ATO Interpretative Decision
ATO ID 2005/195
Fringe Benefits Tax
Fringe benefits tax: issue of shares to a trust by a franchisor for the benefit of franchisee employeesFOI status: may be released
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This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Where a franchisor company (franchisor) issues shares to a trust for the benefit of franchisee employees, will the franchisor be a person who provides a benefit for the purposes of paragraph (ea) of the definition of 'fringe benefit' at subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA)?
Decision
Yes. The franchisor will be a person who provides a benefit for the purposes of 'paragraph (ea) of the definition of 'fringe benefit' at subsection 136(1) of the FBTAA'.
Facts
A franchisor carries on business involving a number of franchisees.
The franchisor and franchisee are not associates as defined in subsection 136(1) of the FBTAA.
Each franchisee employs its own staff.
Under the license agreement between the franchisor and franchisees the payroll function of the franchisees is performed by the franchisor.
The franchisor has established a trust for the benefit of franchisee employees who have signed workplace agreements and hold specified positions for specified periods with franchisees.
The franchisor issues shares to the trust, the number of shares issued being calculated by reference to the number of franchisee employees who have signed workplace agreements and have occupied specified positions for specified periods.
The settlor intends that the trustee, in exercising its powers to allocate shares to a beneficiary, have regard to (amongst other matters) the employment position and length of service of the beneficiary with a franchisee since becoming a beneficiary.
The trustee of the trust has an absolute discretion to allocate shares to employee beneficiaries.
The trust has been conceived and established by the franchisor without the consent of, or without consultation with the franchisees.
Information about franchisee employees, required by the franchisor to issue shares to the trust, is available to the franchisor because the franchisor performs the payroll function.
Information about franchisee employees, required by the trustee to allocate trust income and capital to beneficiaries is obtained from the franchisor who has access to this information because the franchisor performs the payroll function.
Reasons for Decision
As the franchisor and the franchisees are not associates (for the purposes of the FBTAA), the franchisor will be a person (the provider) for the purposes of paragraph (ea) of the definition of 'fringe benefit' at subsection 136(1) of the FBTAA if:
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- the franchisee employers participate in or facilitate the issue of shares to the trustee and know, or ought reasonably to know that they are doing so, or
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- the franchisee employers participate in, facilitate or promote a scheme or plan involving the issue of shares to the trustee and know, or ought reasonably to know that they are doing so.
The issue of shares by the franchisor to the trustee will be calculated by reference to the number of franchisee employees who have signed workplace agreements and have occupied specified positions for specified periods.
In relation to the ongoing operation of the trust, the trustee, in order to satisfy its fiduciary obligations to the beneficiaries, will need specific information in relation to each of the beneficiaries, for example, position held and length of service.
If the franchisees were to provide this information directly to the trustee they would be considered to be participating in or facilitating the issue of shares to the trustee and participating in or facilitating a scheme or plan involving the issue of shares to the trustee and would know, or ought reasonably to know that they were doing so.
Where the information is provided to the trustee by the franchisor, the franchisees will still be considered to be participating in or facilitating the issue of shares to the trustee and participating in or facilitating a scheme or plan involving the issue of shares to the trustee and would know, or ought reasonably to know that they were doing so because the information is only available to the franchisor as a result of the payroll function that it performs under license agreements between the franchisor and franchisees.
Thus for the purposes of paragraph (ea) of the definition of 'fringe benefit' at subsection 136(1) of the FBTAA the franchisor is considered to be a person who provides a benefit.
Date of decision: 1 July 2005Year of income: Year ended 30 June 2005
Legislative References:
Fringe Benefits Tax Assessment Act 1986
subsection 136(1)
Keywords
Discretionary trusts
Employee share schemes & options
Fringe benefits
Fringe benefits tax
ISSN: 1445-2782
| Date: | Version: | |
| You are here | 1 July 2005 | Original statement |
| 31 October 2014 | Updated statement |