Fringe Benefits Tax Assessment Act 1986

PART III - FRINGE BENEFITS

Division 12 - Residual fringe benefits

Subdivision B - Taxable value of residual fringe benefits

SECTION 52 REDUCTION OF TAXABLE VALUE - OTHERWISE DEDUCTIBLE RULE

52(1)

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Where:

(a)

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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)

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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)

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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

(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;

exceeds nil; and

(c)

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except where the fringe benefit is:

(i) an exclusive employee residual benefit; or

(ia) covered by a recurring fringe benefit declaration (see section 152A ); or

(ii) an extended travel residual benefit; or

(iii) a car residual benefit;

the recipient gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, in respect of the recipients benefit; and

(d)

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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)

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where:

(i) the fringe benefit is a car residual benefit in respect of a car held by the recipient during a period (in this section called the holding period ) in the year of tax; and

(ii) the substantiation rules set out in Division 15 have been complied with in relation to the car in relation to the holding period;

the following conditions are satisfied:

(iii) the recipient gives to the employer, before the declaration date, a car substantiation declaration for the car for the year of tax;

(iv) in a case where the substantiation rules require log book records or odometer records to be maintained by or on behalf of the recipient in relation to the car - the car substantiation declaration is accompanied by a copy of those documents; and

(e)

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if:

(i) paragraph (da) does not apply; and

(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;

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:

(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)

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where paragraph (da) applies and paragraph (k) does not apply - whichever of the following amounts is applicable:

(i) if it would be concluded that the amount of the recipients contribution would have been the same even if the residual fringe benefit were not applied or used in producing assessable income of the recipient - the business use percentage of the amount that, but for this subsection and Division 14 , would be the taxable value of the residual fringe benefit in relation to the year of tax;

(ii) if subparagraph (i) does not apply - the business use percentage of the amount that, but for this subsection and Division 14 and the recipients contribution, would be the taxable value of the residual fringe benefit in relation to the year of tax; or

(h)

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where:

(i) paragraph (e) applies; and

(ii) (Repealed by No 162 of 2015)

(iia) paragraph (k) does not apply;

whichever of the following amounts is the least:

(iii) the notional deduction;

(iv) if it would be concluded that the amount of the recipients contribution would have been the same even if the residual fringe benefit were not applied or used in producing assessable income of the recipient - 33 ⅓ % of the amount that, but for this subsection and Division 14 , would be the taxable value of the residual fringe benefit in relation to the year of tax;

(v) if subparagraph (iv) does not apply - 33 ⅓ % of the amount that, but for this subsection and Division 14 and the recipients contribution, would be the taxable value of the residual fringe benefit in relation to the year of tax; or

(j)

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(Repealed by No 162 of 2015)

(k)

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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) .

[ 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.]

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History

S 52(1) amended by No 84 of 2022, s 3 and Sch 3 items 14 - 17, by omitting " section 82A of the Income Tax Assessment Act 1936 , and " before " Divisions 28 and 900 of the Income Tax Assessment Act 1997 " from para (b), substituting " that Act or the Income Tax Assessment Act 1936 " for " either of those Acts " in para (b), omitting " section 82A of the Income Tax Assessment Act 1936, and " before " Divisions 28 and 900 of the Income Tax Assessment Act 1997 " from para (ba) subpara (ii) of the definition of " RD " and substituting " that Act or the Income Tax Assessment Act 1936 " for " either of those Acts " in para (ba) subpara (ii) of the definition of " RD " , effective 1 January 2023 and applicable to the FBT year starting on 1 April 2023 and to later FBT years.

S 52(1) amended by No 162 of 2015, s 3 and Sch 1 items 16 - 18, by substituting para (e), repealing para (h)(ii) and para (j), applicable in relation to the 2016-17 FBT year and later FBT years. Para (e), (h)(ii) and (j) formerly read:

(e) where paragraph (da) does not apply and the fringe benefit is a car residual benefit in respect of a car held by the recipient during a period (in this section also called the holding period ) in the year of tax - the recipient gives to the employer, before the declaration date:

(i) a declaration, in a form approved by the Commissioner, that purports to set out:

(A) the holding period; and

(B) the number of whole business kilometres travelled by the car during the holding period; and

(C) the number of whole kilometres travelled by the car during the holding period; or

(ii) where the average number of business kilometres per week travelled by the car during the holding period exceeded 96:

(A) a declaration referred to in subparagraph (i); or

(B) a declaration, in a form approved by the Commissioner, that purports to set out the holding period and includes a statement by the recipient that the average number of business kilometres per week travelled by the car during the holding period exceeded 96;

(h)(ii) a declaration referred to in subparagraph (e)(i) has been given to the employer; and

(j) where:

(i) subparagraph (e)(ii) applies; and

(ii) a declaration referred to in subparagraph (e)(i) has not been given to the employer; and

(iia) paragraph (k) does not apply;
whichever of the following amounts is applicable:

(iii) if it would be concluded that the amount of the recipients contribution would have been the same even if the residual fringe benefit were not applied or used in producing assessable income of the recipient - 33 ⅓ % of the amount that, but for this subsection and Division 14 , would be the taxable value of the residual fringe benefit in relation to the year of tax;

(iv) if subparagraph (iii) does not apply - 33 ⅓ % 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

S 52(1) amended by No 145 of 2008, s 3 and Sch 4 items 65 to 70, by inserting " and " at the end of paras (a), (b) and (ba), inserting " or " at the end of paras (c)(i) and (ia), inserting " and " at the end of paras (c), (d) and (e)(i)(A) and inserting " or " at the end of paras (f) and (g)(ii) of the definition of " ND " , effective 9 December 2008.

S 52(1) amended by No 145 of 2008, s 3 and Sch 4 items 33 to 39, by inserting " and paragraph (k) does not apply " after " applies " in paras (f) and (g) of the definition of " ND " , inserting " and " at the end of para (h)(ii) of the definition of " ND " , inserting para (h)(iia) in the definition of " ND " , inserting " and " at the end of para (j)(ii) of the definition of " ND " , inserting para (j)(iia) in the definition of " ND " and inserting para (k), applicable to a benefit that is provided after 7.30pm, by legal time in the Australian Capital Territory, on 13 May 2008 (the commencing time ). However, the amendments do not apply to a benefit that is provided to an employee after the commencing time and before 1 April 2009 if:

(a) the benefit is provided:

(i) because the employee agreed to receive the benefit in return for a reduction in the employee ' s salary or wages that would not have happened apart from the agreement; or

(ii) as part of the employee ' s remuneration package, in circumstances where it is reasonable to conclude that the employee ' s salary or wages would be greater if the benefit were not made part of that package; and

(b) the agreement was made, or the remuneration package was agreed to, before the commencing time.

S 52(1) amended by No 143 of 2007 , s 3 and Sch 1 items 15 and 16, by omitting " , other than a foreign income deduction, " after " the gross deduction ) " in para (b) and omitting " other than a foreign income deduction " after " once-only deduction " in para (ba)(ii), applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. For savings provisions, see note under s 19(1) .

S 52(1) amended by No 101 of 2006 , s 3 and Sch 2 items 93 to 95, by amending references to repealed inoperative provisions, effective 14 September 2006. For application and savings provisions see the CCH Australian Income Tax Legislation archive .

S 52(1) amended by No 178 of 1999, No 41 of 1998, No 39 of 1997, No 145 and No 30 of 1995, No 48 of 1991, No 153 of 1988 and No 139 of 1987.

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)

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History

S 52(3) repealed by No 162 of 2015, s 3 and Sch 1 item 19, applicable in relation to the 2016-17 FBT year and later FBT years. S 52(3) formerly read:

52(3)
Where:

(a) apart from this subsection, paragraph (1)(da) applies in relation to a fringe benefit in relation to an employer in respect of a car held by the recipient during a period in a year of tax; and

(b) whichever of the following amounts is the greater exceeds the amount that, apart from this subsection, would be ascertained under paragraph (1)(g) as representing the component ND in the formula in subsection (1):

(i) in all cases - the amount that would have been ascertained under paragraph (1)(h) as representing that component if:

(A) paragraph (1)(e) had applied in relation to the fringe benefit; and

(B) a declaration of the kind referred to in subparagraph (1)(e)(i) had been given to the employer;

(ii) in a case where the average number of business kilometres per week travelled by the car during the holding period exceeded 96 - the amount that would have been ascertained under paragraph (1)(j) as representing that component if:

(A) subparagraph (1)(e)(ii) had applied in relation to that fringe benefit; and

(B) a declaration of the kind referred to in subparagraph (1)(e)(i) had not been given to the employer; and

(C) a declaration of the kind referred to in sub-subparagraph (1)(e)(ii)(B) had been given to the employer;

this Act applies, and shall be deemed always to have applied, as if the amount represented by that component had been calculated as mentioned in whichever of subparagraphs (b)(i) or (ii) of this subsection is applicable.

S 52(3) amended by No 145 of 2008, s 3 and Sch 4 item 71, by inserting " and " at the end of para (b)(ii)(A), effective 9 December 2008.

S 52(3) inserted by No 139 of 1987.

52(4)
(Repealed by No 162 of 2015)

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52(5)

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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

where:

employee ' s percentage of interest
:

(a) is the percentage of the interest held by the employee, during a period (in this subsection called the holding period ) in the year of tax, in the asset or other thing:

(i) to which the residual fringe benefit relates; and

(ii) that is applied or used for the purpose of producing assessable income of the employee; and

(b) does not include the percentage of the interest held in that asset or other thing by the employee ' s associate or associates during the holding period.

unadjusted ND
is the amount that would be ascertained as representing the component ND in the formula in subsection (1) if paragraph (1)(k) did not apply in relation to the residual fringe benefit.

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