Based on a literal interpretation of the guidance that a car must be parked at a 'work car park' for the minimum parking period, uncertainty arises where an employee parks at one or more 'work car parks' on the same day, between 7.00am-7.00pm, as a car parking benefit (subject to the other conditions being satisfied) will arise where a car is parked for more than four hours.

Such guidance is appropriate where there are multiple parking facilities proximous to an individual's only or primary place of employment, however, it may result in misapplication of the law where employees, given the nature of their work, are required to travel significantly to a number of varying business locations and where work car parks are available. We think this should be appropriately qualified in the final Ruling.

The final Ruling should address the situation where, if there are multiple work car parks in and around the employee's primary place of employment, which of the multiple car parks on that day should be included from a taxable value perspective and at what value?

The primary place of employment is the place from which, or at which, the employee performs their employment duties on any given day. It includes temporary or alternative places of employment and may not necessarily be the employee's regular place of employment.

Where there are multiple places of employment on a particular day, the primary place of employment on that day is the place where, considering the nature of the employment, the time spent and the substance of the duties carried out, a reasonable person would conclude that particular place to be the employee's primary place of employment.

We consider that the requirement that a car park must be 'in the vicinity' of the employee's primary place of employment on a given day (see paragraph 39A(1)(f) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA)) provides an effective qualifier in situations where an employee is required to travel between business premises. The employee can only have one 'primary place of employment' on any given day. Subdivision B in Division 10A of the FBTAA provides guidance on how to calculate the taxable value of a car park fringe benefit where there is more than one commercial parking station near the employee's primary place of employment (see paragraph 39C(b) of the FBTAA). Also, an employer may elect to use a different taxable value calculation other than the default commercial parking station method.

The draft Ruling does not provide practical guidance for when a work car park will be 'in the vicinity of' an employee's primary place of employment. Although the Full Federal Court was not prepared to fix a one-kilometre limit for this in Virgin Blue Airlines Pty Limited ACN 090 670 965 v Commissioner of Taxation [2010] FCA 631, the actual distance was only two kilometres.

It would be valuable if the ATO provided illustrative examples to guide this consideration for the employers.

The final Ruling should provide some clarity to taxpayers by saying the work car park should be within a reasonable walking distance of the place of employment.

The ATO should explain where it intends to draw the line as to when car parks are in the vicinity of an employee's primary place of employment and where they are not.

To exemplify the decision in Virgin Blue, Example 1 of the final Ruling has been included. We will also update the Fringe benefits tax - a guide for employers (the Guide).

We will continue to evaluate each situation on its merits.

The ATO will be challenged to determine whether a parking station is considered 'commercial', both from an operator's and surrounding businesses' perspective. The ATO should refine its interpretation to limit the definition of commercial parking stations to car parking facilities where the purpose is to provide parking to the public. This will not only ease the administrative and compliance burdens on the ATO and businesses, but also ensure that the basis of the lowest representative fee is reflective of a purposeful commercial market for car parking spaces rather than incorporate opportunistic offerings to the public which are based on excess parking capacity.

The ATO view expressed in the draft Ruling is that '[a] facility is 'commercial' if it is run to make a profit ...'. While this approach seems conceptually sound, in certain circumstances it may be difficult to determine whether the amount being charged by the owner of a car parking facility has been set with a view to making a profit.

It is unreasonable to expect an employer within the one-kilometre radius to ascertain whether a car parking station is run to make a profit. It is similarly unreasonable to expect the relevant car parking facility to make such details available to surrounding employers for the purposes of determining whether a fringe benefits tax (FBT) obligation arises.

It is submitted that an operator of a parking facility would not be willing to provide information to surrounding businesses whether the parking facility is run at a profit or loss. As such, it is unclear how surrounding businesses are meant to determine whether parking constitutes a commercial parking facility.

The final Ruling should indicate all-day parking fees at or below a certain amount means the car park is not being run to make a profit and is therefore not a commercial parking station, and include specific guidance as to the factors that you consider would be relevant in determining whether a car parking facility is 'commercial'.

In particular, the final Ruling now explains that the ordinary meaning of 'commercial' is not to be viewed in isolation. 'Commercial' informs the ordinary meaning of the compound phrase 'commercial car parking facility'.

Paragraphs 22 and 23 of the final Ruling provide a two-stage test to assist employers to objectively evaluate a particular car parking facility and reasonably conclude whether it is or is not a commercial car parking facility.

Firstly, if an employer observes a particular car parking facility is run by a car parking operator, that facility is a commercial car parking facility.

Secondly, if the parking facility is not run by a car parking operator, the final Ruling outlines three hallmark characteristics of commercial car parking facilities against which an employer can objectively evaluate a particular car parking facility.

Employers do not need to make enquiries with a particular parking facility as to whether it is run to make a profit or otherwise make subjective determinations about a particular facility.

It should also include an example of where the parking facility of the not-for-profit entity, hospital or shopping centre was operated by a commercial parking station operator for profit to compare to the other examples.

Draft Chapter 16 of the Guide notes the all-day fee for parking must be more than nominal. As this may be a contentious issue in audits and rulings, the final Ruling should clearly state what amount the ATO considers to be nominal.

Do all of the criteria listed as features of a permanent commercial parking station have to be satisfied? Is one factor more significant, are the factors exhaustive, etc?

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.

The times of sunrise and sunset occur at different times throughout the year and are clearly different for geographic locations.

The definition in the draft Ruling is deceptive. A shift worker could commence work at 2.00pm and finish at 10.00pm and park for over six hours during daylight hours. The draft Ruling would suggest this does not qualify for all-day parking when clearly under the legislation at least at certain times of the year it does.

The scenario presented misunderstands the Ruling's discussion of all-day parking and what constitutes the provision of a car parking benefit in section 39A of the FBTAA. All-day parking is relevant to determining whether the 'lowest representative fee' (see paragraphs 51 to 56 of the final Ruling) charged by any commercial parking station for all-day parking within a one-kilometre radius of the work car park exceeds the car parking threshold (the car parking threshold requirement) (see paragraph 6 of the final Ruling). An employee's work pattern is not relevant to this.

Further guidance should be provided as to when the provision of parking by a business will be considered to be in the ordinary course of its business.

If finalised in its current form, due to the unclear wording in the draft Ruling, employers will be required to make assumptions about unrelated businesses (over which they have no oversight or ability to request confidential information) in order to determine whether the parking is run at a profit or loss and also whether it is part of the ordinary course of business for the operator.

Further guidance regarding the utilisation of online platforms for car parking will be provided in the Guide.

The Ruling should clarify whether the following are commercial parking stations:

•

car park access is embedded in a membership price

•

subscription or time share-based access models, such as car parking clubs where car spaces are pooled and can be accessed for an annual fee

•

online platforms acting as agents for individuals offering car spaces for rent.

Refer to our response to Issue 4 of this Compendium in which we explain that the determination of whether a particular car parking facility is a commercial car parking facility depends on an evaluation of objectively-observed characteristics of the facilities rather than the internal operations or subjective motives of the facility operator.

Paragraphs 41 and 42 of the final Ruling explains when it is determined that car spaces are available to members of the public. When there are substantial limits on the availability of all of the car spaces at a commercial parking facility, the facility's car spaces are not available to the public.

In addition, guidance regarding the utilisation of online platforms for car parking will be provided in the Guide.

Now that the 'lowest representative fee' includes 'deterrent' fees, and a car parking operator can set whatever fee they like, employers are obligated to use this rate at a potentially huge detriment because there is no provision to test the reasonableness of this rate.

Embedded in such prices are monopoly rents or penalty rates which are not necessarily 'representative' of a free-market premium. This means FBT is being imposed at a rate that is not an appropriate proxy for economic value, but rather includes penalty and other pricing distortions.

Further, while the 'commercial parking station method' is the default method for determining the value of car parking benefits, an employer can elect to use one of the alternative methods. Therefore, employers are not required to use the lowest representative fee in instances where a qualified valuer has determined the market value to be lower.

The draft Ruling does not reduce already onerous FBT compliance costs and may increase such costs.

It is unfair to impose FBT on employers that provide private parking to employees, due to a lack of state government infrastructure (that is, public transport and associated car parks) or who made decisions to use certain locations based on the assumption that no FBT would be payable on car parking provided to their employees.

We must administer the law as it applies to contemporary commercial car parking arrangements and in accordance with legal developments. We will continue to consult with interested parties to further develop the Guide to assist employers apply the law in a practical way.

The ATO faces a significant communication challenge in ensuring that all previously unaffected businesses are made aware of their potential FBT obligations.

Employers operating in suburban and regional areas or in the vicinity of suburban landscapes, where shopping centres, universities and hospitals now provide paid parking, may now be captured by a law that was originally intended to address the provision of high-value parking in central business districts.

The original intent of the FBT car parking legislation allowed for FBT free onsite parking for employees whose offices were located in areas not adequately serviced by public transport or that did not have commercial parking stations nearby facilitating appropriately priced all-day parking.

Under changes proposed in the draft Ruling, the company will now be penalised for providing parking to these employees (and noting also the lack of all-day, on-street parking, public parking or reasonably-priced alternatives). Should a decision be made to pass all or some of the additional FBT cost on to employees, this would have an extremely detrimental impact on staff attraction and retention.

The draft Ruling focuses on the application of subsection 39A(1) of the FBTAA to establish when the provision of car parking will give rise to a car parking benefit for the purposes of the FBTAA. Much of the guidance and examples employers have relied on in TR 96/26, for example, regarding valuation methods and applicable record keeping, to determine their FBT liability in respect to car parking benefits, no longer exists in a binding public ruling and has been incorporated into draft Chapter 16 of the Guide.

The introduction to the Guide advises that we are committed to providing you with accurate, consistent and clear information to help you understand your rights and entitlements and your obligations.

If you follow our information and it turns out to be incorrect, or it is misleading and you make a mistake as a result, we will take that into account when determining what action, if any, we should take.

There are no examples in the draft Ruling.

A valuation report should include a list of the car parks on which the valuation is based (with information on locality, grading, price and weighting) plus any information and assumptions used for the valuation. This would include the availability of free public parking spaces within the vicinity of the work car park.

We will also be updating the Guide.

Whether a charging facility is a 'work car park' or 'commercial car parking station' needs to be objectively considered against their respective definitions.

The ATO should defer the commencement date until at least 1 April 2022.