Edited version of private advice

Authorisation Number: 1052036974997

Date of advice: 5 October 2022

Ruling

Subject: FBT - capping thresholds

Question 1

Is the organisation considered a 'public hospital' for the purposes of paragraph (c) of Step 2 of the Method Statement in subsection 5B(1E) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA)?

Answer

No.

Question 2

For the purposes of section 123C(2)(c) of the FBTAA, is the organisation a hospital carried on by a rebatable employer for the purposes of paragraph (d) Step 2 of the Method Statement in subsection 5B(1E) of the FBTAA?

Answer

No.

Question 3

On the basis that the answers to Questions 1 and 2 are no, is the organisation entitled to apply the $30,000 reduction to the taxable FBT value for each eligible employee pursuant to Step 3 of the Method Statement contained in subsection 5B(1E) of the FBTAA?

Answer

Yes.

This private ruling applies for the following periods:

Year ended 31 March 20xx

Year ended 31 March 20xx

Year ended 31 March 20xx

Year ended 31 March 20xx

The scheme commences on:

1 April 20xx

Relevant facts and circumstances

The organisation has been registered with the Australian Charities and Not-for-Profits Commission (the ACNC) since xxxx and the most relevant subtype registration that it has held since that date is that of a Public Benevolent Institution (PBI).

The organisation is not a government body and has a fully private ownership structure (being a not-for-profit structure). The organisation is not bound to provide services to the public by any government or council regulation. The funding provided to the organisation is predominantly from fees charged to private health funds or patients, for services provided to private or self-funded patients. Some admissions are covered by the Department of Veterans' Affairs (DVA), the Transport Accident Commission (TAC) and WorkCover. These admissions are covered by a fee for service arrangement with those insurers/government departments (with the only exception being the current temporary agreement with the State government). The hospital is considered to be a private hospital by the relevant State Department of Health.

Relevant legislative provisions

Fringe Benefits Tax Assessment Act 1986 Subsection 5B(1E)

Fringe Benefits Tax Assessment Act 1986 Subsection 57A

Fringe Benefits Tax Assessment Act 1986 Subsection 65J

Fringe Benefits Tax Assessment Act 1986 Section 123C

Question 1

Summary

The hospital operated by the organisation is not considered to be a 'public hospital' for the purposes of paragraph (c) of Step 2 of the Method Statement in subsection 5B(1E) of the FBTAA.

Detailed reasoning

Under section 57A of the Fringe Benefits Tax Assessment Act 1986 (FBTAA), benefits provided by the following employers in respect of the employment of an employee are exempt from Fringe Benefits Tax (FBT) up to a specified cap:

• registered PBIs endorsed under section 123C of the FBTAA
• registered health promotion charities
• public hospitals
• hospitals run by a rebatable employer (relevantly, charities that are not PBIs)
• government employers whose employees work in public and not-for-profit hospitals, and
• public ambulance services.

Benefits provided by the employers listed above will be exempt where the total grossed-up value of certain benefits (which are benefits not otherwise exempt) provided to each employee during the FBT year is equal to, or less than, the relevant capping threshold. If the total grossed-up value of certain benefits provided to an employee is more than that capping threshold, the employer will need to pay FBT on the excess.

Meaning of a 'public hospital' and a 'private hospital'

The term 'public hospital' is not defined in the FBTAA. No cases have considered the meaning of 'public hospital' in the context of the FBTAA. Authorities dealing with the meaning of 'public hospital' in other statutes have held the determination is a question of fact. These authorities include Little Company of Mary (SA) Incorporated v Commonwealth [1942] HCA 26 (Little Mary) and Australian Hospital Care (Latrobe) Pty Limited v Commissioner of Taxation [2000] FCA 1509 (Latrobe). Relevantly, the High Court held in Latrobe and Little Mary that not-for-profit hospitals carried on by religious orders were not 'public hospitals'. Those authorities considered the ordinary or common meaning of the term and equivalence between legislation in the same jurisdiction.

In particular, the Court in Little Mary ruled that the hospital was not a 'public hospital', despite being non-profit, as:

• it was under denominational control, being the Sisters in the State of South Australia of the Congregation of the Little Company of Mary, a congregation of nursing sisters of the Roman Catholic Church
• there was no public control
• the majority of patients paid for their medical treatment, and there was no offer of free or publicly funded services
• it did not rely on public funding or grants, instead generating revenue from the fees it charged.

The principles in Little Mary were followed in Latrobe, which despite providing public health care services, was ruled not to be a 'public hospital' based on the following factors:

• The hospital was privately-owned and run to profit its members.
• Whilst the hospital had obligations to provide free public health services to the public, and was controlled by the State, these controls arose out of voluntary undertakings under contracts entered into by the hospital.
• Whilst the hospital received state funding, this funding was primarily in the form of payments for the free health services it was providing under contract.

A range of indicia emerge from these cases that can assist in considering whether a hospital satisfies the ordinary meaning of a 'public hospital', which include:

• the ownership of the hospital and whether it is run for profit
• the level of public/government control over the hospital's operations (and whether any control is regulated or arises voluntarily by contract)
• whether the hospital offers free/public-funded services to the public, or if it charges fees for its services
• whether the hospital is funded by public grant or is self-funded.

However, despite these indicia of a 'public hospital', the Full Federal Court in Commissioner of Taxation v Hunger Project Australia [2014] FCAFC 69 has, in the context of the FBTAA, abstained from approaching a question about the ordinary or common meaning of a word or expression '... as a legal question to be dealt with by the mechanical application of past authority, irrespective of the present current understanding of the expression in the currently spoken English language...' or whether its meaning could be gleaned from other statutes which may use the same term.

Whilst acknowledging the Full Federal Court's comments, it is noted that Commonwealth legislation has, since at least 1953, distinguished between a 'public hospital' and a 'private hospital'. More recently, paragraph 121-5(8) of the Private Health Insurance Act 2007 requires that the Minister for Health's declaration that a facility is a 'hospital' must also include a statement as to whether the hospital is a public hospital or private hospital. The Australian Institute of Health and Welfare's Glossary, accessed 14 June 2021, contains the following definitions:

Public hospital: A hospital controlled by a state or territory health authority. Public hospitals offer free diagnostic services, treatment, care, and accommodation to all eligible patients.

Private hospital: A privately (non-government) owned and operated institution catering for patients who are treated by a doctor of their own choice. Patients are charged fees for accommodation and other services provided by the hospital and relevant medical and paramedical practitioners. Acute care and psychiatric hospitals are included in this category as are private free-standing day facilities.

The term 'private hospital' is not used in the FBTAA, and such hospitals may be operated by not-for-profit or for-profit entities. The FBTAA does not provide any concessional treatment by way of a per-employee exemption cap for a for-profit entity that operates a private hospital.

Aside from any legal meaning of a 'public hospital', there exists a dichotomy between 'public' ('jointly funded by the Commonwealth and the states and territories') and 'private' ('funded through private health insurance and individual out-of-pocket payments') health in Australia's health system. Such health services are provided through 'public' and 'private' hospitals, thus espousing a current ordinary or common understanding of those terms.

Definition of PBI

Endorsement by Commissioner as public benevolent institution (PBI):

(1)  The Commissioner must endorse an entity as a public benevolent institution if:

(a)  the entity is entitled to be endorsed as a public benevolent institution (see subsection (2)); and

(b)  the entity has applied for that endorsement in accordance with Division 426 in Schedule 1 to the Taxation Administration Act 1953.

(2)  An entity is entitled to be endorsed as a public benevolent institution if the entity:

(a)  is a registered public benevolent institution; and

(b)  has an ABN; and

(c)   is not an employer in relation to which step 2 of the method statement in subsection 5B(1E) applies.

Application to your circumstances

The organisation is registered as a charity with the ACNC. The hospital is a registered PBI which is endorsed under section 123C of the FBTAA. ACHA is not a government body; as it is independently controlled, the Board is not subject to any governmental control or representation, and it is primarily funded through the collection of fees either through private health insurance or out of pocket expenditure.

The Health Services Act 1988 provides the legal framework within which public health services are to be provided by hospitals and other health care agencies in Victoria. A private hospital is defined in the Act to mean:

'premises where persons are provided with health services of a prescribed kind or kinds and for which a charge is made and includes a privately operated hospital.'

The organisation is not considered to be a public hospital for the following reasons:

• it has a fully private ownership structure, which is charitable and not-for-profit structure.
• is not owned or controlled by the government or any government department, office or statutory body.
• All of the hospitals are self-funded from payments received for providing private health services by patients on a "fee for service" basis, which is partially funded either by way of reimbursement from a private health fund of the patient, or through the Commonwealth Medicare Scheme, or paid by the patient directly.
• In limited cases private health services are paid for via third parties including WorkCover and TPI.
• Whilst the hospitals provide public services under various agreements with SA Health and SA Local Health Networks, those commercial agreements were negotiated by the organisation and voluntarily entered into.
• No public health services provided by the hospitals for nil consideration.
• Any public health services provided to patients are paid for via the commercial agreements entered into with SA Health and the SA Local Health Networks.
• The hospital is considered to be a private hospital by the relevant State Department of Health.

In the context of a PBI that operates hospitals, the organisation is not a 'public hospital' under the common meaning of the term and does not meet the definition of a 'public hospital' for the purposes of Step 2, paragraph(c) of the Method Statement in subsection 5B(1E) of the FBTAA.

Also, a registered PBI cannot be endorsed as a PBI if it, amongst other things, is a 'public hospital'.

Question 2

Summary

No, the organisation is not considered a rebatable employer for the purposes of paragraph (d) of Step 2 of the Method Statement in subsection 5B(1E) of the FBTAA.

Detailed reasoning

Paragraph (d) of Step 2 of the Method Statement in subsection 5B(1E) of the FBTAA provides that "the employer is a hospital described in subsection 57A(4) (which is about hospitals carried on by societies and associations that are rebatable employers)."

Section 57A(4) states:

"A benefit provided in respect of the employment of an employee is an exempt benefit if the employer of the employee is a hospital carried on by a society or association that is a rebatable employer."

Section 65J of the FBTAA outlines the criteria required to be satisfied in order for an employer to be considered a rebatable employer, as follows:

"(1) An employer is a rebatable employer for a year of tax if the employer:

(a)  Is exempt from income tax at any time during the year of tax under any of the provisions set out in the following table; and

(b)  Satisfies the special conditions (if any) set out in the following table."

The table set out under section 65J includes the following types of employers:

• Registered charities;
• Scientific institutions;
• Public educational institutions;
• Specific societies, associations or clubs established for certain purposes; and
• Specific trades or unions.

Application to your circumstances

The organisation is a registered charity with the ACNC and therefore meets the first-mentioned criteria of being considered one of the employer types set out under section 65J.

In order to be considered a rebatable employer the organisation is also required to satisfy the specific conditions attached to this particular employer type. These conditions are set out in the table in section 65J as follows:

"The registered charity is not a rebatable employer for the year of tax if it:

(a) is a registered public benevolent institution; or

(b) is a registered health promotion charity; or

(c) is an institution of the Commonwealth, a State or a Territory; or

(d) has not been endorsed under subsection 123E(1); or

(e) is not an institution."

In this case, the organisation is a registered charity and is a registered PBI with the ACNC.

The organisation does not meet any of the other criteria under section 65J and, accordingly, is not a rebatable employer for the purposes of paragraph (d) of Step 2 of the Method Statement in subsection 5B(1E) of the FBTAA.

Question 3

Summary

Yes. Step 3 of the Method Statement in subsection 5B(1E) of the FBTAA would apply such that the individual grossed-up non-exempt amount of benefits provided to each employee would be reduced by the higher FBT exemption cap of $30,000 (but not below nil).

Detailed reasoning

The exempt amount is determined by reference to the employer's 'aggregate non-exempt amount' in accordance with the Method Statement in subsection 5B(1E) of the FBTAA, which states:

Step 2. If:

(a)  (Repealed by No. 142 of 2003)

(b)  the employer is a government body and the duties of the employment of one or more employees are as described in paragraph 57A(2)(b) (which is about duties of employment being exclusively performed in or in connection with certain hospitals); or

(c)   the employer is a public hospital; or

(ca) the employer provides public ambulance services or services that support those services, and the employee is predominantly involved in connection with the provision of those services; or

(d)  the employer is a hospital described in subsection 57A(4) (which is about hospitals carried on by societies and associations that are rebatable employers);

subtract $17,000 from the individual grossed-up non-exempt amount for each employee of the employer referred to in paragraph (c), (ca) or (d), or each employee referred to in paragraph (b), for the year of tax. However, if the individual grossed-up non-exempt amount for such as employee is equal to or less than $17,000, the amount calculated under this step for the employee is nil.

Step 3. If step 2 does not apply in respect of one or more employees of the employer, reduce the individual grossed-up non-exempt amount for each such employee by $30,000, but not below nil.

Therefore, as per Steps 2 and 3 of the Method Statement in subsection 5B(1E) of the FBTAA, registered PBIs which do not operate a public hospital and are not rebatable employers have a higher FBT exemption cap of $30,000 grossed-up value (that is, the value of the benefit plus the notional FBT liability) per employee, while a $17,000 per-employee FBT exemption cap applies to employees of government and non-government public hospitals, and hospitals run by rebatable employers (relevantly, charities that are not PBIs).

Application to your circumstances

The organisation is endorsed as a PBI for the purposes of section 123C of the FBTAA. As outlined in question 1A it is not entitled to be endorsed if Step 2 of the Method Statement in subsection 5B(1E) applies to it.

It was determined that the hospital operated by the organisation is not considered to be a 'public hospital' under paragraph (c) in Step 2 of the Method Statement in subsection 5B(1E) of the FBTAA.

It is considered that Step 3 of the Method Statement in subsection 5B(1E) of the FBTAA would apply in the current circumstances such that the individual grossed-up non-exempt amount of benefits provided to each employee would be reduced by the higher FBT exemption cap of $30,000 (but not below nil).

Conclusion

The organisation is an ACNC registered PBI and is endorsed by the Commissioner under section 123C of the FBTAA. The organisation is not a government body as it is independently controlled, (that is, the Board not subject to any governmental control or representation) and primarily funded through the collection of fees either through private health insurance or out of pocket expenditure (with the only exception being the current temporary agreement with the State government).

The organisation is not an employer in relation to which Step 2 of the Method Statement in subsection 5B(1E) of the FBTAA applies because it is not considered to be a public hospital. As such the organisation will be entitled to apply the $30,000 reduction to the taxable FBT value for each eligible employee pursuant to Step 3 of the Method Statement contained in section 5B(1E) of the FBTAA.

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