Edited version of private ruling

Authorisation Number: 1011474603783

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Ruling

Subject: Living-Away-From-Home Allowance

Question 1

Did your assessable income for the 2009-10 income year include the amount of $X which was described as 'LAFHA back payment' in the document titled 'Breakdown of final payment'?

Answer: Yes.

Question 2

Did your assessable income for the 2009-10 income year include the amount of $Y which was described as 'LAFH' in the document titled 'Breakdown of final payment'?

Answer: Yes.

This ruling applies for the following period:

1 July 2009 - 30 June 2010.

The scheme commences on:

1 July 2009

Relevant facts and circumstances

You are a national of a foreign country and a permanent resident of a different foreign country.

You owned a house in your country of origin while working in Australia under a 457 visa.

You held a driving licence of your country of origin while working in Australia.

You were eligible to vote in your country of origin while working in Australia.

You came to Australia in under a 457 visa with an expiry date of 2010.

Prior to coming to Australia you were employed in a foreign country where you are a permanent resident.

You were seconded to work with a company in Australia.

After the period of secondment, you were to return to the foreign country where you are a permanent resident.

An Australian firm wrote to you to offer you employment. The offer of employment included a living-away-from-home allowance.

You accepted the offer.

While in Australia, you resided at a number of different addresses.

You had a discussion with a senior HR advisor of your firm that was summarised in an email sent to you.

You have provided a copy of several emails between yourself and your employer.

Later you asked for the reasons as to why you do not meet the ATO guidelines for LAFHA. You provided these details.

You wrote to the ATO.

You forwarded this response to your employer's Senior HR Advisor.

You commenced an action against your employer.

A draft Deed of Release was prepared as part of a settlement of the matter.

Your employment was terminated.

Subsequently you received a final payment.

You left Australia and are now residing in your country of origin.

Relevant legislative provisions

Fringe Benefits Tax Assessment Act 1986 section 30

Fringe Benefits Tax Assessment Act 1986 subsection 30(1)

Fringe Benefits Tax Assessment Act 1986 paragraph 30(1)(b)

Fringe Benefits Tax Assessment Act 1986 subsection 136(1)

Income Tax Assessment Act 1936 subsection 26(e)

Income Tax Assessment Act 1936 subsection 23L(1)

Income Tax Assessment act 1936 section 51A

Income Tax Assessment Act 1997 subsection 6-1(1)

Income Tax Assessment Act 1997 subsection 6-15(3)

Income Tax Assessment Act 1997 section 6-23

Taxation Administration Act 1953 schedule 1 section 12-35

Taxation Administration Act 1953 schedule 1 section 12-40

Taxation Administration Act 1953 schedule 1 section 12-45

Taxation Administration Act 1953 schedule 1 section 12-115

Taxation Administration Act 1953 schedule 1 section 12-120

Reasons for decision

Did your assessable income for the 2009-10 income year include the amounts described as 'LAFHA back payment' and 'LAFHA' in the document titled 'Breakdown of final payment'?

Summary

The payments will not form part of your assessable income if they are a living-away-from-home allowance.

A payment will be a living-away-from home-allowance if:

(a) the payment is an allowance;

(b) it is reasonable to conclude from all the surrounding circumstances that some or all of the allowance is in the nature of compensation to the employee for:

· additional non deductible expenses incurred by the employee during a period; or

· additional non deductible expenses and other additional disadvantages to which the employee is subject during a period; and

(c) the additional expenses and other disadvantages arise because the employee is required to live away from his or her usual place of residence in order to perform the duties of employment.

In considering these factors:

· the payments were an allowance; but

· the payments were not in the nature of compensation for additional expenses. Rather, they were paid as a result of the employer's decision to cease paying a living-away-from-home allowance.

Therefore, as the payments did not bear the character described in paragraph 30(1)(b) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA), they were not a living-away-from-home allowance.

Even if the payments did have the necessary character, it is not possible to conclude that you were living away from your usual place of residence.

Detailed reasoning

Subsection 6(1) of the Income Tax Assessment Act 1997 (ITAA 1997) provides that assessable income consists of ordinary and statutory income. However, this is qualified by subsections 6-15(3) which states:

If an amount is non-assessable non-exempt income, it is not assessable income

'Non-assessable non-exempt income' is defined in section 6-23 to be an amount which the ITAA or another Commonwealth law states is not assessable income and is not exempt income.

An example of income that is not assessable income, nor exempt income is provided by subsection 23L(1) of the Income Tax Assessment Act 1936 (ITAA 1936) which states:

Income derived by a taxpayer by way of the provision of a fringe benefit is not assessable income and is not exempt income of the taxpayer.

In general terms, a fringe benefit is defined in subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA) as a benefit provided to an employee in respect of the 'employment' of the employee. However, paragraph (f) of the 'fringe benefit' definition provides that a payment of 'salary or wages' will not be a fringe benefit.

'Salary or wages' is defined in subsection 136(1) of the FBTAA to mean a payment from which an amount must be withheld under either section 12-35, 12-40, 12-45, 12-115 or 12-120 of Schedule 1 to the Taxation Administration Act 1953 (TAA). The relevant section for the purpose of this ruling is section 12-35 which states:

An entity must withhold an amount from salary, wages, commission, bonuses or allowances it pays to an individual as an employee (whether of that or another entity).

In considering which Act applies to the payments, paragraph 1 of Taxation Ruling TR 92/15 Income tax and fringe benefits tax: The difference between an allowance and a reimbursement (TR 92/15) states:

Other than living-away-from-home allowances, most allowances will fall for consideration under the ITAA.

Therefore, if the payment is a living-away-from-home allowance it will not form part of your assessable income. However, if the payment is not a living-away-from-home allowance it will form part of your assessable income.

Were the payments a living-away-from-home allowance?

Section 30 of the FBTAA sets out the circumstances in which a payment to an employee will be a living-away-from-home allowance.

Subsection 30(1) of the FBTAA states:

Where:

(a) at a particular time, in respect of the employment of an employee of an employer, the employer pays an allowance to the employee; and

(b) it would be concluded that the whole or a part of the allowance is in the nature of compensation to the employee for:

(i) additional expenses (not being deductible expenses) incurred by the employee during a period; or

(ii) additional expenses (not being deductible expenses) incurred by the employee, and other additional disadvantages to which the employee is subject, during a period;

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 that employment;

the payment of the whole, or of the part, as the case may be, of the allowance constitutes a benefit provided by the employer to the employee at that time.

In summarising these requirements a payment will be a living-away-from-home allowance if:

(a) the payment is an allowance;

(b) it is reasonable to conclude from all the surrounding circumstances that some or all of the allowance is in the nature of compensation to the employee for:

(i) additional non deductible expenses incurred by the employee during a period; or

(ii) additional non deductible expenses and other additional disadvantages to which the employee is subject during a period; and

(c) the additional expenses and other disadvantages arise because the employee is required to live away from his or her usual place of residence in order to perform the duties of employment.

In considering these requirements:

(a) Were the payments an allowance?

Paragraph 2 of TR 92/15 in distinguishing between an allowance and a reimbursement states:

A payment is an allowance when a person is paid a definite predetermined amount to cover an estimated expense. It is paid regardless of whether the recipient incurs the expected expense. The recipient has the discretion whether or not to expend the allowance.

At paragraph 6, TR 92/15 states:

The word "allowance" is defined in the Macquarie dictionary as "a definite sum of money allotted or granted to meet expenses or requirements". An allowance will usually consist of the payment of a definite predetermined amount to cover an estimated expense, and will be paid regardless of whether the recipient incurs the expected expense.

Latham CJ in Mutual Acceptance Company Ltd v FC of T (1944) 7 ATD 506; (1944) 69 CLR 389 at ATD 510 said the word 'allowances' when used in connection with the relationship between employer and employee meant 'a grant of something additional to ordinary wages for the purpose of meeting some particular requirement connected with the service rendered by the employee or as compensation for unusual conditions of service'.

In applying these comments the payments involved the payment of an allowance as they were predetermined amounts that arose from the services provided to the employer, but were not part of the base salary.

(b) Do the surrounding circumstances indicate that some or all of the allowance is in the nature of compensation to the employee for additional non deductible expenses and disadvantages?

Guidance for considering this condition was provided by Lee J in Atwood Oceanics Australia Pty Ltd v Federal Commissioner of Taxation (1989) 20 ATR 742; (1989) 30 IR 58; 89 ATC 4808 (Atwood).

At ATC 4816 Lee J said:

It was the requirement of the paragraph that the circumstances of payment of the allowance be such that a reasonable person would conclude, applying an objective view thereto, that the allowance bore the character described in the paragraph. The required character of the allowance was that it be a payment to an employee in the nature of compensation for additional expenses incurred by the employee during a period of employment, or for additional expenses so incurred and other additional disadvantages to which the employee was subject during that period by reason of the fact that the employee was required to live away from his usual place of residence.

…

It was also a requirement of sec. 30 that the allowance in the nature of compensation, relate to additional expenses incurred by an employee during a period, or to additional expenses incurred and additional disadvantages to which the employee was subject during a period.

At ATC 4817 Lee J said:

Those provisions demonstrated that the legislation anticipated that the allowance would have calculable components such as those related to possible additional costs for food and accommodation. In other words, the allowance would have some clear connection with likely additional expenditure.

This decision was applied by the Administrative Appeals Tribunal in the decisions of Dunne v FC of T [1999] AATA 404; (1999) 42 ATR 1084; 99 ATC 2227 (Dunne) and Case [1999] AATA 740; (1999) 43 ATR 1043; 99 ATC 209 (Case 1999).

Dunne concerned the treatment of a lump sum workers compensation payment which had accrued in relation to a location allowance. The Tribunal concluded the payment was not a living-away-from-home allowance as:

· the employee was not living away from his usual place of residence during the relevant period; and

· no additional expenditure was incurred by the employee by reasons of him being required to live away from his usual place of residence in order to perform the duties of employment.

It also concluded the lump sum payment was not a 'fringe benefit' as defined in subsection 136(1) of the FBTAA as the payment assumed the character of the location allowance which came within the meaning of 'salary or wages'.

Case 1999 concerned amended assessments that had issued for the years ended 30 June 1989 and 1990. One of the grounds for appeal was that certain payments received by the employee were a living-away-from-home allowance. In considering the appeal, the Administrative Appeals Tribunal concluded the payments described as a living-away-from-home allowance were assessable under subsection 26(e) of the ITAA 1936 as there was no evidence that the employer had treated the payments as a living-away-from-home allowance, or that the employee had incurred any expenses.

In reviewing the circumstances in which the payments were made to you, the documentation provided including various emails, letters and a Deed of Release. These documents indicate the employer ceased paying the living-away-from-home allowance on 30 June 2009 as specified in your letter of appointment.

Rather, than being a payment of the rental allowance and compensation for additional food costs set out in the letter of appointment, the Deed of Release indicates the payments were a taxable allowance paid as compensation for the cessation of the living-away-from-home allowance.

Support for this conclusion is provided by:

· the letter from an Industrial Relations Advocacy representative which asked for the total remuneration to be preserved;

· the calculation of the final payment where the payments for the notice period, severance and annual leave all include a component based on the allowance being part of the base salary;

· the amount of the payments being different to the amounts shown in the letter of appointment; and

· the way in which the employer has treated the payments in its records.

It is also noted that in a telephone conversation with the ATO case officer who handled the previous private ruling, a representative of the employer confirmed that they ceased paying a living-away-from-home allowance.

Therefore, we can find no basis for concluding that the allowance was in the nature of compensation for additional non deductible expenses that you have incurred. Rather, the information provided indicates the allowance was to compensate for the reduction in remuneration as a result of the cessation of the living-away-from-home allowance.

In effect, the situation involves a cashing out of a fringe benefit. A payment received as a result of an employer electing to increase an employee's salary, or pay an allowance rather than provide a fringe benefit is 'salary or wages'. It does not retain the classification attached to the benefit.

For example, if an employer who is providing expense payment benefits by reimbursing an employee's expenditure elects to pay an allowance instead of the reimbursements, the allowance will not be a fringe benefit. Rather, it will generally form part of the employee's assessable income. The same outcome occurred in your situation where the employer decided to replace a living-away-from-home allowance with another type of allowance.

Therefore, as the payments were compensation for the cessation of payments of exempt income:

· they do not bear the character described in paragraph 30(1)(b) of the FBTAA;

· they were not a living-away-from-home allowance; and

· they formed part of your assessable income.

(c) Were you required to live away from your usual place of residence so as to be able to perform the duties of employment?

Although we have already concluded that the payments were not a living-away-from-home allowance we will consider this third condition as it was extensively discussed in the documentation that you provided.

Guidelines for determining an employee's usual place of residence are provided by Miscellaneous Taxation Ruling MT 2030 Fringe benefits tax: living-away-from-home allowance benefits.

Paragraphs 15 to 18 refer to various decision of Taxation Boards of Review relating to the former section 51A of the Income Tax Assessment Act 1936 (ITAA 1936). In referring to these decisions paragraph 14 of MT 2030 states:

As the decisions illustrate, the question whether an employee is living away from his or her usual place of residence normally involves a choice between two places of residence, i.e., the place where the employee is living at the time or some other place. A person is regarded as living away from a usual place of residence if, but for having to change residence in order to work temporarily for his employer at another locality, the employee would have continued to live at the former place. It would be relevant in reaching that view that there is an intention or expectation of the employee returning to live at the former place of residence on cessation of work at the temporary job locality. This would be relevant even if the employee is living in temporary quarters close to a temporary job site.

Further discussion occurs at paragraphs 19 to 25. Paragraphs 19 and 20 provide the following general rules:

19. An underlying theme of the cases is a general presumption that a person's usual place of residence will be close to the place where he or she is permanently employed. Correspondingly, an employee who changes his or her place of residence because of a change in the location of a permanent job, whether by reason of a transfer with the same employer or a change of employment, would not usually be living away from home on moving to a new place of residence close to the new job location. That would be the case notwithstanding that the new place of residence was a temporary one pending the obtaining of suitable long term accommodation.

20. Employees who move to a new locality to take up a position of limited duration with an intention to return to the old locality at the end of the appointment would generally be treated as living away from their usual place of residence. For example, a construction worker having to travel to a construction site to live and work would be in this category unless he had abandoned the former place of residence upon moving to the locality of the site. A case of the latter situation would be where the employee decided to permanently leave the former home, e.g., if a resident of Sydney, on obtaining a job for two years on a construction site in a remote part of Western Australia, decided to "sell up" in Sydney and move permanently to Western Australia to live.

As an example of the application of the general rule in paragraph 20, paragraph 22 states:

Examples of employees on appointments of finite duration who will generally be living away from their usual place of residence are foreign nationals employed in Australia on a temporary basis and Australian residents (e.g., export consultants, diplomats, immigration officials, etc.) stationed in a foreign country for a time. Provided the appointment is for a limited period and the employee can be expected in the normal course to return to the same city or district of the home country to live, the employee may be treated as living away from his or her usual place of residence.

By contrast, paragraph 21 states:

Some employees may be unable to establish that they are living away from their usual place of residence because the transitory nature of their lifestyle means that their usual place of residence is wherever they happen to sleep at night. Employees who follow the job, say, from construction site to construction site and have no permanent place of residence would fit into this particular category.

Further examples of employees who will generally not be treated as living away from home when they transfer from one location to another are given in paragraph 25 which states:

On the other hand, certain kinds of occupations have a career structure which brings with it the necessity to accept regular transfers from one location to another, e.g., police officers, school teachers, members of the defence force, bank employees, etc. Employees in these situations will generally not be treated as living away from home when they move on transfer to live in proximity to the current work place. That will be the case even if the employee owns a home elsewhere in which he or she eventually intends to reside.

In summarising the factors referred to in MT 2030 it is agreed that MT 2030 does not stipulate a maximum period for which an employee may be considered to be living away from their usual place of residence. However, it does set out a number of factors that need to be considered including:

· Does the employee have two residences?

· If there is more than one residence, did the employee change his or her residence?

· If there was a change in residence, did the change occur as a result of the employee having to work at another locality?

· If the change in residence occurred as a result of the employee having to work at another locality was there a change in the location at which the employee is permanently employed?

· If the change in work locality had not occurred would the employee have continued to live at the original residence?

· Is there an intention or expectation that the employee will return to live at the original place of residence on cessation of work at a temporary job locality?

These principles and the various cases that have considered usual place of abode or usual place of residence were discussed by the Administrative Appeals Tribunal in Compass Group (Vic) Pty Ltd (as trustee for White Roche & Associates Hybrid Trust) v FC of T [2008] AATA 845; 2008 ATC 10-051 (Compass Group). At paragraphs 55 and 56 Deputy President S A Forgie said:

55. There are several principles that can be gleaned from these cases. The first is that the fact that s 30 and, before it, s 51A, are concerned with what is described as a living-away-from-home allowance. That allowance is paid by an employer to an employee in respect of the employee's employment. It is a payment in the nature of compensation. The compensation is to meet additional expenses the employee incurs during a particular period and for other additional disadvantages he or she faces in that period but only if the expenses are incurred because he or she is required to live away from his or her usual place of residence in order to perform the duties of employment. As Mr Cotes alluded to in CaseB47, it necessarily assumes that the taxpayer has two places that could be described as his or her place of residence before one or the other needs to be identified as the "usual place of residence".

56. Putting to one side the case of Case 50, all cases looked to the taxpayer's place of residence before he or she acquired another place of residence. Each looked to the taxpayer's continuing connection with the first place of residence including matters such as whether his or her family continued to live there, the frequency of the taxpayer's visits there and whether or not that was a place to which the taxpayer could return at will if he or she so wished. Also relevant was the nature of the employment and whether the move to another place was a temporary or permanent move.

Since the release of MT 2030, the meaning of the term usual place of residence has also been considered by the Administrative Appeals Tribunal in a number of other cases including Case U110 87 ATC 663; Case X41 90 ATC 347; 21 ATR 3337; Case Y40 91 ATC 393; 22 ATR 3351 and Case Y51 91 ATC 453; 22 ATR 3412.

Case U110 concerned an employee who accepted his employer's request to move temporarily from Adelaide to Sydney for six to nine months to oversee one particular problem project. Although the employee owned a home in Adelaide and considered the move to be temporary as he intended to return to Adelaide, the Tribunal decided that the Adelaide house was not the usual place of abode.

In Case U110, Senior Member B. J. McMahon at 666 stated:

A place of abode is more than a place one merely owns. It is a place where one lives. Since 1576, the Shorter Oxford English Dictionary says, abode has meant habitual residence. In that sense, the word "usual" in the statutory phrase is probably unnecessary. After the applicant left the Adelaide house, it ceased to be either his usual or any other adjectival place of abode.

The tribunal distinguished the decisions of the Boards of Review in Case C55 71 ATC 242 and Case R99 84 ATC 650 on the basis that in those cases the taxpayers usually lived and slept in the places of abode at regular intervals. In Case C55 the employee's family continued to live in the main place of abode which the employee returned to every second weekend, while in Case R99 the employee returned to his parent's home where he had left most of his belongings each weekend.

In Case U110, at 667 Senior Member B. J. McMahon stated:

To my mind the supposed temporary nature of the move has no relevance in determining the issue. Ties with friends have nothing to do with ties to the former place of abode. He does not appear to have had any ties to this nature save those of a landlord and later of an empty property owner. These would not be sufficient to convert the premises to his usual place of abode even if, as I do not believe, they could be regarded as his unusual, or casual place of abode. His heart may well have been in Adelaide but at all material times his home was in Sydney.

In Case X41 the employee lived in several different locations from the end of 1977 until 1989. With the exception of the period from January 1985 to February 1986 each of these locations were outside the Perth metropolitan area. The employee's wife accompanied him to each location. They returned to Perth for their holidays to see their children and members of their family and when in Perth generally stayed with members of their family. In 1988 the employee bought a home unit in Perth, but did not live in it.

In considering whether Perth was the employee's usual place of residence Deputy President G.L. McDonald stated at 351:

There is a distinction to be drawn between a person's "point of origin" as identified in his letter of assignment and a place where a person has his "usual place of residence". Probably Perth may be the place to which the applicant habitually returns for his holidays and for purposes of seeing his children, relations and friends. That, however, does not necessarily make Perth his "usual place or residence". Nor does the fact that he regards Perth as his "usual place of residence" make it so. That also must be judged objectively in accordance with the well-known principles set out by Lord Campbell CJ in R v Hammond (1852) 17 QB 772 at 781 where His Lordship said:

"A man's residence where he lives with his family and sleeps at night, is his place of abode in the full sense of that expression."

He no doubt can be considered to be resident in Perth for the period January 1985 to February 1986. Outside the period January 1985 to February 1986 the applicant did not maintain any particular connection to Perth other than he left some furniture which was distributed to those of his children who live in Perth. The furniture has remained with them ever since. The fact that he remained in Perth from January 1985 to February 1986 does not qualify him to be considered as a resident of Perth for the entire period. Rather it seems to me on the facts of this case that the applicant's usual place of residence is equated to where he works at any particular time rather to any fixed location.

Cases Y40 and Y51 involved employees who were temporarily transferred by their employer from Perth to Karratha. Both employees rented out their Perth homes.

In deciding that the usual place of residence of the employee in Case Y40 was Karratha, Deputy President Dr P Gerber stated at ATC 396:

I accept T's evidence that when, in the relevant period, he took on an assignment from his employer to work in Karratha, he did not move to that town with any intention of residing there permanently. I furthermore accept that he regarded Perth as his permanent place of abode - to borrow a concept from the conflict of laws, I am satisfied that one would regard him throughout the relevant period as "domiciled" in Perth - T's involvement in the Woodside North-West Gas project was of a temporary nature and his permanent home, albeit leased for the duration, was in Perth, a town to which he and his family intended ultimately to return on the completion of the Karratha assignment. None of the above finding, however, can in any way derogate from the conclusion of law that when he agreed to work in Karratha, having let his home in Thornlie to take up residence there, he not only changed his place of work, but his place of residence.

This decision was applied in Case Y40 where Deputy President P.W. Johnston stated at ATC 456:

… even though the applicant, notwithstanding that he had left his home at [Perth], continued to regard it as his normal home (in the sense of the place to which he always returned after undertaking employment/assignments elsewhere), the simple fact of the matter is, viewed objectively, during the tax year in question he was actually residing at the assignment location in Karratha. That was where for everyday purposes he lived and where he maintained his home for the duration of the assignment period. That was where his wife and children resided and from where they conducted their day to day activities including attending school.

These cases illustrate that it is not just whether the employee maintains a residence in one area to which the employee intends to return after working in another area that determines if the employee is living away from their usual place of residence. Although you owned a house in your country of origin during the period you were in Australia, this fact by itself does not make your country of origin your usual place of residence.

It is also necessary to consider a range of factors including:

· The fixed or permanent employment base. The general presumption as stated in paragraph 19 of MT 2030 is that an employee's usual place of residence will be close to the employee's fixed or permanent employment base. For the period of your employment, this was an Australian city..

· If you had not commenced working for your Australian employer, would you have continued to live in your country of origin? The documentation provided indicates that at the time of working for your Australian employer, you were more likely to have been residing in another country where you hold permanent residency, than your country of origin.

· Was there an intention or expectation that you would return to live in your country of origin? The documentation provided does not indicate this intention. Rather, it indicates that you considered applying to become a permanent resident of Australia and then sought to take leave to return to another country in order to renew your permanent residency.

· How regularly you returned to your country of origin. You have not provided any information as to whether you returned to your country of origin during the period you were in Australia. However, it is noted that that following your departure from Australia you have returned to live in your country of origin.

· Whether you have immediate family, assets, or other social, business or contractual ties in your country of origin. During the period you were in Australia you retained the ownership of a house in your country of origin. It is not known whether you retained any other ties to your country of origin.

· The period of time that you lived away from your country of origin. You were in Australia for three and a half years. Prior to that you were working in anther country. You have not provided any information in relation to the period for which you resided in the other country. However, it is noted that your contract of employment was not a fixed term contract.

· Your employment history. We do not know what other employment you may have had prior to coming to Australia. The only information provided is that you were working in a foreign country and have worked for two employers in Australia.

In applying these factors it is not possible to conclude that your usual place of residence was in your country of origin as the information provided does not indicate an intention to return to your country of origin at the end of a limited time period.

Nor is it possible to conclude that the usual place of residence was another foreign country as although you initially came to Australia from that country and initially had an intention to return at the end of your secondment with your former employer you did not return to that foreign country at the end of your secondment. Nor did you return when you departed from Australia.

Therefore, it is not possible to apply paragraph 22 of MT 2030 to your situation. Rather, it would appear as if you have a transitory lifestyle to which paragraph 21 of MT 2030 applies. As set out above, paragraph 21 states:

Some employees may be unable to establish that they are living away from their usual place of residence because the transitory nature of their lifestyle means that their usual place of residence is wherever they happen to sleep at night. Employees who follow the job, say, from construction site to construction site and have no permanent place of residence would fit into this particular category.

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