• 11.7 Employee maintains a home in Australia 

    An employee’s home in Australia (the place in Australia where they usually reside) can be a unit of accommodation as defined in the FBT legislation. This definition is broad and includes a house, flat, home unit, caravan or accommodation in living quarters.

    To maintain a home in Australia, all of the following must apply:

    • the employee or their spouse must have an ownership interest in a home
    • that home must be available for their immediate use and enjoyment at all times while they are living away from it, and
    • it is reasonable to expect that the employee will resume living at that home when they are no longer living away from home for the purposes of their employment.

    Ownership interest

    Ownership interest includes both a legal or equitable interest, and a licence or right to occupy a dwelling. An employee or their spouse can have an ownership interest in a home they own or rent.

    Attention

    An adult child living with their parents generally does not have an ownership interest in the home and, therefore, is not maintaining a home as required, because they are not usually responsible for the mortgage or rental payments. Any payment of board would not change this position because the payment of board is considered to be a domestic arrangement.

    End of attention

    Immediate use and enjoyment

    For the employee to maintain a home for their immediate use and enjoyment at all times, the entire home cannot be rented out or sublet while they are living away from it. The employee must incur the ongoing costs of maintaining the residence, such as mortgage or rental payments and rates. The employee must be able to return to the home at any time and take up immediate occupancy.

    Boarders, tenants or house-sitters

    If an employee has a boarder or tenant staying with them in their normal residence, the employee can still be considered to be maintaining the home for their own use and enjoyment. However, the boarder’s or tenant's stay must not impinge on the availability of the residence for the individual’s immediate use and enjoyment.

    Likewise, if an employee has a house-sitter in their home while they are living away from it, they will be maintaining the home when the house-sitter is either:

    • required to vacate the residence, or
    • their stay does not impinge on the employee’s use and enjoyment of it whenever the employee returns home – for example, during temporary visits.

    Similarly, if an employee decides to rent or sublet a part of their home while they are living away from it, such as a bedroom or granny flat, they will be maintaining a home for their own use and enjoyment if the employee continues to have occupancy rights and the rental or sublet does not restrict the employee's use and enjoyment of the property when the employee returns home.

      Last modified: 23 Aug 2013QC 17825