FBT minutes, May 2011

Summary of action items from 12 May 2011 meeting

Action item	FBT111110/49
Description	At the 11 November 2010 meeting the ICAA undertook to review whether subparagraph 137(1)(c)(ii) can be interpreted to bring a person within the application of the FBTAA in certain circumstances. The treatment of benefits received in situations where there is no obligation to withhold from payments made to an employee and therefore those benefits may be Australian assessable income in the hands of an employee, were discussed at the 12 May 2011 meeting. Given that Treasury will be developing a discussion paper for the purposes of resolving long outstanding problems with the income tax treatment of non cash benefits that have been highlighted by changes to foreign employment income, it was agreed that this action item will be discussed further, pending a written submission from the ICAA, at the 11 August 2011 meeting if required. ICAA will prepare a submission for consideration and forward this to Treasury, via the secretariat. Action item carried over. Refer agenda item 3.2 Update on issue raised as a consequence of Taxation Determination TD 2011/1.
Response	Carried over
Status	Ongoing

Action item	FBT111110/52
Description	At the 11 November 2010 meeting, the ATO undertook to advise members of the progress of the internal review. At the 17 February 2011 meeting the ATO advised that this matter is being managed as a priority technical issue (PTI) and a resolution time frame was yet to be confirmed. The ATO advised members of the progress of the internal review at the 12 May 2011 meeting. The chair will follow up the progress of the approval to prepare a taxation determination with relevant ATO stakeholders. Action item carried over. Refer agenda item 3.4 Interaction between the otherwise deductible rule and the non commercial loss rules.
Response	Carried over
Status	Ongoing

Action item	FBT110512/55
Description	Treasury sought feedback from members regarding the exposure draft Bill and explanatory material. Members were invited to send Treasury lists of examples of overseas remote locations for consideration. It was agreed that Treasury, via the secretariat, will provide details of the email address for members to send responses to. Members will send lists of examples of overseas remote locations to Treasury by 31 May 2011. Refer agenda item 6 Assistant Treasurer's announcement to provide certainty for the taxation of fly-in fly-out employees working overseas.
Response	Email sent from Treasury, via the secretariat, to members on 16 May 2011.
Status	Completed

Action item	FBT110512/56
Description	The FCAI raised with Treasury whether its anticipated discussion paper on the taxation of fly-in fly-out employees working overseas would also address FBT issues. Following Treasury's response that only income tax was currently being addressed by the discussion paper, members suggested that it would be helpful if this also covered FBT. CPA Australia to consider sending a short note to Treasury setting out member's concerns. Refer agenda item 7 23AG changes.
Response	To be advised at 11 August meeting.
Status	Ongoing

Action item	FBT110512/57
Description	Following discussion of the ATO's review of Taxation Ruling IT 2177, it was apparent that not all members were aware of this review. Some members expressed interest in having the opportunity to consider the matter and to possibly provide comment. It was agreed that the secretariat will provide details of the appropriate contact for members to forward comments on TR IT 2177. Refer agenda item 11 Taxation Ruling IT 2177.
Response	Email sent to members on 31 May 2011.
Status	Completed

Action item	FBT110512/58
Description	IPA raised the question, can an employee make a single 'living-away-from-home' (LAFH) declaration' that covers the current year and a number of future years? The ATO will ensure that the position stated at the meeting, being that an employer could not rely on a LAFH declaration that was provided by an employee where the declaration purports to set out facts about future years, will be included in the next update of the Fringe benefits tax: a guide for employers. Refer agenda item 13 Living-away-from-home declarations in advance.
Response	To be advised at 11 August meeting.
Status	Ongoing

Action item	FBT110512/59
Description	CPA Australia requested that the ATO confirm that the taxable value of the benefit is nil where discounted goods or services are provided to an employee by an unrelated third party provider, where the acquisition has been facilitated by the employer. The ATO referred to previous discussion of this issue at this forum, for example minutes of 18 November 2004, agenda item 6. The ATO indicated the position previously advised had not changed, noting that the outcome can depend on the facts. The ICAA indicated that comments in the Federal Court on the scope of the meaning of 'arrangement' subsequent to the 2004 view being expressed by the ATO may impact on the reasoning previously provided. It was agreed that the ICAA would provide written advice to the chair on the point raised at the meeting if, after reviewing same subsequent to the meeting, the point raised was relevant. Refer agenda item 17.1 Employee discounts from third parties.
Response	To be advised at 11 August meeting.
Status	Ongoing

Register of aged open action items from previous meetings

Action item	Issue	Status	Recommend
FBT260209/31	Electronic lodgment of FBT returns When will corporates be able to lodge FBT returns electronically? ATO to advise members when the range of forms that will be available on the new portal deployment has been decided.	The ATO is compiling a log of Tax Agent Portal improvements and/or suggestions, which have been received from ATO forum members and tax practitioners. This consultation process aims to identify and confirm potential enhancements and develop a priority list for future functionality. The timetable for portal improvements is subject to priority and costing of business specifications. The electronic lodgment of FBT returns is being considered in this consultation process.	Ongoing - the ATO will continue to monitor and provide updates when there is progress to report on the lodgment of FBT returns via the business portal.
FBT120810/43	No private use declaration for business travel greater than five nights ATO to review the references in the Fringe benefits tax: A guide for employers relating to section 20A and 47A and update same to provide clearer guidance in relation to the making of no-private-use declarations.	The ATO advised members at the meeting that the current review of the Fringe benefits tax: A guide for employers has already been completed; therefore this issue will be carried over for consideration in the next review.	Ongoing - this action item will be carried over to the next review.
FBT111110/53	FBT Return lodgment deferral and payment dates Following discussion of the issues at the 11 November 2010 meeting, it was agreed that the TTI would send further comments to the ATO which would be taken into account as part of a current internal review.	The TTI advised members that the ATO's Lodgment Working Group (LWG) are currently reviewing the issues raised and the ATO will report on the progress of this issue at the LWG meetings. The TTI undertook to report back to this forum on the outcome of the LWG deliberations. It was agreed that this action item will now be removed from the 'active' action items. The issue will be recorded in the forum's register of aged open action items and will be discussed when an update becomes available.	Ongoing - this action item will be carried over to when an outcome is reached.