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This edited version has been archived due to the length of time since original publication.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

Authorisation Number: 1051490672706

Date of advice: 27 March 2019

Ruling

Subject: FBT: Living–away-from-home-allowance (LAHFA) and Relocation Exemptions

Question 1

Is the allowance paid to the employee a living-away-from-home allowance (LAHFA) fringe benefit for the purposes of section 30 of the Fringe Benefit Tax Assessment Act 1986 (FBTAA)?

Answer

Yes

Question 2

If the allowance paid to the employee is a living-away-from-home allowance (LAFHA) fringe benefit for the purposes of section 30 of the Fringe Benefit Tax Assessment Act 1986 (FBTAA), will it be exempt from fringe benefits tax (FBT) under section 31 of the FBTAA?

Answer

No

Question 3

Where costs incurred by the employer of relocating a current employee overseas are exempt under Division 13 of the Fringe Benefit Tax Assessment Act 1986 (FBTAA) are they deductible under 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997)?

Answer

Yes

This ruling applies for the following period:

Year ending 31 March 2019

Year ending 31 March 2020

The scheme commences on:

1 April 2018

Relevant facts and circumstances

This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

Relevant legislative provisions

Fringe Benefits Assessment Act 1986 Division 7 of Part III

Fringe Benefits Assessment Act 1986 Section 30

Fringe Benefits Assessment Act 1986 Section 31

Fringe Benefits Assessment Act 1986 Subsection 31(1)

Fringe Benefits Assessment Act 1986 Paragraph 31(1)(b)

Fringe Benefits Assessment Act 1986 Subsection 31(2)

Fringe Benefits Assessment Act 1986 Section 31B

Fringe Benefits Assessment Act 1986 Section 31C

Fringe Benefits Assessment Act 1986 Paragraph 31C(a)(ii)

Fringe Benefits Assessment Act 1986 Subsection 136(1)

Fringe Benefits Assessment Act 1986 Division 13 of Part III

Fringe Benefits Assessment Act 1986 Section 58AA

Fringe Benefits Assessment Act 1986 Section 58B

Fringe Benefits Assessment Act 1986 Section 58 D

Fringe Benefits Assessment Act 1986 Section 58 E

Fringe Benefits Assessment Act 1986 Section 58 F

Income Tax Assessment Act 1997 Section 8-1

Reasons for decision

Question 1

Is the allowance paid to the employee a LAHFA fringe benefit for the purposes of section 30 of the FBTAA?

Summary

The allowance paid to the employee will be a LAFHA fringe benefit for the purposes of section 30 of the FBTAA as it meets the requirements of subsection 30(1) of the FBTAA.

Detailed reasoning

In Chapter 1 of Fringe benefits tax: a guide for employers it is stated:

The FBTAA does not provide a definition of the term ‘usual place of residence’.

Conclusion

Question 2

If the allowance paid to the employee is a LAFHA fringe benefit for the purposes of section 30 of the FBTAA, will it be exempt from fringe benefits tax (FBT) under section 31 of the FBTAA?

Summary

The allowance paid to the employee meets the requirements of a LAHFA fringe benefit for the purposes of section 30 of the FBTAA.

However, as the employee intends to rent out their home through a booking service during the period that they are temporarily relocated, we consider that as the tenants stay will impinge on the availability of the residence for the employee’s immediate use and enjoyment, they will not satisfy paragraph 31C(a)(ii), and consequently the LAHFA will not be exempt from fringe benefits tax (FBT) under section 31 of the FBTAA?

Detailed reasoning

Background

Application of current law to your circumstances

31C MAINTAINING A HOME IN AUSTRALIA

The employee satisfies this section if:

Conclusion

Question 3

Where costs incurred by the employer of relocating a current employee overseas are exempt under Division 13 of the FBTAA are they deductible under 8-1 of the ITAA?

Summary

Where a cost incurred by the employer of relocating a current employee overseas is exempt under Division 13 of the FBTAA, the benefit will be a deductible expense under section 8-1 of the ITAA.

Detailed reasoning

Conclusion


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