holiday transport;
(j) in the case of a residual fringe benefit - the recipients benefit is not in respect of remote area holiday transport;
(k) if the transport is for the spouse, or a child, of the employee - the transport is not provided to enable the spouse or child to accompany the employee:
(i) while the employee is undertaking travel in the course of performing the duties of his or her employment; and
(ii) where the circumstances referred to in subsection 26-30(2) of the Income Tax Assessment Act 1997 do not apply; and
(m) either of the following conditions is satisfied:
(i) the benefit is provided pursuant to the provisions of an industrial instrument relating to the employment of the employee;
(ii) it is customary for employers in the industry in which the employee is employed to provide benefits of the same kind as the benefit provided to the recipient and to provide such benefits in similar circumstances to those that applied in relation to the provision of the benefit to the recipient;
the following provisions have effect:
(n) the fringe benefit shall be taken to be in respect of overseas employment holiday transport;
(p) the benchmark travel amount in relation to the family member in relation to the fringe benefit is:
(i) if either of the following sub-subparagraphs apply:
(A) the employee was entitled to be provided with home country holiday transport assistance pursuant to the provisions of an industrial instrument relating to the employment of the employee;the sum of:
(B) there was a custom in the industry in which the employee was employed such that the employee could have been provided with home country holiday transport assistance by the employer;
(C) the return economy air fare in respect of the air service, or the total of the return economy air fares in respect of the air services, to which that home country holiday transport assistance relates; and
(D) the expenses that could reasonably be expected to have been incurred in respect of the family member (whether by way of airport transfer, meals, accommodation, accident insurance, airport or departure tax, passenger movement charge, or any similar matter or thing) in accordance with the entitlement or custom to which that home country holiday transport assistance relates and in connection with travelling on that return service or those return services;
(ii) if subparagraph (i) does not apply but the following conditions are satisfied in respect of one or more return scheduled passenger air services:
(A) the service was operated, at or about the outbound travel time, between eligible places;the lowest of the return economy air fares for those services;
(B) the nature of the service is such that it would not be unreasonable for the family member to travel on the service;
(iii) if neither subparagraph (i) nor (ii) applies but the following conditions are satisfied in respect of one or more combinations of return scheduled passenger air services:
(A) the combination was operated at or about the outbound travel time and would have enabled a person to travel between eligible places;the total of the economy return air fares for the combination that has the lowest total of economy return air fares; or
(B) the nature of the combination, and of the services in the combination, is such that it would not be unreasonable for the family member to travel on the services;
(iv) in any other case - an amount equal to the lowest return fare, or combination of return fares, in respect of travel services in respect of which the following conditions are satisfied:
(A) the service, or combination of services, was operated at or about the outbound travel time and would have enabled a person to travel between eligible places;
(B) the nature of the service, or the nature of the combination and of the services included in the combination, is such that it would not be unreasonable for the family member to travel on the service or services;
(q) if the transport for a particular family member consists wholly of transport:
(i) in respect of a holiday taken by the family member; and
(ii) by the most direct practicable route between:
(A) a place at or near the place that was the employee's overseas employment place at the outbound travel time; and
(B) a place in the country in which the employee's usual place of residence during the overseas posting period was located;
the fringe benefit shall be taken to be a home country fringe benefit in relation to the holiday for the family member.
For the purposes of the application of this section in relation to a benefit provided in respect of the employment of an employee:
(a) a reference in this section to travel, or to the operation of a service or services, between eligible places is a reference to travel, or the operation of a service or services, between:
(i) a place at or near the place that was the employee's overseas employment place at the outbound travel time; and
(ii) a place at or near the usual place of residence of the employee during the overseas posting period; and
(b) a reference in this section to the provision of home country holiday transport assistance to the employee is a reference to:
(i) the making of payments in discharge or reimbursement of expenditure incurred by a person in respect of a return scheduled passenger air service, or combination of return scheduled passenger air services, operated by a carrier or carriers between eligible places; or
(ii) the provision of transport on such a service or services.
For the purposes of this Act, where:
(a) any of the following benefits is provided in, or in respect of, a year of tax to an employee of an employer in respect of his or her employment:
(i) a car benefit relating to a particular car where the application or availability of the car is in respect of the provision of transport;
(ii) an expense payment benefit where the recipients expenditure is in respect of the provision of transport, or meals or accommodation in connection with transport;
(iii) a property benefit where the recipients property consists of meals in connection with transport;
(iv) a residual benefit where the recipients benefit consists of the provision of transport or accommodation in connection with transport;
(b) the transport, meals or accommodation is for the employee;
(c) the transport is required solely because the employee is required to attend an interview or selection test in connection with an application by the employee for:
(i) employment;
(ii) promotion; or
(iii) job transfer; and
(d) the benefit is not provided under a non-arm's length arrangement;
the benefit shall be taken to be in respect of an employment interview or selection test.
For the purposes of this Act, where:
(a) any of the following benefits is provided in, or in respect of, a year of tax in respect of the employment of an employee:
(i) a car benefit relating to a particular car where the application or availability of the car is in respect of the provision of transport;
(ii) an expense payment benefit where the recipients expenditure is in respect of the provision of transport, or meals or accommodation in connection with transport;
(iii) a property benefit where the recipients property consists of meals in connection with transport;
(iv) a residual benefit where the recipients benefit consists of the provision of transport or accommodation in connection with transport;
(b) the transport is required solely because:
(i) the employee attends:
(A) a work-related medical examination of the employee;
(B) work-related medical screening of the employee;
(C) work-related preventative health care of the employee;
(D) work-related counselling of the employee; or
(E) migrant language training of the employee; or
(ii) an associate of the employee attends:
(A) work-related counselling of the associate; or
(B) migrant language training of the associate;
(c) if subparagraph (b)(i) applies - the transport, meals or accommodation is for the employee; and
(d) if subparagraph (b)(ii) applies - the transport, meals or accommodation is for the associate of the employee;
the benefit shall be taken to be associated with:
(e) a work-related medical examination of the employee;
(f) work-related medical screening of the employee;
(g) work-related preventative health care of the employee;
(h) work-related counselling of the employee or of the associate of the employee; or
(j) migrant language training of the employee or of the associate of the employee;
as the case requires.
For the purposes of Part III, any conduct by a person that effects or results in a discharge or extinction of an obligation of another person to pay an amount to a third person shall be taken to constitute the payment of the amount by the first-mentioned person. SECTION 145 CONSIDERATION NOT IN CASH 145(1) [Deemed money value of property]
For the purposes of this Act, where, upon any transaction, any consideration is given by way of the provision of property (other than money), the money value of that consideration shall be deemed to have been paid or given.
145(2) [Particular provision of Act]Subsection (1) does not apply for the purpose of determining whether an act or thing constitutes the provision of a benefit to which a particular provision of this Act applies.
SECTION 146 146 AMOUNTS TO BE EXPRESSED IN AUSTRALIAN CURRENCYFor the purposes of this Act, all amounts and values shall be expressed in terms of Australian currency. SECTION 147 147 OBLIGATION TO PAY OR REPAY AN AMOUNT
For the purposes of this Act, a person shall be deemed to be under an obligation to pay or repay an amount notwithstanding that the amount is not due for payment or repayment. SECTION 148 PROVISION OF BENEFITS 148(1) [Meaning of provision of benefit to person]
A reference in this Act to the provision of a benefit to a person in respect of the employment of an employee is a reference to the provision of such a benefit:
(a) whether or not the benefit is also provided in respect of, by reason of, by virtue of, or for or in relation directly or indirectly to, any other matter or thing;
(b) whether the employment will occur, is occurring, or has occurred;
(c) whether or not the benefit is surplus to the needs or wants of the recipient;
(d) whether or not the benefit is also provided to another person;
(e) whether or not the benefit is, to any extent, offset by any inconvenience or disadvantage;
(f) whether or not the benefit is provided or used, or requiredto be provided or used, in connection with that employment;
(g) whether or not the provision of the benefit is, or is in the nature of, income; and
(h) whether or not the benefit is provided as a reward for services rendered, or to be rendered, by the employee. 148(2) [Provision to person other than employee or associate]
Where, in respect of the employment of an employee, a benefit is provided by a person (in this subsection referred to as the provider ) to a person other than:
(a) the employee; or
(b) a person who, but for this subsection, is an associate of the employee;
under an arrangement between:
(c) the provider, the employer or an associate of the employer; and
(d) the employee or a person who, but for this subsection, is an associate of the employee;
the recipient of the benefit shall be deemed to be an associate of the employee for the purposes of the application of this Act in relation to the provision of that benefit.
148(2A) [Gifts or contributions]Subsection (2) does not apply if the employee would be entitled to a deduction under Division 30 (Gifts or contributions) of the Income Tax Assessment Act 1997 if the employee, rather than the provider, provided the benefit to the recipient.
(a) but for the prohibition on the doing of an act or thing, the doing of the act or thing would result in the provision of a benefit in respect of the employment of a person by another person (in this subsection referred to as the provider ); and
(b) the prohibition is not consistently enforced;
the provider shall be deemed, for the purposes of this Act, to have provided that benefit in respect of that employment.
148(4) [Employment benefits deemed provided]For the purposes of this Act, a benefit that is received or obtained by an employee, or by an associate of an employee, in respect of the employment of the employee shall be deemed to have been provided by the provider in respect of that employment.
148(5) [Deemed provision not confined to specific circumstances]A provision of this Act that deems a benefit to have been provided in particular circumstances shall not, by implication, limit the meaning of the expression provide when used in relation to the provision of a benefit in other circumstances.
SECTION 149 PROVISION OF BENEFIT DURING A PERIOD 149(1) [Provision for 1 day]For the purposes of this Act, a benefit shall be taken to be provided during a period if, and only if, the benefit:
(a) is provided, or subsists, during a period of more than 1 day; and
(b) is not deemed by a provision of this Act to be provided at a particular time or on a particular day. 149(2) [Subsistence of lease, licence or loan]
For the purposes of subsection (1), but without limiting the generality of that subsection,a benefit constituted by the subsistence of a lease or licence in respect of property, or a benefit in respect of a loan, shall be taken to be provided during the period when the lease or licence subsists or while a person is under an obligation to repay the whole or any part of the loan, as the case may be.
SECTION 149A WHAT IS A GST-CREDITABLE BENEFIT ? 149A(1) [Entitlement to input tax credit under Div 111 of GST Act]A benefit provided in respect of the employment of an employee is a GST-creditable benefit if either of the following is or was entitled to an input tax credit under Division 111 of the A New Tax System (Goods and Services Tax) Act 1999 because of the provision of the benefit:
(a) the person who provided the benefit;
(b) a person who is or was a member of the same GST group (as defined in that Act) as the person who provided the benefit. 149A(2) [Benefits relating to a thing]
A benefit provided in respect of the employment of an employee is also a GST-creditable benefit if:
(a) the benefit consists of:
(i) a thing (as defined in the A New Tax System (Goods and Services Tax) Act 1999); or
(ii) an interest in such a thing; or
(iii) a right over such a thing; or
(iv) a personal right to call for or be granted any interest in or right over such a thing; or
(v) a licence to use such a thing; or
(vi) any other contractual right exercisable over or in relation to such a thing; and
(b) the thing was acquired (within the meaning of that Act) or imported (within the meaning of that Act) and either of the following is or was entitled to an input tax credit under that Act because of the acquisition or importation:
(i) the person who provided the benefit;
(ii) a person who is or was a member of the same GST group (as defined in that Act) as the person who provided the benefit.
For the purposes of this Act, where, in respect of the employment of an employee of an employer, the employee or an associate of the employee uses a credit card issued by a third person to, or to an associate of, the employer to obtain the provision of a benefit on credit from a fourth person, the following provisions have effect:
(a) the fourth person shall be taken to have provided the benefit, in respect of that employment, under an arrangement between:
(i) the employer or the associate of the employer, as the case requires; and
(ii) the fourth person;
(b) where the employer or the associate of the employer, as the case may be, incurred expenditure to the third person under an arm's length transaction in respect of the provision of the benefit - the employer or the associate of the employer, as the case requires, shall be taken to have incurred that expenditure to the fourth person under an arm's length transaction. SECTION 151 151 EMPLOYEE PERFORMING SERVICES FOR PERSON OTHER THAN EMPLOYER
Where the employer of an employee contracts with another person (in this section referred to as the ``purchaser'' ) for the employee to perform services for the purchaser, the following provisions have effect for the purposes of the application of section 54 and the definition of ``board meal'' in subsection 136(1) in relation to the provision of a meal, or food or drink, to the employee in respect of, by reason of, by virtue of, or for or in relation directly or indirectly to, the performance of those services:
(a) premises of the purchaser shall be taken to be eligible premises of the employer;
(b) a meal, or food or drink, provided by the purchaser to the employee shall be taken to have been provided by the employer. 152 (Repealed) SECTION 152 PROVISION OF ENTERTAINMENT
(Repealed by No 121 of 1997) SECTION 152A RECURRING FRINGE BENEFIT DECLARATION 152A(1) Recipient may make recurring fringe benefit declaration.
If a person is provided with a benefit (the declaration benefit ), the person may make a recurring fringe benefit declaration in relation to the declaration benefit.
152A(2) Expense payment fringe benefits covered by declaration.If the recurring fringe benefit declaration covers another benefit (the later benefit ) that is an expense payment fringe benefit:
(a) the recurring fringe benefit declaration is taken to have been made under paragraph 24(1)(e) in respect of the recipients expenditure for that benefit; and
(b) the gross deduction in paragraph 24(1)(b) in relation to the later benefit is taken to be the amount worked out using the formula:
|
Gross expenditure
(later benefit) |
× |
Deductible proportion of
declaration benefit |
where:
Note:
The gross deduction is used as component GD in the formula in paragraph 24(1)(ba).
If the recurring fringe benefit declaration covers another benefit (the later benefit ) that is a property fringe benefit:
(a) the recurring fringe benefit declaration is taken to have been made under paragraph 44(1)(c) in respect of the recipients property for that benefit; and
(b) the gross deduction in paragraph 44(1)(b) in relation to the later benefit is taken to be the amount worked out using the formula:
|
Gross expenditure
(later benefit) |
× |
Deductible proportion of
declaration benefit |
where:
Note:
The gross deduction is used as component GD in the formula in paragraph 44(1)(ba).
If the recurring fringe benefit declaration covers another benefit (the later benefit ) that is a residual fringe benefit:
(a) the recurring fringe benefit declaration is taken to have been made under paragraph 52(1)(c) in respect of the recipients benefit for that benefit; and
(b) the gross deduction in paragraph 52(1)(b) in relation to the later benefit is taken to be the amount worked out using the formula:
|
Gross expenditure
(later benefit) |
× |
Deductible proportion of
declaration benefit |
where:
Note:
The gross deduction is used as component GD in the formula in paragraph 52(1)(ba).
The declaration must be in a form approved in writing by the Commissioner and be made, and given to the employer, by the declaration date for the employer for the FBT year in which the declaration benefit is provided.
152A(6) What benefit declaration covers.The declaration covers all benefits that are identical to the declaration benefit received by the person before the earlier of:
(a) the time when the person revokes the declaration; and
(b) the end of 5 years starting when the declaration is made. 152A(7) [Deductible proportion more than 10 percentage points less]
The declaration does not cover a benefit if the deductible proportion of the benefit is more than 10 percentage points less than the deductible proportion of the declaration benefit.
152A(8) [Earlier declaration revoked]If a taxpayer makes a declaration for a benefit that is an identical benefit to a benefit covered by an earlier declaration, the earlier declaration is revoked.
152A(9) Meaning of deductible proportion .The deductible proportion of a benefit is the percentage worked out using the formula:
| Gross Deduction | × | 100% | ||
| Gross Expenditure |
where:
gross deduction means the gross deduction mentioned in whichever of paragraph 24(1)(b), 44(1)(b) or 52(1)(b) applied to the benefit.
gross expenditure means the gross expenditure mentioned in whichever of paragraph 24(1)(b), 44(1)(b) or 52(1)(b) applied to the benefit.
A benefit is identical to another benefit if the benefits are the same in all respects except for any differences:
(a) that are minimal or insignificant; or
(b) that relate to the value of the benefits; or
(c) in the deductible proportion of the benefits.
If:
(a) the taxable value of one or more fringe benefits of an employer for an FBT year is attributable, in whole or in part, to entertainment facility leasing expenses incurred by the employer in the FBT year; and
(b) the employer elects that this section applies for the FBT year;
then:
(c) the aggregate fringe benefit amount for the employer for the FBT year is to be reduced by so much of the total taxable value of all fringe benefits as is attributable to entertainment facility leasing expenses; and
(d) the aggregate fringe benefit amount for the employer for the FBT year is to then be increased by 50% of the total of entertainment facility leasing expenses incurred by the employer in the FBT year (including expenses not taken into account under paragraph (a)).
Note:
The effect of this is that the employer's aggregate fringe benefits amount (see section 5C) for the FBT year will include 50% of the entertainment facility leasing expenses incurred by the employer for the FBT year.
152B(2)
This section does not apply to a fringe benefit provided under a salary packaging arrangement.
For the purposes of this Act, where:
(a) a person carries on a business that consists of, or includes, the entering into of contracts for the provision of property together with the provision of residual benefits;
(b) the person provides property (other than food or drink) and residual benefits to another person;
(c) but for this section, the provision would constitute a property benefit and a residual benefit; and
(d) the provision is made in the same, or substantially the same, circumstances as a provision of the kind mentioned in paragraph (a);
the provision of the residual benefit shall be taken to include the provision of the property and the provision of the property shall not be taken to constitute a property benefit.
For the purposes of this Act, where a person does anything that results in the creation of property in another person, the first-mentioned person shall be deemed to have provided that property to the other person at the time when the property comes into existence. SECTION 155 USE OF PROPERTY BEFORE TITLE PASSES 155(1) [Property provided when use obtained]
Subject to subsection (2), where, under a transaction, the use of property is obtained by a person for a period at the end of which the title to the property will or may pass to the person, the property shall be deemed, for the purposes of this Act, to have been provided to the person at the time when the use of the property was obtained by the person.
155(2) [Where property does not pass]Property shall not be taken to have been provided to a person by virtue of subsection (1) if the period for which the person has the use of the property terminates without the title to the property passing to the person, and nothing in section 74 prevents the amendment of an assessment for the purpose of giving effect to this subsection.
SECTION 156 156 SUPPLY OF ELECTRICITY OR GAS THROUGH RETICULATION SYSTEMFor the purposes of this Act, the supply of electricity or gas through a reticulation system shall be deemed not to constitute the provision of property. SECTION 157 CHRISTMAS ISLAND AND COCOS (KEELING) ISLANDS 157(1) [Internal Territory]
A reference in this Act to an internal Territory includes a reference to the Territory of Christmas Island and to the Territory of Cocos (Keeling) Islands.
For the purposes of this Act, a location in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands shall be taken not to be situated in, or adjacent to, an eligible urban area.
For the purposes of this Act, a company shall be taken to be related to another company if:
(a) one of the companies is a subsidiary of the other company; or
(b) each of the companies is a subsidiary of the same company. 158(2) [Where company a subsidiary]
For the purposes of this section, a company (in this subsection referred to as the ``subsidiary company'' ) shall be taken to be the subsidiary of another company (in this subsection referred to as the ``holding company'' ) if:
(a) all the shares in the subsidiary company are beneficially owned by:
(i) the holding company;
(ii) a company that is, or 2 or more companies each of which is, a subsidiary of the holding company; or
(iii) the holding company and a company that is, or 2 or more companies each of which is, a subsidiary of the holding company; and
(b) there is no agreement in force by virtue of which any person is in a position to affect rights of the holding company or of a subsidiary of the holding company in relation to the subsidiary company. 158(3) [Subsidiary of subsidiary]
For the purposes of this section, where a company is a subsidiary of another company (including a company that is such a subsidiary by virtue of another application or other applications of this subsection), every company that is a subsidiary of the first-mentioned company shall be taken to be a subsidiary of that other company.
158(4) [Person affecting rights of company]For the purposes of subsection (2), a person shall be taken to be in a position to affect any rights of a company in relation to another company if that person has a right, power or option (whether by virtue of any provision in the constituent document of either of those companies or by virtue of any agreement or instrument or otherwise) to acquire those rights or do an act or thing that would prevent the first-mentioned company from exercising those rights for its own benefit or receiving any benefits accruing by reason of those rights.
SECTION 159 ASSOCIATES AND RELATIVES 159(1)(Repealed by No 101 of 2006)
159(2) [Particular associates]
For the purposes of this Act, but without limiting the generality of the expression ``associate'' :
(a) a company that is related to another company shall be deemed to be an associate of that other company;
(b) the Commonwealth shall be deemed to be an associate of each authority of the Commonwealth;
(c) an authority of the Commonwealth shall be deemed an associate of each other authority of the Commonwealth;
(d) a State shall be deemed to be an associate of each authority of the State;
(e) an authority of a State shall be deemed to be an associate of each other authority of the State;
(f) a Territory shall be deemed to be an associate of each authority of the Territory; and
(g) an authority of a Territory shall be deemed to be an associate of each other authority of the Territory. 159(3) [Treated as related companies]
Where a person is an associate of another person by virtue of paragraph (2)(b), (c), (d), (e), (f) or (g), Part III has effect as if those persons were companies and were related to each other.
159(4) [Income tax definition of associate]For the purposes of this Act, section 318 of the Income Tax Assessment Act 1936 has effect as if "a partnership in which the primary entity is a partner" were omitted from paragraphs (1)(b) and (2)(a) of that section and "a partnership in which the primary entity is or was a partner (whether or not the partnership still exists)" were substituted.
(a) a person (in this subsection referred to as the ``former employer'' ) disposes of the whole or a part of a business or undertaking to another person (in this subsection referred to as the ``new employer'' ); and
(b) an arrangement relating to the disposal provides for the new employer or an associate of the new employer to provide or to continue to provide, or to arrange for the provision or continued provision of, benefits in respect of the employment of a person (in this subsection referred to as the ``former employee'' ) by the former employer;
the following provisions have effect:
(c) this Act applies, in relation to any benefit so provided or continued to be provided, as if the employment of the former employee by the former employer were, instead, employment by the new employer;
(d) where the arrangement provides for the new employer or an associate of the new employer to assume, or arrange for the assumption of, the rights of:
(i) a lender under a loan;
(ii) a lessor under a lease; or
being a loan, lease or licence, as the case may be, granted in respect of the employment of the former employee by the former employer, this Act has effect, after the assumption of those rights, as if the employment of the former employee by the former employer were, instead, employment by the new employer and the loan, lease or licence had been granted in respect of that employment by the person who assumed the rights. 160(2) [Change in partnership]
(iii) a licensor under a licence;
Where, for any reason, including:
(a) the formation or dissolution of a partnership; or
(b) a variation in the constitution of a partnership, or in the interests of the partners;
a change has occurred in the ownership of, or in the interests of persons in, property constituting the whole or a part of the assets of a business and the person, or one or more of the persons, who owned the property before the change has or have an interest in the property after the change, this Act has effect as if the persons who owned the property before the change had, on the day on which the change occurred:
(c) disposed of the whole of that business to the person, or all of the persons, by whom the property is owned after the change; and
(d) disposed of the whole of the property to the person, or all of the persons, by whom the property is owned after the change for an amount equal to the notional value of the property. 160(3) [Trustees one employer]
For the purposes of this Act, the trustee or trustees from time to time of a trust, being an employer or employers, shall be deemed to be one employer.
SECTION 161 161 BUSINESS JOURNEYS IN CARFor the purposes of this Act, where:
(a) during a particular period during a day, 2 or more journeys are undertaken in a car; and
(b) each of the journeys in the car during that period is a business journey;
the journeys referred to in paragraph (b) shall be deemed to constitute a single journey.
In this Act, unless the contrary intention appears, a reference to a car held by a person is a reference to:
(a) a car owned by the person;
(b) a car leased to the person; or
(c) a car otherwise made available to the person by another person. 162(2) [Car fringe benefits - operating cost method]
For the purposes of the application of section 10 in relation to car fringe benefits in relation to an employer in relation to a particular car, the car shall be taken to be held by a particular person if, and only if, the car is held by the person for use in providing those fringe benefits (whether or not the car was used for any other purpose while it was so held).
For the purposes of the application of sections 19, 24, 44 and 52 in relation to a loan fringe benefit, expense payment fringe benefit, property fringe benefit or residual fringe benefit, as the case requires, a car shall be taken to be held by the recipient of the fringe benefit if, and only if, the car is owned or leased by the recipient for use in the course of producing assessable income of the recipient (whether or not the car was used for any other purpose while it was so owned or leased).
A reference in this Act to a period during which a car was held by a person is a reference to a period during which the car was continuously held by the person.
For the purposes of the application of sections 19, 24, 44 and 52 in relation to a loan fringe benefit, expense payment fringe benefit, property fringe benefit or residual fringe benefit, as the case requires, the question whether a car is used by a person for the purposes of producing assessable income shall be determined in the same manner as the question whether property is used by a taxpayer for the purpose of producing assessable income is determined under the Income Tax Assessment Act 1997.
Unless the contrary intention appears, a reference in this Act to a period in a year of tax during which a person held a car is a reference to the period that:
(a) commences on whichever of the following times is applicable:
(i) if the person held the car at the time of commencement of the year of tax - that time;
(ii) in any other case - the time in the year of tax when the person commenced to hold the car; and
(b) ends at whichever of the following times is applicable:
(i) if the person continued to hold the car until the time of the end of the year of tax - that time;
(ii) in any other case - the time in the year of tax when the person ceased to hold the car.
(Repealed by No 145 of 1995)
(Repealed by No 145 of 1995)
For the purposes of this Act, the number of kilometres that represents a reasonable estimate of the number of business kilometres applicable to a car held by a person during a period in a year of tax shall be determined having regard to all relevant matters including, but without limiting the generality of the foregoing:
(a) any log book records, odometer records or other records maintained by or on behalf of the person; and
(b) any variations in the pattern of use of the car.
For the purposes of the application of section 10 in relation to a car fringe benefit in relation to an employer in relation to a particular car while it was held by a particular person (in this subsection called the ``provider'' ) during a particular period (in this subsection called the ``holding period'' ) in a year of tax (in this subsection called the ``current year of tax'' ), the current year of tax is a log book year of tax of the employer in relation to the car if, and only if:
(a) none of the previous 4 years was a log book year of tax of the employer in relation to the car;
Note:
This paragraph will apply if it is the first year that the employer uses the cost basis method.
(b) the employer elects that the current year of tax be treated as a log book year of tax of the employer in relation to the car; or
(c)-(g) (Omitted by No 145 of 1995)
(h) the Commissioner causes a notice in writing to be served on the employer before the commencement of the current year of tax requiring the employer to treat the current year of tax as a log book year of tax of the employer in relation to the car.
For the purposes of the application of sections 19, 24, 44 and 52 in relation to a loan fringe benefit, expense payment fringe benefit, property fringe benefit or residual fringe benefit, as the case requires, in relation to an employer in relation to a particular car held by the recipient of the fringe benefit during a particular period (in this subsection called the ``holding period'' ) in a year of tax (in this subsection called the ``current year of tax'' ), the current year of tax is a log book year of tax of the recipient in relation to the car if, and only if:
(a) none of the previous 4 years was a log book year of tax of the employer in relation to the car;
(b) the employer elects that the current year of tax be treated as a log book year of tax of the recipient in relation to the car; or
(c)-(g) (Omitted by No 145 of 1995)
(h) the Commissioner causes a notice in writing to be served on the employer before the commencement of the current year of tax requiring the employer to treat the current year of tax as a log book year of tax of the recipient in relation to the car.
An election under this section is to be in writing.
For the purposes of the application of section 10 in relation to a car fringe benefit in relation to an employer in relation to a car while it was held by a particular person during a particular period (in this subsection called the ``holding period'' ) starting or ending in a year of tax, a reference to the applicable log book period is a reference to:
(a) if the holding period is a period of less than 12 weeks - the holding period; or
(b) in any other case - a continuous period of not less than 12 weeks that begins and ends during the holding period.
For the purposes of the application of sections 19, 24, 44 and 52 in relation to a loan fringe benefit, expense payment fringe benefit, property fringe benefit or residual fringe benefit, as the case requires, in relation to an employer in relation to a car held by the recipient of the fringe benefit during a particular period (in this subsection called the ``holding period'' ) starting or ending in a year of tax, a reference to the applicable log book period is a reference to:
(a) if the holding period is a period of less than 12 weeks - the holding period; or
(b) in any other case - a continuous period of not less than 12 weeks that begins and ends during the holding period.
The applicable log book period must be specified in the log book records for the period at, or as soon as possible after, the end of the period.
(Repealed by No 145 of 1995)
This section has effect for the purposes of the application of section 10 in relation to car fringe benefits in relation to an employer in relation to a year of tax (in this section called the ``current year of tax'' ) or a subsequent year of tax.
162K(2) [Nomination of replacement car to replace original car]Where the employer nominates a particular car (in this section called the ``replacement car'' ) as having replaced another car (in this section called the ``original car'' ) with effect from a specified date in the current year of tax:
(a) the original car shall be treated, with effect from that date, as a different car; and
(b) the replacement car shall be treated, with effect from that date, as the same car as the original car.
A nomination shall be made in writing on or before the declaration date for the current year of tax.
A nomination shall specify the make, model and registration number (if any) of the original car and of the replacement car.
162K(4) [Application]This section does not apply for the purposes of the application of subsection 10(5) or section 11 or 12.
This section has effect for the purposes of the application of sections 19, 24, 44 and 52 in relation to a loan fringe benefit, expense payment fringe benefit, property fringe benefit or residual fringe benefit, in relation to an employer in relation to a year of tax (in this section called the ``current year of tax'' ) or a subsequent year of tax.
162L(2) [Nomination of replacement car to replace original car]Where the employer nominates a particular car (in this section called the ``replacement car'' ) as having replaced another car (in this section called the ``original car'' ) with effect from a specified date in the current year of tax:
(a) the original car shall be treated, with effect from that date, as a different car; and
(b) the replacement car shall be treated, with effect from that date, as the same car as the original car.
A nomination shall be made in writing on or before the declaration date for the current year of tax.
A nomination shall specify the make, model and registration number (if any) of the original car and of the replacement car.
(Repealed by No 145 of 1995)
For the purposes of this Act, a motor vehicle shall be taken to be registered in a particular place if it may be driven on a public road in that place without contravening the law in force in that place.
(Repealed by No 2 of 2015)
For the purposes of this Act, a person shall be taken to have been a non-resident at a particular time if the person was not a resident of Australia at that time.
164(2) [Resident]For the purposes of this Act, a person shall be taken to have been a resident of Australia at a particular time if:
(a) in the case of a natural person:
(i) the person resided in Australia at that time; or
(ii) except in the case where the Commissioner is satisfied that that person's permanent place of residence at that time was outside Australia - the person was domiciled in Australia at that time;
(b) in the case of an incorporated company:
(i) the company was incorporated in Australia at that time; or
(ii) at that time the company carried on business in Australia and:
(A) had its central management and control in Australia; or
(B) had its voting power controlled by shareholders who were residents of Australia; or
(c) in the case of a partnership or an unincorporated company - any member of the partnership or company was a resident of Australia at that time by virtue of paragraph (a) or (b). SECTION 165 PARTNERSHIPS 165(1) [Partnership a person]
Subject to this section, this Act applies to a partnership as if the partnership were a person.
165(2) [Position of partners]Where, but for this subsection, an obligation would be imposed on a partnership by virtue of the operation of subsection (1), the obligation is imposed on each partner, but may be discharged by any of the partners.
165(3) [Joint and several liability]Where, by virtue of the operation of subsection (1), an amount is payable under this Act by a partnership, the partners are jointly and severally liable to pay that amount.
165(4) [Offences]Where, by virtue of the operation of subsection (1), an offence against this Act is deemed to have been committed by a partnership, that offence shall be deemed to have been committed by each of the partners.
165(5) [Defence to prosecution]In a prosecution of a person for an offence by virtue of this section, it is a defence if the person proves that the person:
(a) did not aid, abet, counsel or procure the act or omission by virtue of which the offence is deemed to have been committed; and
(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission by virtue of which the offence is deemed to have been committed. 165(6) [Taxation Administration Act]
A reference in this section to this Act includes a reference to Part III of the Taxation Administration Act 1953 to the extent to which that Part of that Act relates to this Act.
SECTION 166 UNINCORPORATED COMPANIES 166(1) [Unincorporated company a person]Subject to this section, this Act applies to an unincorporated company as if the company were a person.
166(2) [Position of members]Where, but for this subsection, an obligation would be imposed on an unincorporated company by virtue of the operation of subsection (1), the obligation is imposed on each member of the committee of management of the company, but may be discharged by any of those members.
166(3) [Offences]Where, by virtue of the operation of subsection (1), an offence against this Act is deemed to have been committed by an unincorporated company, that offence shall be deemed to have been committed by each member of the committee of management of the association.
166(4) [Defence to prosecution]In a prosecution of a person for an offence by virtue of this section, it is a defence if the person proves that the person:
(a) did not aid, abet, counsel or procure the act or omission by virtue of which the offence is deemed to have been committed; and
(b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission by virtue of which the offence is deemed to have been committed. 166(5) [Taxation Administration Act]
A reference in this section to this Act includes a reference to Part III of the Taxation Administration Act 1953 to the extent to which that Part of that Act relates to this Act.
SECTION 167 167 OFFENCES BY GOVERNMENT BODIESNotwithstanding anything in this Act or any other Act, a government body shall not be taken to have committed an offence against this Act.
Subsection 136(1)
STATUTORY INTEREST RATES FOR PERIODS BETWEEN 1 JANUARY 1946 AND 2 APRIL 1986
| Period | ||
| Date on which period commenced | Date on which period ended | Interest rate (% per annum) |
| 1 January 1946 | 1 August 1952 | 3.875 |
| 2 August 1952 | 31 March 1956 | 4.5 |
| 1 April 1956 | 28 February 1961 | 5.0 |
| 1 March 1961 | 10 April 1963 | 5.25 |
| 11 April 1963 | 31 March 1965 | 4.75 |
| 1 April 1965 | 31 July 1968 | 5.0 |
| 1 August 1968 | 31 March 1970 | 5.5 |
| 1 April 1970 | 30 September 1973 | 6.25 |
| 1 October 1973 | 13 September 1974 | 7.25 |
| 14 September 1974 | 28 February 1978 | 9.25 |
| 1 March 1978 | 31 March 1980 | 8.75 |
| 1 April 1980 | 31 July 1980 | 9.25 |
| 1 August 1980 | 31 December 1980 | 9.75 |
| 1 January 1981 | 31 August 1981 | 10.75 |
| 1 September 1981 | 31 March 1982 | 11.75 |
| 1 April 1982 | 31 January 1983 | 12.75 |
| 1 February 1983 | 30 September 1983 | 12.50 |
| 1 October 1983 | 30 November 1983 | 12.00 |
| 1 December 1983 | 15 April 1985 | 11.50 |
| 16 April 1985 | 14 July 1985 | 12.00 |
| 15 July 1985 | 30 September 1985 | 12.50 |
| 1 October 1985 | 2 April 1986 | 13.50 |