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This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4.

Edited version of private ruling

Authorisation Number: 1011762665111

Subject : Whether vehicles fall within definition of a car

Question 1

Whether any of the following types of vehicles used by the employer fall within the definition of a 'car' under subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA)?

Answer: No

Question 2

Whether use of all of the vehicles listed in Question 1 for home to work travel by an employee member of a specialist technical group of the employer necessitated by that employee being on-call is an exempt benefit under subsection 47(6) of the FBTAA?

Answer: Yes

Question 3

Whether the use of a Toyota Hilux 4x4 petrol dual cab auto for home to work travel by an employee member of a specialist technical group of the employer necessitated by that employee being on-call is an exempt benefit under section 8 of the FBTAA?

Answer

No, but such use will be an exempt benefit under subsection 47(6) of the FBTAA

Question 4

If any of the types of vehicles listed below and used by the employer do not satisfy the definition of 'car', as defined in subsection 136(1) of the FBTAA, whether subsection 39A(1) of the FBTAA regarding car parking benefits is applicable to any such vehicles?

Answer: No

Issue 2:

Question 1

Whether the provision of designated car parking spaces, located at the employer's premises, in respect of any or all of the types of vehicles listed below are exempt residual benefits under paragraph 58G(1)(b) of the FBTAA?

Answer: Yes

This ruling applies for the following period

1 April 20011 to 31 March 2012

1 April 20012 to 31 March 2013

1 April 20013 to 31 March 2014

1 April 20014 to 31 March 2015

1 April 20015 to 31 March 2016

The scheme commenced on

1 April 2011

Relevant facts

The employer has a policy (car policy) that employees can use employer cars or vehicles only for the following journeys:

Associates of the employees cannot use employer cars or vehicles under the terms of the car policy.

Any other private use by employees adhering to the car policy will be minor, infrequent and irregular.

The employer uses the following vehicles:

The above vehicles are mainly used by specialist technical groups of the employer and can be used to carry technical equipment.

The above vehicles may sometimes be used by members of the specialist technical groups of the employer for travel between home and work for on-call purposes.

The employer also uses Iveco vans each with a designed payload of more than 1000 kg.

The Iveco vans are used by the specialist technical groups of the employer.

The Iveco vans can be used to carry technical equipment.

Further, the employer uses Toyota Hilux 4x4 v6 petrol dual cab autos.

The Toyota Hiluxes are also used by are used by the specialist technical groups of the employer.

The following vehicles are provided with designated car parking spaces located at the various premises of the employer

Each of the above employer premises are within 1 kilometre of a commercial car parking station charging more than $8 for all-day parking.

Relevant legislative provisions

Fringe benefits Tax Assessment Act 1986 section 8

Fringe benefits Tax Assessment Act 1986 subsection 8(2)

Fringe benefits Tax Assessment Act 1986 section 39A

Fringe benefits Tax Assessment Act 1986 subsection 39A(1)

Fringe benefits Tax Assessment Act 1986 section 45

Fringe benefits Tax Assessment Act 1986 subsection 47(6)

Fringe benefits Tax Assessment Act 1986 paragraph 58G(1)(b)

Fringe benefits Tax Assessment Act 1986 subsection 136(1)

Income Tax Assessment Act 1997 subsection 995-1(1)

Detailed Reasoning

Issue 1:

Question 1

1. The term 'car' is defined in subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA) as follows:

2. Subsection 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997), in turn, defines the term 'car' as follows:

3. Additionally, the term 'motor vehicle' is defined in subsection 995-1(1) of the ITAA 1997 as follows:

4. The relevant vehicles in this particular case are:

5. Per the guidance provided by Miscellaneous Taxation Ruling MT 2024, Fringe benefits tax: dual cab vehicles eligibility for exemption where private use is limited to certain work-related travel, it is accepted that each of the vehicles listed immediately above is not a 'car', as defined, for the purposes of the FBTAA.

Question 2

1. Subsection 47(6) of the FBTAA deals with exempt benefits in respect of the use of certain motor vehicles and states:

(a) residual benefit

(b) not excluded vehicle

7. As the each of the motor vehicles listed in Question 1 is neither a taxi let on hire nor, indeed, a 'car' (of any type or description), as defined for the purposes of the FBTAA, then this condition is also satisfied.

(c) no private use other than for listed purposes

8. The expression 'private use' is defined in subsection 136(1) of the FBTAA as follows:

9. The expression 'work-related travel' is also defined in subsection 136(1) of the FBTAA as follows:

10. MT 2034 also provides the following guidance:

11. MT 2024 also provides the following guidance:

12. The use by members of the specialist technical groups of the employer of the relevant vehicles is for home to work travel necessitated by being on-call and any other private use will, as already stated above in the 'relevant facts', be minor, infrequent and irregular.

13. Therefore, the use by members of the specialist technical groups of the employer of the relevant vehicles for home to work travel necessitated by being on-call is considered to be exempt under subsection 47(6) of the FBTAA as all the required conditions will be met.

Question 3

1. Section 8 of the FBTAA deals with the exemption of certain car benefits and states:

2. As stated previously, the term 'car' is defined in subsection 136(1) of the FBTAA as having the meaning given in subsection 995-1(1) of the ITAA 1997 which is as follows:

3. The type of motor vehicle for consideration in this particular instance is a Toyota Hilux 4x4 v6 petrol dual cab auto.

4. Additionally, MT 2024 provides the following guidance:

5. MT 2024 lists the following Toyota Hilux dual cab vehicles (manufactured in 2005) as being eligible for the work-related use exemption:

6. Provided the Toyota Hilux 4x4 v6 petrol dual cab auto(s) in this particular case are any of the types above (and this would include more current versions of the same types) then, in the absence of any evidence to the contrary in a particular case, it would be expected that any such vehicle had a designed load capacity of one tonne or more.

7. In view of the above, it is considered that the relevant Toyota Hilux 4x4 v6 petrol dual cab auto(s) would not de defined as a 'car' for the purposes of the FBTAA. However, as subsection 8(2) of the FBTAA can only apply to 'cars' then the exemption provided by that particular aforementioned subsection (and section 8 of the FBTAA) cannot apply in this case.

8. Nonetheless, for similar reasons to those used to determine Question 2 it is also considered that, alternatively, the use by members of the specialist technical groups of the employer of the Toyota Hilux 4x4 v6 petrol dual cab auto(s) for home to work travel necessitated by being on-call is considered to be exempt under subsection 47(6) of the FBTAA as all the required conditions will be met.

Question 4

1. It also has been determined above, in Question 3, that the following vehicle is not a 'car' for the purposes of the FBTAA:

2. Subsection 39A(1) of the FBTAA deals with the provision of benefits arising from car parking facilities and states:

3. 'Car benefit' is defined in subsection 136(1) of the FBTAA as meaning a benefit referred to in subsection 7(1) of the FBTAA in respect of a car either being applied to a private use by an employee or an associate or taken to be available for the private use by an employee or by an associate.

4. Taxation Determination TD 2011/14, Fringe benefits tax: for the purposes of section 39A of the Fringe Benefits Tax Assessment Act 1986 what is the car parking threshold for the fringe benefits tax year commencing on 1 April 2011, (for example) states:

5. However, despite the facts that that there may be in this case a commercial car parking station located within a 1 kilometre radius of the employer provided car park and also that the lowest fee charged by the operator of that car park is more than the car parking threshold these factors alone do not affect the prime underlying requirement of paragraph 39A(1)(a) of the FBTAA (and also, for example, that of subparagraph 39A(1)(c)(i) of the FBTAA in relation to car benefits) that the relevant vehicle being parked must, firstly, be a 'car' for the purposes of the FBTAA.

6. As explained in the following paragraphs of Taxation Ruling TR 96/26, Fringe benefits tax: car parking fringe benefits:

Therefore, paragraph 39A(1)(a) of the FBTAA (and, consequently, car parking benefits overall under section 39A of the FBTAA) cannot apply in this case as all of the relevant vehicles are not 'cars' for the purposes of the FBTAA.

Issue 2:

Question 1

1. Paragraph 58G(1)(b) of the FBTAA deals with exemption for certain motor vehicle parking facilities and states:

2. As already said above, in basic terms, a residual benefit under section 45 of the FBTAA is a benefit that does not fall within one of the other more specific benefit types contained in the FBTAA.

3. 'Recipients benefit' is defined in subsection 136(1) of the FBTAA as meaning, simply, 'the benefit to which the residual benefit relates'.

4. The relevant motor vehicles in this instance are as follows:

5. It has been determined above, in Question 4 of Issue 1, that all of the above listed motor vehicles when parked at, or in the vicinity of, the relevant employee's primary place of employment will not give rise to car parking benefits under section 39A of the FBTAA.

6. It is also considered that no other type of benefits will arise under any of the other provisions of Subdivision A of Divisions 2 to 11 inclusive of the FBTAA by virtue of any of the above motor vehicles being parked at designated parking spaces at any of the employer's premises.

7. Therefore, the benefits that may arise to employees of the employer by virtue of any of the above motor vehicles being parked at designated parking spaces at any of the premises of the employer will constitute residual benefits under section 45 of the FBTAA.

8. The ATO guide Fringe benefits tax: a guide for employers provides the following relevant guidance:

9. It is, therefore, concluded that as the benefits that may arise to employees of the employer by virtue of any of the above motor vehicles being parked at designated parking spaces at any of the premises of the employer will constitute residual benefits the requirements of paragraph 58G(1)(b) of the FBTAA are met and such parking will be exempt under that paragraph.

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