ATO Interpretative Decision

ATO ID 2002/232

Income Tax

• This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

Issue

Is an allowance paid to the taxpayer when they are required to attend a client's premises during specific hours, assessable under paragraph 26(e) of the Income Tax Assessment Act 1936 (ITAA 1936)?

Decision

Yes. The allowance paid to the taxpayer for attending a clients premises during specific hours is assessable under paragraph 26(e) of the ITAA 1936.

Facts

The taxpayer is a support worker who assists people with disabilities. As part of the taxpayer's duties they are occasionally required to be present at a client's premises during certain hours (or part thereof) to assist the client with any of their needs during the night.

The taxpayer is paid a set hourly rate for the number of hours worked, and in addition is paid a sleepover allowance for having been available to attend to the client's needs between specific hours. This allowance is paid to compensate the taxpayer for the inconvenience suffered as a result of being required to be away from their usual place of residence during those hours.

Reasons for Decision

Paragraph 26(e) of the ITAA 1936 provides that the assessable income of a taxpayer includes the value of allowances paid in respect of employment. However the amount will not be included in the assessable income of the taxpayer if it is a fringe benefit within the meaning of the Fringe Benefits Tax Assessment Act 1986 (FBTAA).

If the sleepover allowance paid is properly characterised as a living-away-from-home allowance, the sleepover allowance will be a fringe benefit within the meaning of subsection 30(1) of the FBTAA and the income will be exempt in the hands of the taxpayer under subsection 23L(1) of the ITAA 1936.

Subsection 30(1) of the FBTAA provides that where an employer pays an allowance to an employee and that allowance is in the nature of compensation for additional non-deductible expenses incurred by the employee or other additional disadvantages to which the employee is subject by reason that the employee is required to live away from his or her usual place of residence in order to perform the duties of employment, the allowance constitutes a benefit provided by the employer to employee.

Paragraph 38 of Taxation Ruling MT 2030 discusses the meaning of living-away-from-home allowance and states that:

'A living-away-from-home allowance is paid where the employee has moved and taken up temporary residence away from his or her usual place of residence so as to be able to carry out employment duties for a time at the new (but temporary) workplace.'

The sleepover allowance is paid as compensation for the inconvenience the taxpayer suffered as a result of occasionally spending the night at a client's residence. The allowance is not a living-away-from-home allowance because:

(a)

it is not paid to compensate the taxpayer for additional expenses, and;

(b)

the taxpayer is not required to move to a temporary residence - ie the taxpayer is not considered to be living away from their usual place of residence.

Consequently, the sleepover allowance is not a fringe benefit for the purposes of the FBTAA and therefore not exempt income under subsection 23L(1) of the ITAA 1936. The allowance is therefore assessable under paragraph 26(e) of the ITAA 1936.

Year of income:  Year ended 30 June 2001

Legislative References:
Income Tax Assessment Act 1936
   section 23L
   paragraph 26(e)

Related Public Rulings (including Determinations)
MT 2030

Keywords
Living away from home allowances

Siebel/TDMS Reference Number:  DW320159

Business Line:  Small Business/Individual Taxpayers

Date of publication:  8 March 2002

ISSN: 1445-2782