1051439161600 | Legal database

Disclaimer
This edited version has been archived due to the length of time since original publication.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 your written advice

Authorisation Number: 1051439161600

Date of advice: 9 October 2018

Ruling

Subject: Fringe benefits tax

Question 1

Are breakfast, lunch, dinner and incidental allowances, paid to employees in Branch A, classified as ‘travel allowance’ and not ‘living-away-from-home allowance’ benefits, pursuant to section 30 of Fringe Benefits Tax Assessment Act 1986 (‘FBTAA 1986’)?

Answer

Yes

Question 2

Can the provision of accommodation to employees in the A Branch be reduced pursuant to section 52 of the FBTAA 1986?

Answer

Yes

Question 3

Is the daily parking rate of Car Park A less than the all-day parking threshold for the year ending 31 March 2019, pursuant to section 39C of the FBTAA 1986?

Answer

Yes

Question 4

Can the daily rate of $xy.xy (calculated as $xxx per month 19 days) be used as the lowest fee charged for all day parking (at Car Park B) by a commercial car parking station for the purpose of calculating the taxable value of car parking fringe benefits under section 39C of the FBTAA 1986?

Answer

Yes

Question 5

Is the car parking station at Car Park C a ‘commercial car parking station’ as defined in subsection 136(1) of the FBTAA 1986?

Answer

Yes

Question 6

If the answer to Question 5 is yes, can the amount of $xy.xy charged for all day rates by Car Park C be used as the lowest fee charged for all day parking by a commercial car parking station for the purpose of calculating the taxable value of car parking fringe benefits under section 39C of the FBTAA 1986?

Answer

Yes

Question 7

Can the daily rate of $xy.xy (calculated as $xxx per month 19 days) be used as the lowest fee charged for all day parking (at Car Park D) by a commercial car parking station for the purpose of calculating the taxable value of car parking fringe benefits under section 39C of the FBTAA 1986?

Answer

Yes

Question 8

Can the amount of $xy.xy which is charged for parking between 6:30pm and 6:00am in Car Park E be used in the ‘statutory formula method’ and the ‘average cost method’ FBT calculations pursuant to sections 39F and 39DA of FBTAA 1986?

Answer

Question 9

Can the daily rate of $xy.xy (calculated as $xxx per month 19 days) be used as the lowest fee charged for all day parking (at Car Park E) by a commercial car parking station for the purpose of calculating the taxable value of car parking fringe benefits under section 39C of the FBTAA 1986?

Answer

Yes

Question 10

Is the car parking station at Car Park F located within 1 km of the offices at the following addresses?

● x X Street XX

Answer

Yes

Question 11

Is the car parking station at Car Park G located within 1 km of the offices at the following addresses?

● x X Street XX

Answer

Yes

Question 12

Is the car parking station at Car Park H located within 1 km of the offices at the following addresses?

● x X Street XX

Answer

Yes

Question 13

Can the daily rate of $xy.xy (calculated as $xxxx per year 248 days) be used as the lowest fee charged for all day parking (at Car Park I) by a commercial car parking station for the purpose of calculating the taxable value of car parking fringe benefits under section 39C of the FBTAA 1986?

Answer

Yes

Question 14

Is the car parking station at Car Park J a ‘commercial car parking station’ as defined in subsection 136(1) of the FBTAA 1986?

Answer

Yes

Question 15

Does Car A satisfy the definition of a ‘car’ as defined in subsection 136(1) of the FBTAA 1986?

Answer

Yes

Question 16

Is Car A a type of vehicle which falls within subsection 8(2) of the FBTAA 1986 and meet the requirement for restricted private use and the car benefit provided is an ‘exempt benefit’?

Answer

Yes

Question 17

Does Car B satisfy the definition of a ‘car’ as defined in subsection 136(1) of the FBTAA 1986?

Answer

Yes

Question 18

Is Car B a type of vehicle which falls within subsection 8(2) of the FBTAA 1986 and meet the requirement for restricted private use and the car benefit provided is an ‘exempt benefit’?

Answer

Yes

Question 19

Does Car C satisfy the definition of a ‘car’ as defined in subsection 136(1) of the FBTAA 1986?

Answer

Yes

Question 20

Is Car C a type of vehicle which falls within subsection 8(2) of the FBTAA 1986 and meet the requirement for restricted private use, and the car benefit provided is an ‘exempt benefit’?

Answer

Yes

Question 21

Does Car D satisfy the definition of a ‘car’ as defined in subsection 136(1) of the FBTAA 1986?

Answer

Yes

Question 22

Is Car D a type of vehicle which falls within subsection 8(2) of the FBTAA 1986 and meet the requirement for restricted private use, and the car benefit provided is an ‘exempt benefit’?

Answer

Yes

This ruling applies for the following period

1 XX 20XX to 31 YY 20YY

RELEVANT FACTS AND CIRCUMSTANCES

Travel Allowance for Branch A

1. Company A has a department known as Branch A.

2. Company A decided to acquire its own items for use in their business dealings.

3. Company A has purchased specific items with specialist modifications.

4. These items may be bought from overseas. One of the world’s leading item manufacturers is based in Country A.

5. Each item costs approximately $xxx.

6. Prior to the delivery of the items in Australia, staff from Branch A are required to travel to Country A to conduct pre-delivery inspections and evaluations of the items.

7. Branch A staff are also sent to Country A to receive specialised training of the use of the items. These training courses range in duration from three days to two weeks. The specialised training is not available in Australia. At times, Branch A needs to send staff to attend two complete courses consecutively, and so the staff may stay in Country A for up to four weeks at a time.

8. For this scenario, Branch A staff will attend two training courses for a total of four weeks duration. During this period, Company A will pay the staff the travel rate which is equal to the rates in the Employment Conditions Abroad document. These travel rates are as follows:

i. Relevant Dollars $xx for breakfast

ii. Relevant Dollars $xx for lunch

iii. Relevant Dollars $xx for dinner

iv. Relevant Dollars $xx for incidental costs

v. Company A arranges one-bedroom motel accommodation for the staff travelling to Country A.

9. The policy of Company A states that the employees may travel overseas if the travel is in connection to their work duties. When such overseas travel is proposed, Company A has an obligation to ensure that the proposal is properly assessed, the reasons for travel are fully documented and the costs for travel are contained.

10. Approval for overseas travel requires the support of senior staff and management.

11. Under Company A policy, non-operational travel must be travel which can provide an operational benefit to Company A at some point in the future. Non-operational travel may include attendance at conferences and meetings, visits to overseas companies and inspections undertaken as part of tender evaluation proceedings.

12. Company A does not allow any private overseas travel.

Car parking fringe benefit – Car Park A

13. Company A has an office in XX.

14. Company A’s office at XX is approximately xx metres from Car Park A.

15. Car Park A complex provides car parking on its premises for the general public.

16. Parking is FREE for anyone who visits and parks for 2 hours or less.

17. The rates for parking at Car Park A are as follows:

0.0 - 2.0 hours	Free
2.0 - 4.0 hours	$x
4.0 – 5.0 hours	$x
5.0 – 6.0 hours	$x
6.0 – 7.0 hours	$x
Additional hours per hour	$x
Weekly	$xx
Monthly	$xx

18. Payment may be made by either cash or card.

Car parking fringe benefit – Car Park B

19. Company A has a station in XX, which is close to Car Park B.

20. Company A’s office at XX is approximately xx metres from Car Park B.

21. Car Park B is operated by XYZ and is open 24 hours, 7 days per week.

22. Parking fees apply as follows:


Casual parking	0.0 – 0.5 hours	Free
Casual parking	0.5 – 1.0 hours	$x
Casual parking	1.0 – 2.0 hours	$xx
Casual parking	2.0 – 3.0 hours	$xx
Casual parking	3.0 – 4.0 hours	$xx
Casual parking	4.0 + hours	$xx
Early Bird parking	Monday – Friday (basement)	$xx
Night Mon-Thurs	0.0 – 0.5 hours	Free
Night Mon-Thurs	0.5 + hours	$xx
Night Fri-Sun	Casual rates apply – see above
Weekend	0.0 – 0.5 hours	Free
Weekend	0.5 + hours	$xx
Monthly	Unreserved	$xxx

23. Company A has been using the average cost method and statutory formula method to calculate the car parking fringe benefit tax of this work location.

Car parking fringe benefit – Car Park C

24. Company A has an office located in XX.

25. Car Park C is located approximately xx metres from Company A’s office at XX.

26. Car Park C is operated by XYZ.

27. Car Park C is open from 5:30am – 12:30am 7 days per week.

28. The parking fees apply as follows:

Mon - Sun	0:0 – 33 mins	Free
Mon - Sun	33 mins – 1.0 hours	$x
Mon - Sun	1.0 – 1.5 hours	$xx
Mon - Sun	1.5 – 2.0 hours	$xx
Mon - Sun	2.0 – 3.0 hours	$xx
Mon - Sun	3.0 – 4.0 hours	$xx
Mon - Sun	4.0 – 5.0 hours	$xx
Mon - Sun	5.0 + hours	$xx
Mon – Fri Early Bird	Entry 6:00-9:30am, Exit 4:00-7:00pm	$x
Night rate	Entry > 6:00pm, Exit < 12:00am	$xx

29. Company A has been using the average cost method and statutory formula method to calculate the car parking fringe benefit tax of this work location.

Car parking fringe benefit – Car Park D

30. Company A has an office located in close proximity to Car Park D.

31. Car Park D is located approximately xx metres from Company’s A office at XX.

32. Car Park D offers onsite parking for xx vehicles.

33. Car Park D is open Mondays to Fridays from 7:00am – 7:00pm; and Saturdays from 7:00am – 4:30pm.

34. Car Park D charges monthly car parking fees for permanent parking.

35. Parking fees apply as follows:

Standard monthly	$xxx
Designated space monthly	$xxx
Unlimited access monthly	$xxx
Concession monthly	$xxx

36. Company A has been using the average cost method and statutory formula method to calculate the car parking fringe benefit tax of this work location.

Car parking fringe benefit –Car Park E

37. Company A has an office located at XX.

38. There is a parking station close to this office at x XX Avenue, XX which is Car Park E.

39. Company A’s office at XX is approximately xx metres from Car Park E.

40. Car Park E is open all day Monday to Sunday.

41. Car Park E has outsourced its car parking function to XYZ.

42. Parking fees at Car Park E apply as follows:

First 30 mins	$x
30 mins – 1 hour	$xx
1 – 3 hours	$xx
3+ hours	$xx
Lost tickets (maximum)	$xx
Overnight 6:30pm-6:00am	$xx
Monthly secure parking	$xxx

43. Company A has been using the average cost method and statutory formula method to calculate the car parking fringe benefit tax of this work location.

Car parking fringe benefit –Car Park F

44. Company A has 4 offices in XX near these locations:

● x XX Street, XX – approximately xx metres from Car Park F

● x YY Street, XX – approximately xx metres from Car Park F

● x ZZ Street, XX – approximately xx metres from Car Park F

● x TT Street, XX – approximately xx metres from Car Park F

45. In late 20XX, Council G closed down all of its open-spaced car parking stations in XX.

46. Car Park F is a multi-storey car park and is located at XX.

47. Car Park F is open on Mondays – Fridays (weekdays) between 6:00am and 6:00pm.

48. Parking fees apply as follows:

Early Bird flat rate	Enter 6-9:30am, Exit 3:30-6pm	$xx
Early Bird weekly	Book by the week	$xx

49. Company A has been using the average cost method and statutory formula method to calculate the car parking fringe benefit tax of these four work locations.

Car parking fringe benefit – Car Park G

50. Car Park G is located at x XX Street XX.

51. Company A has an office at x XX Street XX, approximately xx metres from the car park and another near y YY Street XX, approximately xx metres from the car park.

52. Car Park G is open every day, including public holidays, from 6:00am – 12:00am for daily parking.

53. Car Park G is open 24/7 for monthly parking.

54. Parking fees apply as follows:

Casual Mon - Fri	0.0 – 0.5 hours	$x
Casual Mon - Fri	0.5 – 1.0 hours	$xx
Casual Mon - Fri	1.0 – 1.5 hours	$xx
Casual Mon - Fri	1.5 – 2.0 hours	$xx
Casual Mon - Fri	2.0 – 3.0 hours	$xx
Casual Mon - Fri	3.0 – 4.0 hours	$xx
Casual Mon - Fri	4.0 + hours	$xx
Early Bird ‘Super Early’	Enter 6-8am, Exit 3-7:30pm	$xx
Early Bird ‘Early’	Enter 8-9:30am, Exit 3-7:30pm	$xx
Night parking Mon - Wed	Entry after 5pm, Exit before Close	$xx
Night parking Thurs - Fri	Entry after 5pm, Exit before Close	$xx
Book a Bay	Early Bird from	$xx
Book a Bay	Hourly from	$xx
Book a Bay	Night (Mon – Thurs) from	$xx
Book a Bay	Night (Fri) from	$xx
Book a Bay	Weekend from	$xx
Book a Bay	Overnight (1-3 nights 24 hrs) from	$xx

55. Company A has been using the average cost method and statutory formula method to calculate the car parking fringe benefit tax of these two work locations.

Car parking fringe benefit – Car Park H

56. Car Park H is located at x XX Street XX.

57. Company A has two offices at x XX Street XX, approximately xx metres from the car park and another at y YY Street XX, approximately xx metres from the car park.

58. Car Park H is managed by XYZ.

59. Car Park H is a multi-storey car park which offers onsite parking for xx vehicles.

60. Car Park H is open 24 hours, 7 days per week.

61. Parking fees apply as follows:

Mon – Fri 7:00 – 1:00am	0.0 – 1.0 hours	$xx
Mon – Fri 7:00 – 1:00am	1.0 – 2.0 hours	$xx
Mon – Fri 7:00 – 1:00am	2.0 – 3.0 hours	$xx
Mon – Fri 7:00 – 1:00am	3.0 – 4.0 hours	$xx
Mon – Fri 7:00 – 1:00am	4.0 – 5.0 hours	$xx
Mon – Fri 7:00 – 1:00am	5.0 + hours	$xx
All day parking Mon - Fri	Enter 7-9:30am, Exit 4-7pm from	$xx
Weekly all day parking	Enter 7-9:30am, Exit 4-7pm	$xxx
Lunch time parking	Enter after 11am, Exit before 2pm	$xx
Night time parking	Enter after 6pm, Exit before 7am	$xx
Weekend parking	Enter after 7am, Exit before 6pm	$xx

62. Company A has been using the average cost method and statutory formula method to calculate the car parking fringe benefit tax of these two work locations.

Car parking fringe benefit – Car Park I

63. Car Park I is located at XX

64. Company A has an office located approximately xx metres from Car Park I in XX.

65. Car Park I is a multi-storey car park which offers onsite parking for xx casual spaces, xx nested spaces and xx permanent spaces.

66. Car Park I is open 24 hours, 7 days per week.

67. Parking fees apply as follows:

Mon – Sun all day	0.0 – 1.0 hours	$x
Mon – Sun all day	1.0 – 2.0 hours	$x
Mon – Sun all day	2.0 – 3.0 hours	$x
Mon – Sun all day	3.0 – 4.0 hours	$x
Mon – Sun all day	4.0 – 5.0 hours	$xx
Mon – Sun all day	24 hours	$xx
Mon – Sun all day	Monthly parking Ground floor	$xxx
Weekly parking	Levels 1 - 3	$xx
Weekly parking	Levels 4 - 6	$xx
Monthly parking	Levels 4 - 6	$xxx
Yearly parking	Levels 4 - 6	$xxxx

68. Company A has been using the average cost method and statutory formula method to calculate the car parking fringe benefit tax of these two work locations.

Car parking fringe benefit – Car Park J

69. Company A has an office in XX.

70. Company A’s office in XX is approximately xx metres from Car Park J.

71. Car Park J has redeveloped their car parking system in 20XX, and has introduced ticketless parking.

72. The state-of-the-art technology of the new parking system uses licence plate recognition to track parking without the need for a paper ticket.

73. The car park is open 24 hours per day and is managed by staff 24 hours per day.

74. Car Park J is a multi-storey car park which offers onsite parking for xx vehicles.

75. Parking is free for customers who park for 3 hours or less, or enter the car park after 6pm.

76. Customers receive an additional hour FREE (4 hours total), when presenting their docket barcode to scan at the pay stations before exiting the car park.

77. Customers with a valid disability parking permit received FREE parking.

78. The rates for parking at Car Park J are as follows:

Up to 3.0 hours	Free
Up to 3.5 hours	$x
Up to 4.0 hours	$x
Up to 4.5 hours	$xx
Up to 5.0 hours	$xx
Up to 5.5 hours	$xx
Up to 6.0 hours	$xx
Up to 6.5 hours	$xx
Up to 7.0 hours	$xx
Up to 24 hours	$xx
Maximum daily rate	$xx
Overnight, in after 6pm	Free

79. Company A has been using the average cost method and statutory formula method to calculate the car parking fringe benefit tax of this work location.

Exempt car benefit – Car A

80. Company A provide Car A to their employees for the following travel:

● Travel between home and office for on-call purposes

● Travel between office and work places to perform employment duties

81. The carrying capacity of Car A is xx kilograms, which is less than 1 tonne.

82. The seating capacity of Car A is x seats only.

Exempt car benefit – Car B

83. Company A have ordered Car B for their staff to complete the following travel:

● Travel between home and office for on-call purposes

● Travel between office and work places to perform employment duties

84. The payload capacity of Car B is xx kilograms.

85. The seating capacity of Car B is x seats.

Exempt car benefit – Car C

86. Company A have ordered Car C for their staff to complete the following travel:

● Travel between home and office for on-call purposes

● Travel between office and work places to perform employment duties

87. The payload capacity of Car C is xx kilograms.

88. The seating capacity of Car C is x seats.

Exempt car benefit – Car D

89. Company A have ordered Car D for their staff to complete the following travel:

● Travel between home and office for on-call purposes

● Travel between office and work places to perform employment duties

90. The payload capacity of Car D is xx kilograms.

91. The seating capacity of Car D is x seats.

Information provided

92. You have provided a number of documents containing detailed information in relation to a number of car parking stations in the vicinity of XX, a variety of cars and a number of paid allowances, including:

a. Private Binding Ruling (PBR) Application, dated x XX 20XX

b. A total of 22 PBR questions

c. Background information describing the car parking schemes at

i. Car Park A

ii. Car Park B

iii. Car Park C

iv. Car Park D

v. Car Park E

vi. Car Park F

vii. Car Park G

viii. Car Park H

ix. Car Park I

x. Car Park J

d. Background information describing a number of vehicles:

i. Car A

ii. Car B

iii. Car C

iv. Car D

e. Background information describing travel allowance for Branch A

a. References in support of the PBR Application

b. Calculations to show equivalent daily car parking rates

c. Copies of previous Edited Versions of previous PBR’s

93. We have referred to the relevant information within these documents in applying the relevant tests to your circumstances.

Relevant legislative provisions

Fringe Benefits Tax Assessment Act 1986 Subsection 8(2)

Fringe Benefits Tax Assessment Act 1986 Section 30

Fringe Benefits Tax Assessment Act 1986 Section 39

Fringe Benefits Tax Assessment Act 1986 Subsection 47(6)

Fringe Benefits Tax Assessment Act 1986 Section 52

Fringe Benefits Tax Assessment Act 1986 Subsection 136(1)

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

Taxation Laws Amendment (Car Parking) Bill 1992 Explanatory Memorandum

REASONS FOR DECISION

All legislative references are to the Fringe Benefits Tax Assessment Act 1986 (FBTAA 1986) unless otherwise stated.

QUESTION 1

SUMMARY

The breakfast, lunch, dinner and incidental allowances paid to employees who travel to Country A are travel allowances and not living-away-from-home allowance (LAFHA) benefits pursuant to section 30 of the FBTAA 1986.

DETAILED REASONING

94. For the purpose of this ruling, a determination is to be made whether the breakfast, lunch, dinner and incidental allowances paid to employees who travel to Country A are ‘travel allowance’ and not LAFHA benefits as per section 30 of the FBTAA 1986.

95. TR 2017/D6 Draft Taxation Ruling Income tax and fringe benefit tax: when are deductions allowed for employees’ travel expenses? (TR 2017/D6) sets out general principles for determining whether an employee can deduct travel allowance expenses under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997).

96. Section 8-1 of the ITAA 1997 provides the following regarding general deductions:

(1) You can deduct from your assessable income any loss or outgoing to the extent that:

(a) it is incurred in gaining or producing your assessable income; or

(b) it is necessarily incurred in carrying on a business for the purpose of gaining or producing your assessable income.

97. Section 900.30 of the ITAA 1997 defines travel allowance expenses to include:

(2) Travel allowance expenses count as work expenses. A travel allowance expense is a loss or outgoing incurred for travel that is covered by a travel allowance. The loss or outgoing must:

(a) be for accommodation or for food or drink; or

(b) be incidental to the travel.

(3) A travel allowance is an allowance the employer pays or is to pay the employee to cover losses or outgoings:

(a) that are incurred for travel away from the ordinary residence that the employee undertakes in the course of their duties as an employee; and

(b) that are losses or outgoings for accommodation or for food or drink, or are incidental to the travel.

The travel may be within or outside Australia.

98. TR 2017/D6 provides guidance on travel expenses in relation to transport, accommodation, meal and incidental expenses.

99. TR 2017/D6 describes a travel expense as an expense relating to:

● transport (that is, travel by airline, train, car, bus or other vehicle), and

● accommodation, meal and incidental expenses of an employee when they travel away from home for work.

100. Subsection 30(1) of the FBTAA 1986 outlines the following with regard to the provision of LAFHA allowance benefits:

[Provision of benefit] 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 duties of that employment require the employee to live away from his or her normal residence;

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.

101. The ATO view in chapter 11 of the ‘Fringe benefits tax: a guide for employers’ provides further assistance and outlines the differences between a ‘living away from home allowance’ and a ‘travel allowance’.

102. Section 11.12 of the ‘Fringe benefits tax: a guide for employers’ sets out some of the indicators of whether an allowance is a travel allowance or a LAFHA as described in the following table:

Living-away-from-home allowances	Travel allowances
This is paid where an employee has taken up temporary residence away from their usual place of residence in order to carry out duties at a new, but temporary, workplace.	This is paid because an employee is travelling in the course of performing their job.
There is a change of job location in relation to paying the allowance.	There is no change of job location in relation to paying the allowance.
Where an employee is living away from home, it is more common for that employee to be accompanied by their spouse and family.	Where an employee is travelling, they are generally not accompanied by their spouse and family.
They are paid for longer periods.	They are paid for short periods.

QUESTION 2

SUMMARY

The provision of accommodation to employees who travel to Country A can be reduced as per section 52 of the FBTAA 1986.

DETAILED REASONING

103. For the purpose of this ruling, a determination is to be made whether the provision of accommodation to employees who travel to Country A can be reduced as per section 52 of the FBTAA 1986.

104. The provision of accommodation to employees who travel to Country A has the potential to be one of the following:

(i) A travel allowance - if the employer provides an allowance to cover the cost of the accommodation and merely makes a booking for the employee, and the employee is personally liable to pay, then it may be a travel allowance taxed as income under the income tax system.

(ii) An expense payment fringe benefit – if the employer books the accommodation in the employee’s name and the employee pays for the accommodation and is then reimbursed by the employer, it would be an expense payment fringe benefit pursuant to section 20 of the FBTAA 1986 which states:

Where a person (in this section referred to as the provider):

(a) makes a payment in discharge, in whole or in part, of an obligation of another person (in this section referred to as the recipient) to pay an amount to a third person in respect of expenditure incurred by the recipient; or

(b) reimburses another person (in this section also referred to as the recipient), in whole or in part, in respect of an amount of expenditure incurred by the recipient;

the making of the payment referred to in paragraph (a), or the reimbursement referred to in paragraph (b), shall be taken to constitute the provision of a benefit by the provider to the recipient.

(iii) A residual fringe benefit - if the employer books the accommodation in their own name and is liable to pay for the accommodation and then provides it to the employee, then it would be a residual fringe benefit pursuant to section 45 of the FBTAA 1986 which states:

A benefit is a residual benefit for the purposes of this Act if the benefit is not a benefit by virtue of a provision of Subdivision A of Division 2 to 11 (inclusive).

105. In circumstances where either an expense payment fringe benefit or a residual fringe benefit arises, the taxable value of the fringe benefit may be reduced where the ‘otherwise deductible rule’ applies.

106. Paragraph 112 of the Taxation Ruling TR 2001/2 Fringe Benefits Tax: the operation of the new fringe benefits tax gross-up formula to apply from 1 April 2000 (TR 2001/2) states:

The taxable value of certain fringe benefits may be reduced to the extent that the employee would have been able to claim an income tax deduction had the employee themselves incurred the expense. The otherwise deductible rule applies to reduce the taxable value of either an airline transport fringe benefit, a board fringe benefit, an expense payment fringe benefit, a loan fringe benefit, a property fringe benefit or a residual fringe benefit. The taxable value is reduced by the hypothetical income tax deduction to which the employee would have been entitled had the employee incurred the expense …

107. Section 24 of the FBTAA 1986 provides for a reduction of taxable value under the ‘otherwise deductible rule’ for an expense payment fringe benefit as follows:

Where:

(a) the recipient of an expense payment fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer; and

(b) if the recipient had, at the time when the recipients expenditure was incurred, incurred and paid unreimbursed expenditure (in this subsection called the gross expenditure), in respect of the same matter in respect of which the recipients expenditure was incurred, equal to:

(i) in the case of an in-house expense payment fringe benefit—the amount that, but for this subsection and Division 14 and the recipients contribution, would be the taxable value of the expense payment fringe benefit in relation to the year of tax; or

(ii) in the case of an external expense payment fringe benefit—the amount of the recipients expenditure;

a once-only deduction (in this subsection called the gross deduction) would, or would if not for section 82A of the Income Tax Assessment Act 1936, and Divisions 28 and 900 of the Income Tax Assessment Act 1997, have been allowable to the recipient under either of those Acts in respect of the gross expenditure…

108. Section 52 of the FBTAA 1986 provides for a reduction of taxable value under the ‘otherwise deductible rule’ for a residual fringe benefit as follows:

Where:

(a) the recipient of a residual fringe benefit in relation to an employer in relation to a year of tax is an employee of the employer; and

(b) if the recipient had, at the comparison time, incurred and paid unreimbursed expenditure (in this subsection called the gross expenditure), in respect of the provision of the recipients benefit, equal to the amount that, but for this subsection and Division 14 and the recipients contribution, would be the taxable value of the residual fringe benefit in relation to the year of tax—a once-only deduction (in this subsection called the gross deduction) would, or would if not for section 82A of the Income Tax Assessment Act 1936, and Divisions 28 and 900 of the Income Tax Assessment Act 1997, have been allowable to the recipient under either of those Acts in respect of the gross expenditure…

109. For the purposes of the ‘otherwise deductible rule’ it needs to be considered whether the employee (not the employer) is able to claim an income tax deduction. In TD 93/20 Fringe benefits tax: can the 'otherwise deductible' rule apply to reduce fringe benefits tax if an overseas trip, made by an employee, is not allowable to the employer as a deduction for income tax purposes because the trip is of a capital nature from the perspective of the employer?, the Commissioner confirms that the ‘otherwise deductible rule’ allows a reduction in taxable value of a benefit if the employee who received the benefit would have been entitled to a ‘once-only deduction’ for the expenditure if that expenditure had not been paid or reimbursed by the employer but paid by the employee.

110. Guidelines for determining whether the employee would have been able to claim an income tax deduction for the costs incurred in travel, are provided by Taxation Ruling TR 98/9 Income tax: deductibility of self-education expenses incurred by an employee or a person in business as follows:

#12. Self-education expenses are deductible under section 8-1 where they have a relevant connection to the taxpayer's current income-earning activities.

#13. If a taxpayer's income-earning activities are based on the exercise of a skill or some specific knowledge and the subject of self-education enables the taxpayer to maintain or improve that skill or knowledge, the self-education expenses are allowable as a deduction.

111. Where overseas travel is included, then there is a need for a travel diary. Miscellaneous Taxation Ruling MT 2038 Fringe Benefits Tax: travel diaries outlines the following:

This Ruling addresses the operation and application of the FBT travel diary requirements. An employee must keep and give his employer a travel diary in situations where the employer pays or reimburses the employee's expenses of travel outside Australia, in order that the employer can claim a reduction in the taxable value of the benefit. Similarly, a travel diary must be kept for travel by an employee inside Australia where the trip involves the employee being away for more than 5 consecutive nights and the purpose of the travel is not exclusively in the course of the employee's employment.

QUESTION 3

SUMMARY

The daily parking rate of Car Park A ($xy.xy, calculated as $xx per month 19 days) is less than the all-day parking threshold ($8.83) for the year ending 31 March 2019, pursuant to section 39C of the FBTAA 1986.

DETAILED REASONING

112. For the purpose of this ruling, a determination is to be made whether the daily parking rate of a particular car park is less than the all-day parking threshold for the year ending 31 March 2019 pursuant to section 39C of the FBTAA 1986.

Car parking benefits

113. It is agreed that a car parking benefit as defined in subsection 39A(1) of the FBTAA 1986, will arise from the provision of car parking facilities, if the relevant parking facility is a commercial parking station, located within a one kilometre radius of the business premises, which provides car parking spaces in the ordinary course of business to members of the public for all-day parking on payment of a fee.

114. Section 39A of the FBTAA 1986 states that a car parking fringe benefit will arise where:

39A(1) If the following conditions are satisfied…

(a) ...a car is parked on one or more premises of a person (the provider), where:

(i) the premises, or each of the premises, on which the car is parked are business premises, or associated premises, of the provider; and

(ii) a commercial parking station is located within a 1km radius of the premises, or each of the premises, on which the car is parked; and

(iii) the lowest fee charged by the operator of any such commercial parking station in the ordinary course of business to members of the public for all-day parking on the first business day of the FBT year is more than the car parking threshold;...

All day parking

115. Subsection 136(1) FBTAA 1986 defines ‘all day parking’ to mean:

in relation to a particular day, … parking of a single car for a continuous period of 6 hours or more during a daylight period on that day.

116. Subsection 136(1) FBTAA 1986 defines ‘daylight period’ to mean:

In relation to a day, … so much of a period on that day as occurs:

(a) after 7:00 a.m. on that day; and

(b) before 7:00 p.m. on that day.

117. The Explanatory Memorandum to the Taxation Laws amendment (Car Parking ) Bill 1992 (Explanatory Memorandum) provides the following example of a parking arrangement that will not constitute a commercial parking station as it does not provide ‘all day parking’:

Some car parking facilities have a primary purpose to provide short-term shopper parking. To discourage all-day parking, the operators of these facilities charge penalty rates for all-day parking. These rates are significantly greater than the rates that would be charged by a similar facility which encouraged all-day parking. For the purposes of these provisions, short-term shopper parking facilities using penalty rates for all-day parking will not be treated as a “commercial parking station”.

118. This example is also included in paragraph 81 of Taxation Ruling TR 96/26 Fringe benefits tax: car parking fringe benefits (TR 96/26).

Car parking threshold

119. For the year ending 31 March 2019, Tax Determination TD 2018/7 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 2018? (TD 2018/7) provides that the car parking threshold is $8.83.

QUESTIONS 4, 6, 7, 9 and 13

SUMMARY

The following daily rates can be used as the lowest fee charged for all day parking by a commercial car parking station for the purpose of calculating the taxable value of car parking fringe benefits pursuant to section 39C of the FBTAA 1986:

● $xy.xy ($xxx per month 19 days) for Car Park B

● $xy.xy for Car Park C

● $xy.xy ($xxx per month 19 days) for Car Park D

● $xy.xy ($xxx per month 19 days) for Car park E

● $xy.xy ($xxxx per year 248 days) for Car Park I

DETAILED REASONING

120. For the purpose of this ruling, a determination is to be made whether particular daily rates can be used as the lowest fee charged for all day parking by five commercial car parking stations in the XX area for the purpose of calculating the taxable value of car parking fringe benefits pursuant to section 39C of the FBTAA 1986.

121. Firstly, a determination is to be made regarding whether those five car parking stations are ‘commercial parking stations’.

CAR PARKING BENEFITS

122. It is agreed that a car parking benefit as defined in subsection 39A(1) of the FBTAA 1986, will arise from the provision of car parking facilities, if the relevant parking facility is a commercial parking station, located within a one kilometre radius of the business premises, which provides car parking spaces in the ordinary course of business to members of the public for all-day parking on payment of a fee.

123. Section 39A of the FBTAA 1986 states that a car parking fringe benefit will arise where:

39A(1) If the following conditions are satisfied…

(a) ...a car is parked on one or more premises of a person (the provider), where:

(i) the premises, or each of the premises, on which the car is parked are business premises, or associated premises, of the provider; and

(ii) a commercial parking station is located within a 1km radius of the premises, or each of the premises, on which the car is parked; and

Commercial parking station

124. A ‘commercial parking station’ is defined in subsection 136(1) FBTAA 1986 to mean:

in relation to a particular day,… a permanent commercial car parking facility where any or all of the car parking spaces are available in the ordinary course of business to members of the public for all-day parking on that day on payment of a fee, but does not include a parking facility on a public street, road, lane, thoroughfare or footpath paid for by inserting money in a meter or by obtaining a voucher.

125. In considering the application of the definition of ‘commercial parking station’, it is necessary to determine whether the parking facility:

a. is a permanent parking facility

b. is a commercial parking facility

c. provides car parking spaces in the ordinary course of business

d. to members of the public

e. for all-day parking on payment of a fee, and

f. is not a parking facility on a public street, road, lane, thoroughfare or footpath paid by inserting money in a meter or obtaining a voucher.

126. Guidance for considering each of these issues is provided in TR 96/26.

‘Permanent’ parking facility

127. The Explanatory Memorandum stated the word ‘permanent’ has its normal dictionary meaning. It also provided several examples including a car park set up for a short period to cater for a special function (like an Easter Show) which it stated would not be permanent.

128. Further examples are provided in paragraph 81 of TR 96/26 which states that the following examples are regarded as not constituting commercial parking stations:

● car parking that is established for a short period to cater for a special function;

● parking facilities provided by a sporting venue to persons associated with the venue where;

(a) parking facilities are usually available only after 5 pm to coincide with night events; or

(b) parking is available only for a specific event, and the event is a daytime event; or

provided that, when there is no such event, the parking facilities are not usually available to members of the public.

129. The Macquarie online Dictionary defines ‘permanent’ to mean:

● lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding

‘Commercial’ parking facility

130. The term ‘commercial’ is not defined in the FBTAA 1986. The Explanatory Memorandum stated the word ‘commercial’ has its normal dictionary meaning.

131. As an example of a parking facility that would not be regarded as a commercial facility, it stated that a car parking facility that is not run with a view to making a profit (usually reflected in significantly lower car parking rates charged compared with normal market for that facility) would not be commercial.

132. This example was also provided in paragraph 81 of TR 96/26 which provided the following examples of a parking facility that would not be regarded as being commercial:

car parking facilities, with a primary purpose other than providing all-day parking, that usually charge penalty rates significantly higher than the rates chargeable for all day parking at commercial all-day parking facilities (such as parking provided for short term shoppers or hotel guests);

a car park that is not run with a view to making a profit or which charges a nominal fee (usually a significantly lower rate than the current value), e.g., an all-day parking fee of less than $2.00 is likely to be a nominal fee.

133. The Macquarie online Dictionary defines ‘commercial’ as follows:

● adjective

● of, or of the nature of, commerce.

● engaged in commerce.

● capable of returning a profit: a commercial project.

● capable of being sold in great numbers: invention is commercial

Ordinary course of business

134. In considering whether these spaces are provided in the ordinary course of business, the definition of business operations in subsection 136(1) FBTAA 1986 provides that business operations in relation to a government body or a non-profit company includes any operations or activities carried out by that body or company.

Members of the public

135. The circumstances in which a parking facility will be considered to provide car spaces to members of the public was considered by the Full Federal Court in Federal Commissioner of Taxation v Qantas Airways Ltd [2014] FCAFC 168; 2014 ATC 20-477 (Qantas).

136. In its submission to the Court, Qantas Airways submitted that the Explanatory Memorandum to Taxation Laws Amendment (Car Parking) Bill 1992 said nothing about the meaning of the word ‘public’. The submission was that this absence of a meaning for ‘public’ supported its contention that it should be construed in other than perhaps its ordinary meaning.

137. In Qantas, the Court held that the word ‘public’ should be given its ordinary meaning. Further, paragraph 12 stated:

12 … and that there was no rationale for imputing into the definition a further requirement that a commercial parking station be one that employees of the employer commuting to work by car would or could in fact use…

138. The Macquarie online Dictionary defines ‘public’ to mean:

…done, made, acting, etc., for the people or community as a whole; open to all the people; maintained at the public expense, under public control, and open to the public generally; of or provided by the state rather than an independent, commercial company…

139. Paragraph 81 of TR 96/26 provides the following examples of parking arrangements that are not considered to be made available to members of the public:

● car parking spaces leased to a tenant by a property developer as part of an overall lease arrangement for business premises;

● parking provided by a business for its own employees and those of a nearby business, but to no other person;

● in an area without a commercial parking station and where street parking is not permitted, arrangements made by a business for its employees to park during business hours in yards and driveways of surrounding houses.

All day parking

140. Subsection 136(1) FBTAA 1986 defines ‘all day parking’ to mean:

In relation to a particular day, … parking of a single car for a continuous period of 6 hours or more during a daylight period on that day.

141. Subsection 136(1) FBTAA 1986 defines ‘daylight period’ to mean:

In relation to a day, … so much of a period on that day as occurs:

(a) after 7:00 a.m. on that day; and

(b) before 7:00 p.m. on that day.

142. The Explanatory Memorandum provides the following example of a parking arrangement that will not constitute a commercial parking station as it does not provide ‘all day parking’:

143. This example is also included in paragraph 81 of TR 96/26.

Parking facilities on a public street, road, lane, thoroughfare or footpath

144. A ‘commercial parking station’ is defined in subsection 136(1) FBTAA 1986 and does not include any parking facility on a ‘public’ street, road, lane, thoroughfare or footpath.

145. The Macquarie online Dictionary defines ‘public’ to mean:

One kilometre radius of premises

146. For the purposes of Division 10A FBTAA 1986, a commercial parking station is taken to be located within a one kilometre radius of a particular business premises or particular associated premises if, and only if, a car entrance to the commercial parking station is situated less than one kilometre, by the shortest direct practicable route, by foot or car, from a car entrance to those premises.

TAXABLE VALUE OF CAR PARKING FRINGE BENEFITS – “COMMERCIAL PARKING STATION” METHOD

147. Secondly, a determination is to be made regarding whether the daily rates of those five car parking stations may be used as the lowest fee charged for all day parking for the purpose of calculating the taxable value of car parking fringe benefits pursuant to section 39C of the FBTAA 1986.

148. Section 39C FBTAA 1986 states that the taxable value, in relation to an FBT year, of a car parking fringe benefit provided on a day in the FBT year in connection with one or more premises is equal to:

(a) If, on that day, there is only one commercial parking station located within a 1 km radius of any of those premises – the lowest fee charged by the operator of the parking station in the ordinary course of business to members of the public for all-day parking on that day; or

(b) If, on that day, there are 2 or more commercial parking stations located within a 1 km radius of any of those premises – the lowest fee charged by any of the operators of those parking stations in the ordinary course of business to members of the public for all-day parking on that day

reduced by the amount of the recipient’s contribution.

Fees charged by commercial parking stations

149. Subsection 39E(1) FBTAA 1986 gives the daily rate equivalent for periodic parking arrangements as:

if the operator of a commercial parking station provides all day parking in the ordinary course of business to members of the public on a weekly, monthly, yearly or other periodic basis, the operator is taken to charge a fee for all day parking on a particular day during the period equal to the amount worked out using the formula:

Total fee ÷ Business days in period

where:

total fee is the total fee charged by the operator in respect of all day parking on days in that period;

business days in period means the number of business days in that period.

150. The Explanatory Memorandum to Taxation Laws Amendment (Car Parking) Bill 1992 also provides this formula for converting longer term car parking rates into daily rate equivalents.

151. The Explanatory Memorandum to Taxation Laws Amendment (FBT Cost of Compliance) Bill 1995 also provides this formula for converting longer term car parking rates into daily rate equivalents.

152. Paragraph 40 of TR 96/26 also provides this formula for converting longer term car parking rates into daily rate equivalents.

153. ATO Interpretative Decision ATO ID 2006/93 Fringe Benefits Tax: car parking fringe benefits: fee charged by a parking station for all-day parking – daily rate equivalent for periodic parking arrangements states that subsection 39E FBTAA 1986 provides a daily rate equivalent where there is a periodic parking arrangement.

Car parking threshold

154. For the year ending 31 March 2019, TD 2018/7 provides that the car parking threshold is $8.83.

QUESTIONS 5 & 14

SUMMARY

The following car parking stations are ‘commercial car parking stations’ pursuant to subsection 136(1) of the FBTAA 1986:

● Car Park C

● Car Park J

DETAILED REASONING

155. For the purpose of this ruling, a determination is to be made regarding whether two particular car parking stations in the XX area are ‘commercial parking stations’.

COMMERCIAL PARKING STATION

156. A ‘commercial parking station’ is defined in subsection 136(1) FBTAA 1986 to mean:

in relation to a particular day, a permanent commercial car parking facility where any or all of the car parking spaces are available in the ordinary course of business to members of the public for all-day parking on that day on payment of a fee, but does not include a parking facility on a public street, road, lane, thoroughfare or footpath paid for by inserting money in a meter or by obtaining a voucher.

157. In considering the application of the definition of ‘commercial parking station’, it is necessary to determine whether the parking facility:

a. is a permanent parking facility

b. is a commercial parking facility

c. provides car parking spaces in the ordinary course of business

d. to members of the public

e. for all-day parking on payment of a fee, and

f. is not a parking facility on a public street, road, lane, thoroughfare or footpath paid by inserting money in a meter or obtaining a voucher.

158. Guidance for considering each of these issues is provided in TR 96/26.

‘Permanent’ parking facility

159. The Explanatory Memorandum stated the word ‘permanent’ has its normal dictionary meaning. It also provided several examples including a car park set up for a short period to cater for a special function (like an Easter Show) which it stated would not be permanent.

160. Further examples are provided in paragraph 81 of TR 96/26 which states that the following examples are regarded as not constituting commercial parking stations:

● car parking that is established for a short period to cater for a special function;

● parking facilities provided by a sporting venue to persons associated with the venue where;

(a) parking facilities are usually available only after 5 pm to coincide with night events; or

(b) parking is available only for a specific event, and the event is a daytime event; or

provided that, when there is no such event, the parking facilities are not usually available to members of the public.

161. The Macquarie online Dictionary defines ‘permanent’ to mean:

● lasting or intended to last indefinitely; remaining unchanged; not temporary; enduring; abiding

‘Commercial’ parking facility

162. The term ‘commercial’ is not defined in the FBTAA 1986. The Explanatory Memorandum stated the word ‘commercial’ has its normal dictionary meaning.

163. As an example of a parking facility that would not be regarded as a commercial facility, it stated that a car parking facility that is not run with a view to making a profit (usually reflected in significantly lower car parking rates charged compared with normal market for that facility) would not be commercial.

164. This example was also provided in paragraph 81 of TR 96/26 which provided the following examples of a parking facility that would not be regarded as being commercial:

165. The Macquarie online Dictionary defines ‘commercial’ as follows:

● adjective

● of, or of the nature of, commerce.

● engaged in commerce.

● capable of returning a profit: a commercial project.

● capable of being sold in great numbers: invention is commercial

Ordinary course of business

166. In considering whether these spaces are provided in the ordinary course of business, the definition of business operations in subsection 136(1) FBTAA 1986 provides that business operations in relation to a government body or a non-profit company includes any operations or activities carried out by that body or company.

Members of the public

167. The circumstances in which a parking facility will be considered to provide car spaces to members of the public was considered by the Full Federal Court in Qantas.

168. In its submission to the Court, Qantas Airways submitted that the Explanatory Memorandum to Taxation Laws Amendment (Car Parking) Bill 1992 said nothing about the meaning of the word ‘public’. The submission was that this absence of a meaning for ‘public’ supported its contention that it should be construed in other than perhaps its ordinary meaning.

169. In Qantas, the Court held that the word ‘public’ should be given its ordinary meaning. Further, paragraph 12 stated:

170. The Macquarie online Dictionary defines ‘public’ to mean:

171. Paragraph 81 of TR 96/26 provides the following examples of parking arrangements that are not considered to be made available to members of the public:

● car parking spaces leased to a tenant by a property developer as part of an overall lease arrangement for business premises;

● parking provided by a business for its own employees and those of a nearby business, but to no other person;

All day parking

172. Subsection 136(1) FBTAA 1986 defines ‘all day parking’ to mean:

In relation to a particular day, … parking of a single car for a continuous period of 6 hours or more during a daylight period on that day.

173. Subsection 136(1) FBTAA 1986 defines ‘daylight period’ to mean:

In relation to a day, … so much of a period on that day as occurs:

(a) after 7:00 a.m. on that day; and

(b) before 7:00 p.m. on that day.

174. The Explanatory Memorandum provides the following example of a parking arrangement that will not constitute a commercial parking station as it does not provide ‘all day parking’:

175. This example is also included in paragraph 81 of TR 96/26.

Parking facilities on a public street, road, lane, thoroughfare or footpath

176. A ‘commercial parking station’ is defined in subsection 136(1) FBTAA 1986 and does not include any parking facility on a ‘public’ street, road, lane, thoroughfare or footpath.

177. The Macquarie online Dictionary defines ‘public’ to mean:

One kilometre radius of premises

178. For the purposes of Division 10A FBTAA 1986, a commercial parking station is taken to be located within a one kilometre radius of a particular business premises or particular associated premises if, and only if, a car entrance to the commercial parking station is situated less than one kilometre, by the shortest direct practicable route, by foot or car, from a car entrance to those premises.

QUESTION 8

SUMMARY

The amount of $xy.xy, which is charged by Car Park E for overnight parking between 6:30pm – 6:00am, cannot be used in the ‘average cost method’ and the ‘statutory formula method’ FBT calculations pursuant to sections 39DA and 39F of the FBTAA 1986.

DETAILED REASONING

179. For the purpose of this ruling, a determination is to be made whether the amount of $xy.xy, which is charged by Car Park E for overnight parking between 6:30pm – 6:00am, can be used in the ‘average cost method’ and the ‘statutory formula method’ FBT calculations pursuant to sections 39DA and 39F of the FBTAA 1986.

Taxable value of car parking fringe benefits – ‘average cost method’

180. Section 39DA of the FBTAA 1986 covers the taxable value of car parking fringe benefits by using the ‘average cost method’.

181. Subsection 39DA(2) of the FBTAA 1986 further describes that subject to this Part, if an election covers a car parking fringe benefit, the taxable value of the fringe benefit is the average cost worked out under subsection 39DA(3), reduced by the recipient’s contribution.

182. Subsection 39DA(3) of the FBTAA 1986 provides a method of working out the ‘average cost’. where:

A + B ÷ 2

A is the lowest fee charged in the ordinary course of business to members of the public for all-day parking by any operator of a commercial parking station located within a 1 km radius of any of the relevant parking premises on the day on which a car parking benefit is first provided in that FBT year in relation to the employer in connection with any of those premises.

B is the lowest fee charged in the ordinary course of business to members of the public for all-day parking by any operator of a commercial parking station located within a 1 km radius of any of the relevant parking premises on the day on which a car parking benefit is last provided in that FBT year in relation to the employer in connection with any of those premises.

183. Following the formula described above, both ‘A’ and ‘B’ are described in terms of ‘all-day parking’.

184. Subsection 136(1) FBTAA 1986 defines ‘all day parking’ to mean:

In relation to a particular day, … parking of a single car for a continuous period of 6 hours or more during a daylight period on that day.

185. Subsection 136(1) FBTAA 1986 defines ‘daylight period’ to mean:

In relation to a day, … so much of a period on that day as occurs:

(a) after 7:00 a.m. on that day; and

(b) before 7:00 p.m. on that day.

Taxable value of car parking fringe benefits – ‘statutory formula method’ - spaces

186. The key principle of section 39F of the FBTAA 1986 is that, under this Subdivision C, an employer may elect to calculate the value of certain car parking fringe benefits by using a statutory formula based on the number and value of spaces available to employees covered by the election.

187. Subsection 39FA(3) of the FBTAA 1986 provides that despite any other provision of this Act (other than section 39FB) the total taxable value of the employer's car parking fringe benefits for employees covered by the election for the FBT year is the amount worked out using the spaces method under subsection 39FA(4) of the FBTAA 1986.

188. Subsection 39FA(4) of the FBTAA 1986 provides a method of working out the ‘statutory formula method’ spaces method. The process for calculating the ‘spaces method’ is:

Step 1 - Work out an amount using the following formula, for each space for which there is, in the FBT year, at least one car parking benefit for an employee covered by the election:

Step 2 - Work out the total of all the amounts calculated under Step 1 (the total statutory benefit).

Step 3 - Subtract from the total statutory benefit the sum of all relevant recipients contributions.

189. The ‘daily rate amount’ referred to in the above formula is defined in section 39FC of the FBTAA 1986 as:

The daily rate amount for a space is the amount that would be worked out using whichever of the following methods that the taxpayer chooses:

(a) The commercial parking station method (section 39C);

(b) The market value method (section 39D);

as the taxable value of the car parking fringe benefit for the space, if there were no recipients’ contribution.

190. The above mentioned methods for calculations are all expressed in terms of ‘all-day parking’ which has been defined in paragraphs 172 and 173 above.

191. As outlined in ATO Interpretative Decision ATO ID 2014/12 Fringe Benefits Tax Car Parking Fringe Benefits: all-day parking, subsection 39A(1) of the FBTAA 1986 sets out the criteria that must be met for a car parking benefit to arise.

192. Subparagraph 39A(1)(a)(ii) of the FBTAA 1986 requires a commercial parking station to be located within a 1 km radius of the premises on which the car is parked. Subparagraph 39A(1)(a)(iii) of the FBTAA 1986 contains the following requirement:

193. 'All-day parking' is defined in subsection 136(1) of the FBTAA 1986 to mean, in relation to a particular day:

... parking of a single car for a continuous period of 6 hours or more during a daylight period on that day…

194. 'Daylight period' is defined in subsection 136(1) of the FBTAA 1986 to mean, in relation to a day:

so much of a period on that day as occurs:

(a) After 7 a.m. on that day; and

(b) Before 7 p.m. on that day.

195. The application of these definitions was considered by the Administrative Appeals Tribunal in Case 27/95 95 ATC 275; AAT Case 10, 128 (1995) 30 ATR 1297. The Tribunal considered a submission that the lowest fee charged for all-day parking would be 10 cents where that was the charge for a car parked for a period of at least six hours from just before 6.00 p.m. Senior Member Fayle said at ATC 278:

Para 16.... All-day parking, as mentioned, is a continuous period of at least 6 hours during a daylight period on that day. 'Daylight period' is defined above as being a twelve hour period from 7.00 a.m. to 7.00 p.m., a definition, it is observed, which conforms with the lexical definition of 'day'.

Para 17. It is impossible for the applicant to satisfy this condition if the parking commences just before 6.00 p.m., only one hour before 7.00 p.m. Even if the fee of 10 cents was a charge to park from 6.00 p.m. for a continuous period of at least 6 hours, that would not be for 'all-day parking' as defined in the Act.

QUESTIONS 10, 11 & 12

DETAILED REASONING

196. For the purpose of this ruling, a determination is to be made whether three particular car parks are located within 1 kilometre of eight particular offices located in the XX area.

197. The distances between the particular offices and the corresponding car parks are calculated with the assistance of Google Maps, which gives the walking distance in metres and provides an accompanying map showing the route.

QUESTIONS 15, 17, 19 & 21

DETAILED REASONING

198. For the purpose of this ruling, a determination is to be made whether a number of particular vehicles satisfy the definition of a ‘car’ as defined in subsection 136(1) of the FBTAA 1986.

199. Subsection 136(1) of the FBTAA 1986 provides that a ‘car’ has the meaning given by subsection 995-1(1) of the ITAA 1997.

200. Subsection 995-1(1) of the ITAA 1997 defines a ‘car’ as a motor vehicle (except a motor cycle or similar vehicle) designed to carry a load of less than 1 tonne and fewer than 9 passengers.

Design load capacity

201. The amount of load a vehicle can carry is known as the ‘design load capacity’ and it is used to determine whether a motor vehicle is a car and whether it is the kind that falls within the exempt car benefits for FBTAA purposes. To calculate a vehicle’s design load capacity, the vehicle’s ‘gross vehicle weight’ and its basic ‘curb weight’ must be known.

202. MT 2024 provides that the ‘gross vehicle weight’ (‘GVW’) is the maximum the vehicle can weigh when fully loaded as specified by the manufacturer with all of its fluids, oils, coolants, a full tank of fuel and passengers. A vehicle's GVW is calculated by its manufacturer, and can be found in the owner's manual or on the vehicle's doorframe.

203. The basic ‘curb weight’ is how much the vehicle weighs on its own, without any cargo or passengers. This measurement includes a full tank of fuel and all of the fluids, oils and coolants that keep the car running.

204. A vehicle’s ‘design load capacity’ is calculated using the following formula:

Gross vehicle weight – Curb weight = Design load capacity

Passenger carrying capacity

205. The passenger carrying capacity is determined by the seating capacity of the vehicle.

QUESTIONS 16, 18, 20 & 22

DETAILED REASONING

206. For the purpose of this ruling, a determination is to be made whether the following vehicles are a type which fall within subsection 8(2) of the FBTAA 1986, meet the requirements for restricted private use and so satisfy being classified as an ‘exempt car benefit’.

● Car A

● Car B

● Car C

● Car D

207. Subsection 136(1) of the FBTAA 1986 provides that a ‘car’ has the meaning given by subsection 995-1(1) of the ITAA 1997.

208. Subsection 995-1(1) of the ITAA 1997 defines a ‘car’ as a motor vehicle (except a motor cycle or similar vehicle) designed to carry a load of less than 1 tonne and fewer than 9 passengers.

209. Motor vehicles that may qualify for the work related use exemption under subsection 47(6) of the FBTAA 1986 are those that are not classified as a car (as defined in subsection 136(1)) for the purposes of Division 2 of Part III of the FBTAA 1986, that is, vehicles other than those which are designed to carry a load of less than one tonne and fewer than 9 passengers.

210. Pursuant to sub-section 8(2) of the FBTAA 1986, a vehicle may qualify for the exemption if, while classified as a car for the purposes of Division 2 of Part III of the FBTAA 1986, it is a taxi, panel van, utility truck or any other road vehicle that, while designed to carry a load of less than one tonne, is not designed for the principal purpose of carrying passengers.

211. Subsection 8(2) of the FBTAA 1986 provides the following:

(2) A car benefit provided in a year of tax in respect of the employment of a current employee is an exempt benefit in relation to the year of tax if:

(a) the car is:

(i) a taxi, panel van or utility truck, designed to carry a load of less than 1 tonne; or

(ii) any other road vehicle designed to carry a load of less than 1 tonne (other than a vehicle designed for the principal purpose of carrying passengers); and

(b) there was no private use of the car during the year of tax and at a time when the benefit was provided other than:

(i) work-related travel of the employee; and

(ii) other private use by the employee or an associate of the employee, being other use that was minor, infrequent and irregular.

212. ‘Work-related travel’ is defined in sub-section 136(1) of the FBTAA 1986 to be travel between the employee's residence and place of employment or other place at which employment duties are performed and any travel that is incidental to travel in the course of performing duties of employment.

213. Miscellaneous Taxation Ruling MT 2027 Fringe Benefits Tax: private use of cars: home to work travel outlines the eligibility criteria for the private use of a motor vehicle to be exempt from FBT if all of the following conditions are met:

● The vehicle is a panel van, utility truck (ute) or other commercial vehicle (ie. one not designed principally to carry passengers)

● The employee’s private use of such a vehicle is limited to:

● Travel between home and work

● Travel that is incidental to travel in the course of duties of employment

● Non-work related use that is minor, infrequent and irregular (eg. occasional use of the vehicle to remove domestic rubbish)

214. The ATO website at https://www.ato.gov.au/General/Fringe-benefits-tax-(FBT)/In-detail/Exemptions-and-concessions/Fringe-Benefits-Tax---Exempt-Motor-Vehicles/?page=3#Eligible_vehicles provides guidance on the assessment of whether vehicles meet the private use exemption. Guidance is provided as to what constitutes a ‘panel van’ and ‘dual cab ute’ as follows:

Panel Van	A solid rigid-bodied, non-articulated car, smaller than a truck, without rear side windows	Panel vans qualify for the work-related use exemption
Dual Cab Ute	Different from conventional goods vehicles with extra seats behind the driver and front passenger. They also share a common chassis which can fit a single or dual passenger cab and alternate tray section	Dual cabs qualify for the work-related use exemption only if they are not designed for the principal purpose of carrying passengers

215. Miscellaneous Taxation Ruling MT 2024 Fringe Benefits Tax: dual cab vehicles eligibility for exemption where private use is limited to certain work-related travel outlines particular criteria used for dual cab vehicles. Broadly, dual cabs are variants of conventional goods vehicles under which additional seating positions are provided behind the driver and front-passenger seats. They share a common chassis to which the single or dual passenger cab and alternate tray sections may be fitted.

216. Dual cabs, particularly those of lesser load capacities, are commonly fitted with styled steel well bodies and are often referred to as "utes" in advertising material. An initial question to be determined in deciding the eligibility of dual cabs for the work-related use exemption is whether they qualify as ‘utility trucks’ within the meaning of sub-section 8(2). If dual cabs are in fact utility trucks within the meaning of sub-section 8(2), it follows that they would qualify for the concession afforded by that sub-section irrespective of their load or passenger carrying design features.

217. The meaning of utility truck as was expressed at former subsection 82AF(2) of the Income Tax Assessment Act 1936 was considered in Case M10, 80 ATC 77; Case 92, 23 CTBR(NS) 869. Based on that decision, the term ‘utility truck’ as used in subsection 8(2) is seen as being restricted to derivatives of motor cars.

218. It follows that dual cabs will be capable of qualifying for the work-related use exemption only if either of the following tests are satisfied:

(a) they are designed to carry a load of one tonne or more, or more than eight passengers (sub-section 47(6)); or

(b) while having a designed load capacity of less than one tonne, they are not designed for the principal purpose of carrying passengers (sub-section 8(2)).

219. So, a dual cab that has a designed load carrying capacity of less than one tonne will qualify for the work-related use exemption, under sub-section 8(2), if the vehicle is not designed for the principal purpose of carrying passengers. It is considered that the appropriate basis for determining this issue is whether or not the majority of the designed load capacity is attributable to passenger carrying capacity. It is understood that this approach is consistent with that adopted under the Australian Design Rules in determining what is a passenger vehicle.

220. For this purpose, the designed passenger carrying capacity is to be determined by multiplying the designed seating capacity (including the driver's) by 68 kg, which is the figure adopted for the purposes of the application of the Australian Design Rules.

221. If the total passenger weight so determined exceeds the remaining ‘load’ capacity, the vehicle is to be treated as being designed for the principal purpose of carrying passengers and as such ineligible for work-related use exemption.

222. Provided that employee use of these dual cab vehicles in a particular FBT year is restricted to travel to and from work and any travel that is incidental to travel in the course of performing duties of employment, there will be no FBT liability.

APPLICATION TO YOUR CIRCUMSTANCES

QUESTION 1

223. For the purpose of this ruling, a determination is to be made whether the breakfast, lunch, dinner and incidental allowances paid to employees who travel overseas are travel allowance and not living-away-from-home allowance benefits as per section 30 of the FBTAA 1986.

224. In applying the criteria and various ATO views as authority, as outlined in paragraphs 94 - 102 above, it can be concluded that the breakfast, lunch, dinner and incidental allowances paid to employees who travel overseas are travel allowances, rather than living-away-from-home allowance benefits.

225. The facts which support this conclusion are as follows:

● The travel overseas is in connection to the employee’s work activities and the employee is required to undertake the travel:

● Company A have purchased items with specialist equipment from COUNTRY A for use by Company A

● employees are sent to the COUNTRY A for pre-delivery inspection and acceptance as well as training that is not available in Australia

● The travel is of short duration for a period of up to 4 weeks

● The travel is in the course of performing their job

● Approval for the travel overseas within Company A is heavily regulated

● Company A policy disallows private travel, so it is unlikely the employee is travelling with their family

226. The tax consequences of the allowance being a travel allowance is that the allowance is considered assessable income for the employee, and so FBT will not apply to the travel allowance. Expenses incurred by the employee in relation to earning their assessable income may be deductible to the employee.

QUESTION 2

227. For the purpose of this ruling, a determination is to be made whether the provision of accommodation to employees who travel overseas can be reduced as per section 52 of the FBTAA 1986.

228. In applying the criteria and legislative provisions as outlined in paragraphs 103 – 111 above, the provision of accommodation to employees in Branch A can be reduced pursuant to section 52 of the FBTAA 1986.

229. In this instance, Company A, as the employer, books the accommodation in their own name and is liable to pay for the accommodation which it then provides to their employee. As such, a residual fringe benefit arises pursuant to section 45 of the FBTAA 1986.

230. As a residual fringe benefit has arisen in these circumstances, section 52 of the FBTAA 1986 provides for a reduction of taxable value under the ‘otherwise deductible rule’ for that residual fringe benefit, and this would reduce the taxable value to nil.

QUESTION 3

231. For the purpose of this ruling, a determination is to be made whether the daily parking rate of Car Park A is less than the all-day parking threshold for the year ending 31 March 2019 pursuant to section 39C of the FBTAA 1986.

232. In applying the criteria and legislative provisions as outlined in paragraphs 112 – 119 above, the daily parking rate of Car Park A, is calculated as $xy.xy. This daily rate is derived from the calculation of $xx per month 19 days.

233. The daily rate of $xy.xy is less than the all-day parking threshold of $8.83 for the year ending 31 March 2019, pursuant to section 39C of the FBTAA 1986.

QUESTIONS 4, 6, 7, 9 and 13

234. For the purpose of this ruling, a determination is to be made regarding the monetary amount which can be used as the lowest fee charged, with respect to the provision of car parking benefits to employees of Company A as outlined in paragraphs 120 through to 154.

235. As such, a determination is to be made whether the following ‘daily rates’ can be used as the lowest fee charged for all day parking by the following ‘commercial car parking stations’ for the purpose of calculating the taxable value of car parking fringe benefits pursuant to section 39C of the FBTAA 1986.

● $xy.xy ($xxx per month 19 days) for Car Park B

● $xy.xy for Car Park C

● $xy.xy ($xxx per month 19 days) for Car Park D

● $xy.xy ($xxx per month 19 days) for Car park E

● $xy.xy ($xxxx per year 248 days) for Car Park I

Car Park B

236. In determining the fees charged by Car Park B for all-day parking under section 39C FBTAA 1986, and by extension for the purposes of sections 39A(1)(a)(iii), 39E(1) and 39DA FBTAA 1986 (where relevant), the fees charged for Car Park B’s monthly rate of $xxx is able to be used, when converted to a daily rate of $xy.xy. This figure is derived from the daily rate equivalent calculation using the monthly rate of $xxx, divided by the number of business days in the period, being 19 days.

237. Company A is able to value the car parking benefit of employees at the amount of $xy.xy, which is the daily rate equivalent of all day parking at Car Park b.

Car Park C

238. In determining the fees charged by Car Park C for all-day parking under section 39C FBTAA 1986, and by extension for the purposes of sections 39A(1)(a)(iii), 39E(1) and 39DA FBTAA 1986 (where relevant), the fees charged for Car Park C’s Early Bird Parking daily rate of $x is able to be used.

239. Company A is able to value the car parking benefit of employees at the amount of $x, which is the lowest fee charged by the operator of the parking station in the ordinary course of business to members of the public for all day parking at Car Park C.

Car Park D

240. In determining the fees charged by Car Park D for all-day parking under section 39C FBTAA 1986, and by extension for the purposes of sections 39A(1)(a)(iii), 39E(1) and 39DA FBTAA 1986 (where relevant), the fees charged for Car Park D’s monthly rate of $xxx is able to be used, when converted to a daily rate of $xy.xy. This figure is derived from the daily rate equivalent calculation using the monthly rate of $xxx, divided by the number of business days in the period, being 19 days.

241. Company A is able to value the car parking benefit of employees at the amount of $xy.xy, which is the daily rate equivalent of all day parking at Car Park D.

Car Park E

242. In determining the fees charged by Car Park E for all-day parking under section 39C FBTAA 1986, and by extension for the purposes of sections 39A(1)(a)(iii), 39E(1) and 39DA FBTAA 1986 (where relevant), the fees charged for Car Park E’s monthly rate of $xxx is able to be used, when converted to a daily rate of $xy.xy. This figure is derived from the daily rate equivalent calculation using the monthly rate of $xxx, divided by the number of business days in the period, being 19 days.

243. Company A is able to value the car parking benefit of employees at the amount of $xy.xy, which is the daily rate equivalent of all day parking at Car Park E.

Car Park I

244. In determining the fees charged by Car Park I for all-day parking under section 39C FBTAA 1986, and by extension for the purposes of sections 39A(1)(a)(iii), 39E(1) and 39DA FBTAA 1986 (where relevant), the fees charged for Car Park I’s yearly rate of $xxxx is able to be used, when converted to a daily rate of $xy.xy. This figure is derived from the daily rate equivalent calculation using the yearly rate of $xxxx, divided by the number of business days in the period, being 248 days.

245. Company A is able to value the car parking benefit of employees at the amount of $xy.xy, which is the daily rate equivalent of all day parking at Car Park I.

QUESTIONS 5 & 14

Pursuant to the definition of a ‘commercial parking station’ in subsection 136(1) FBTAA 1986, a determination is to be made regarding whether the following two car parking stations in the XX area are ‘commercial parking stations’:

● Car Park C

● Car Park J

‘Permanent’ car parking facility

246. In applying the definition and examples as listed in paragraphs 155 through to 178:

● Car Park C

● Car Park J

are considered to be permanent as they are purpose-built, established and are operating on an ongoing basis into the foreseeable future.

‘Commercial’ car parking facility

247. In applying the definition and examples as listed in paragraphs 155 through to 178:

● Car Park C

● Car Park J

are considered to be ‘commercial’ as they are run with a view to making a profit as the fees charged cannot be considered to be nominal and are reflective of the fees that would be charged by a car parking facility that operates on a commercial basis.

Ordinary course of business

248. In applying the definition as listed in paragraphs 155 through to 178, it is accepted that:

● Car Park C

● Car Park J

are offered as part of the day to day operations or activities carried out by the car park operators.

Members of the public

249. In applying the definition, examples and cases as listed in paragraphs 155 through to 178:

● Car Park C

● Car Park J

are available to be used by the public at large.

All day parking

250. In applying the definition and examples as listed in paragraphs 155 through to 178:

● Car Park C

provides parking for greater than between 7am – 7pm, and therefore satisfies the legislative definition of all day parking, and

● Car Park J

is considered to provide all day parking as they offer car parking facilities on a 24-hour, 7-day basis

Parking facilities on a public street, road, lane, thoroughfare or footpath

251. In applying the definitions as listed in paragraphs 155 through to 178:

● Car Park C

● Car Park J

are considered to not be on a public street, road, lane, thoroughfare or footpath.

One kilometre radius of premises

252. In applying the definition as listed in paragraphs 155 through to 178:

● Car Park C

● Car Park J

are considered to be within a one kilometre radius of the business premises at which Company A employees park their car during their hours of employment.

Fee charged by commercial parking stations

253. In applying definitions, formula and examples as listed in paragraphs 155 through to 178:

● Car Park C

● Car Park J

are able to utilise the daily rate equivalent of their periodic parking arrangements, derived from the rates provided for their hourly, daily, weekly and monthly parking fees.

Conclusion for questions 5 and 14

254. The car parks located at:

● Car Park C

● Car Park J

are ‘commercial parking stations’ as they fit within the definition of this term within subsection 136(1) of the FBTAA 1986.

QUESTION 8

255. For the purpose of this ruling, a determination is to be made whether the amount of $xy.xy, which is charged by Car Park E for overnight parking between 6:30pm – 6:00am, can be used in the ‘average cost method’ and the ‘statutory formula method’ FBT calculations pursuant to sections 39DA and 39F of the FBTAA 1986.

256. In applying the criteria, formulas and legislative provisions as outlined in paragraphs 179 – 195 above, the amount of $xy.xy, which is charged for overnight parking between 6:30pm – 6:00am, cannot be used in the ‘average cost method’ and the ‘statutory formula method’ FBT calculations pursuant to sections 39DA and 39F of the FBTAA 1986.

257. Both the ‘average cost method’ and the ‘statutory formula method’ FBT calculations are expressed in terms of ‘all-day parking’ which is defined in paragraphs 172 and 173, which is parking for a continuous period of 6 hours or more during a daylight period, between the hours of 7:00am and 7:00pm.

258. As such, the overnight rate of $xy.xy for parking between 6:30pm – 6:00am cannot be used in the ‘average cost method’ and the ‘statutory formula method’ FBT calculations pursuant to sections 39DA and 39F of the FBTAA 1986.

QUESTION 10

259. For the purpose of this ruling, a determination is to be made whether Car Park F located at x XX Street XX is located within 1 kilometre of the offices located at the following four addresses:

260. The office located at x XX Street XX is located approximately xx metres from Car Park F.

261. The office located at x YY Street XX is located approximately xx metres from Car Park F.

262. The office located at x ZZ Street XX is located approximately xx metres from Car Park F.

263. The office located at x TT Street XX is located approximately xx metres from Car Park F.

QUESTION 11

264. For the purpose of this ruling, a determination is to be made whether Car Park G located at x XX Street XX is located within 1 kilometre of the offices located at the following two addresses.

265. The office located at x XX Street XX is located approximately xx metres from Car Park G.

266. The office located at x YY Street XX is located approximately xx metres from Car Park G.

QUESTION 12

267. For the purpose of this ruling, a determination is to be made whether Car Park H located at x XX Street XX is located within 1 kilometre of the offices located at the following two addresses.

268. The office located at x XX Street XX is located approximately xx metres from Car Park H.

269. The office located at x YY Street XX is located approximately xx metres from Car Park H.

QUESTIONS 15, 17, 19 & 21

270. For the purpose of this ruling, a determination is to be made whether the following vehicles satisfy the definition of a ‘car’ as defined in subsection 136(1) of the FBTAA 1986:

● Car A

● Car B

● Car C

● Car D

271. In applying the criteria, calculations and legislative provisions as outlined in paragraphs 198 – 205 above, the following cars do satisfy the definition of a ‘car’ as defined in subsection 136(1) of the FBTAA 1986:

● Car A

● Car B

● Car C

● Car D

272. All 4 vehicles satisfy the definition of a ‘car’ pursuant to subsection 995-1(1) of the ITAA 1997 as they carry a load of less than 1 tonne:

Vehicle type	Payload capacity
Car A	xxx kgs
Car B	yyy kgs
Car C	zzz kgs
Car D	ttt kgs

273. All 4 vehicles satisfy the definition of a ‘car’ pursuant to subsection 995-1(1) of the ITAA 1997 as they carry fewer than 9 passengers:

Vehicle type	Passenger capacity
Car A	x passengers
Car B	y passengers
Car C	y passengers
Car D	y passengers

QUESTIONS 16, 18, 20 & 22

274. For the purpose of this ruling, a determination is to be made whether the following vehicles are a type which fall within subsection 8(2) of the FBTAA 1986, meet the requirements for restricted private use and so satisfy being classified as an ‘exempt car benefit’.

● Car A

● Car B

● Car C

● Car D

275. Pursuant to Company A policy, the drivers of these 4 vehicles are only permitted to use the vehicles for the following journeys:

● travel between home and office for on-call purposes, and

● travel between office and work-places to perform duties of employment.

276. With reference to the definitions outlined in paragraphs 201 through to 205 above, the 4 vehicles listed above are all determined to be ‘cars’, as they all designed to carry a load of less than 1 tonne and fewer than 9 passengers.

277. Following the guidance provided in the table at paragraph 211, Car A is regarded as a ‘panel van’ and Cars B, C and D are regarded as ‘dual cab utes’ or ‘utility trucks’.

278. As such, the 4 vehicles (a ‘panel van’ and 3 ‘utility trucks’) fall under sub-section 8(2) of the FBTAA 1986 and qualify for the exemption as they are designed to carry a load of less than one tonne, and are not designed for the principal purpose of carrying passengers.

279. The travel undertaken by the drivers of the 4 vehicles is considered ‘work-related travel’ as defined in sub-section 136(1) of the FBTAA 1986.

280. In applying the calculations as described in paragraphs 220 through to 221, the total calculated passenger weight does not exceed the ‘remaining load capacity’ of the vehicle, and so is eligible for work-related use exemption:

Vehicle type	Payload capacity	Passenger capacity	Remaining load capacity
Car A	xxx kgs	xxx kgs	aaa kgs
Car B	yyy kgs	yyy kgs	bbb kgs
Car C	zzz kgs	zzz kgs	ccc kgs
Car D	ttt	ttt kgs	ddd kgs

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