Edited version of private advice

Authorisation Number: 1052369761059

Date of advice: 25 March 2025

Ruling

Subject: Fringe benefits tax

Question 1

Is the provision of the per diem allowance by 'Australia Co' to its Overseas Short-term Visiting Employees (OSVEs) to cover food and incidentals a living-away-from-home allowance (LAFHA) benefit pursuant to subsection 30(1) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA) where the OSVEs are on assignment for a total period of up to XX months?

Answer 1

Yes.

Question 2

If the per diem allowance is not subject to section 30 of the FBTAA and the allowance is equivalent or less than, the reasonable amounts for travel allowance expenses under the relevant Taxation Determination in relation to income tax and reasonable travel and overtime meal allowance expense amounts for an income tax year, would Australia Co be subject to Pay As You Go Withholding (PAYGW) and need to report the per diems allowance on the OSVEs' Income Statement via a Single Touch Payroll (STP) pay event?

Answer 2

The per diem allowance is subject to section 30 of the FBTAA and as such is exempt from PAYGW under subsection 12-1(2) of Schedule 1 to the Taxation Administration Act 1953 (TAA).

Question 3

Is the provision of accommodation by Australia Co to OSVEs a fringe benefit as defined in subsection 136(1) of the FBTAA?

Answer 3

Yes, as the requirements for an exemption under subsection 47(5) of the FBTAA cannot be met the benefit provided will be an external period residual fringe benefit.

Question 4

If the answer to Question 3 is yes, does the 'otherwise deductible rule' in section 52 of the FBTAA apply to reduce the taxable value of the accommodation to nil?

Answer 4

No, the 'otherwise deductible rule' does not apply.

Question 5

Is the provision by Australia Co to OSVEs of return flights to the Australian assignment location and back to their overseas home again at the end of the XX-month assignment period (the Return Flights) a 'fringe benefit' as defined in subsection 136(1) of the FBTAA?

Answer 5

No, the flights are exempt benefits under section 58F of the FBTAA and therefore excluded.

Question 6

Is the provision by Australia Co to OSVEs of 'home leave' return flights to their overseas home for recreational purposes and back to the Australian assignment location after completion of each X months on assignment (the Home Leave Flights) a 'fringe benefit' as defined in subsection 136(1) of the FBTAA?

Answer 6

Yes, the provision of the Home Leave Flights is a fringe benefit, as they do not satisfy section 58F of the FBTAA as an exempt benefit. They are eligible for a reduction of taxable value under section 61A as overseas employment holiday transport.

Question 7

If the answer to Question 6 is yes, does the 'otherwise deductible rule' in section 52 of the FBTAA apply to reduce the taxable value of the transport to nil?

Answer 7

No, the 'otherwise deductible rule' does not apply.

Question 8

Where travel expenditure, being the per diem allowance, the accommodation, the Return Flights and the Home Leave Flights incurred by an OSVE is reimbursed, such that an expense payment benefit arises (rather than a residual benefit), would the Fringe Benefit Tax (FBT) principles discussed at Questions 1-7 equally apply?

Answer 8

The reimbursement payments that 'replace' the per diems allowance would be a fringe benefit.

The reimbursement payments in relation to accommodation would be a fringe benefit. They are not exempt benefits under section 21 of the FBTAA as the subsection 21(d) requirements are not met.

The reimbursement payments in relation to the Return Flights to and from the assignment (subject to the substantiation requirements being met) would be excluded benefits.

The reimbursement payments in relation to Home Leave Flights would be a fringe benefit. However, the reduction of taxable value under section 61A will apply if the conditions in subsection 61A(2) and conditions in section 143C that relate to expense payment fringe benefits are satisfied.

The 'otherwise deductible rule' would not apply to the above payments for travel expenditure.

The above reimbursement payments for travel expenditure would be exempt from PAYGW under subsection 12-1(3) of Schedule 1 to the TAA instead of subsection 12-1(2).

This ruling applies for the following periods:

Fringe benefits tax year ended 31 March 20XX

Fringe benefits tax year ended 31 March 20XX

Fringe benefits tax year ended 31 March 20XX

Fringe benefits tax year ended 31 March 20XX

The scheme commenced on:

1 April 20XX

Relevant facts and circumstances

1.            The Employer and its member firms provide services.

2.            The Employer and its member firms are separate legal entities.

3.            For the purposes of the ruling application, a non-Australian member firm is referred to as 'an Overseas Firm'.

4.            All Australian employees of the Employer are legally employed by 'Australia Co'. The employees of the Employer and its member firms can be deployed to other member firms, under an 'arrangement'.

5.            Australian projects require staff with specialised training, experience, and skills. Australian project employees may sometimes be sourced from an Overseas Firm.

6.            Australian projects therefore typically require relevant employees to travel from their home base to the project location for the duration of the project.

7.            Where an employee of an Overseas Firm is expected to be at the project location in Australia for up to XX months, they will fall under Australia Co's Short Term Policy.

Category X - Overseas Short-term Visiting Employees (OSVEs)

8.            An OSVE is an employee of an Overseas Firm that is expected to be at an Australian project location for up to XX months.

9.            Under the Short-term Policy, the OSVEs will:

•                     be seconded to Australia Co from an Overseas Firm;

•                     remain subject to the terms and conditions of their employment with their Overseas Firm which generally includes a requirement to travel for the purposes of employment if needed;

•                     be subject to the ultimate control of their Overseas Firm - only their Overseas Firm has the right to terminate the employment relationship with the employee;

•                     continue to have their salary paid by their Overseas Firm;

•                     accrue leave and other employment benefits (e.g. pension plan contributions) with their Overseas Firm;

•                     be subject to the performance review procedures of their Overseas Firm;

•                     have the costs of their employment charged to Australia Co or in the case of an arrangement with an Overseas Firm, the employment costs remain with the respective home employer; and

•                     work on client matters for Australia Co.

10.         While the OSVEs are on the project they will:

•                     be provided with accommodation by Australia Co. The accommodation will generally be a self-catering one-bedroom apartment within a commutable distance from the project location;

•                     be paid a per diem allowance by Australia Co to cover food and incidentals while they are on the project;

•                     be provided with the Home Leave Flights by Australia Co after the completion of each X months on assignment;

•                     not generally be accompanied by their family;

•                     not accrue leave or other benefits of employment from Australia Co; and

•                     to the best of Australia Co's knowledge, maintain their usual place of residence and living arrangements in their home location outside Australia.

Assumptions

11.         For the purposes of the private ruling, the Commissioner makes the following assumptions:

•                     There is a Double Tax Agreement (DTA) in place between Australia and the OSVEs' Home Country. Australia Co is the economic employer of the OSVEs while they are working in Australia.

•                     The OSVEs remain subject to the terms and conditions of their employment with their Overseas Firm however, the minimum terms and conditions set by Australia's National Employment Standards are met while they are working in Australia.

•                     The amount of the per diem allowance will be equivalent to or less than the reasonable amount specified in the relevant Taxation Determination for the relevant year.

•                     If a travel diary must be provided to Australia Co by the OSVEs by a declaration date, that travel diary will be provided by the OSVEs.

•                     In accordance with section 20A and 47A of the FBTAA, Australia Co will make a no-private-use declaration in respect of transport benefits provided to the OSVEs.

•                     The OSVEs will not maintain a home in Australia for their own use as defined in section 31C of the FBTAA.

•                     The OSVEs will not make a contribution to the cost of the accommodation.

•                     Australia Co's assignment locations for the OSVEs are in eligible urban areas.

Relevant legislative provisions

Fringe Benefits Tax Assessment Act 1986 section 20

Fringe Benefits Tax Assessment Act 1986 section 21

Fringe Benefits Tax Assessment Act 1986 section 23

Fringe Benefits Tax Assessment Act 1986 section 24

Fringe Benefits Tax Assessment Act 1986 section 30

Fringe Benefits Tax Assessment Act 1986 section 45

Fringe Benefits Tax Assessment Act 1986 subsection 47(5)

Fringe Benefits Tax Assessment Act 1986 section 51

Fringe Benefits Tax Assessment Act 1986 section 52

Fringe Benefits Tax Assessment Act 1986 section 58F

Fringe Benefits Tax Assessment Act 1986 section 61A

Fringe Benefits Tax Assessment Act 1986 section 136

Fringe Benefits Tax Assessment Act 1986 section 143

Fringe Benefits Tax Assessment Act 1986 section 143A

Fringe Benefits Tax Assessment Act 1986 section 143B

Fringe Benefits Tax Assessment Act 1986 section 143C

Income Tax Assessment Act 1997 section 6-5

Income Tax Assessment Act 1997 section 8-1

Taxation Administration Act 1953 section 12-1 of Schedule 1

Taxation Administration Act 1953 section 12-35 of Schedule 1

Reasons for decision

Question 1

Is the provision of the per diem allowance by 'Australia Co' to its Overseas Short-term Visiting Employees (OSVEs) to cover food and incidentals a living-away-from-home allowance (LAFHA) benefit pursuant to subsection 30(1) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA) where the OSVEs are on assignment for a total period of up to 12 months?

Summary

The provision of the per diem allowance to cover food and incidentals is a LAFHA benefit.

Detailed reasoning

A 'fringe benefit' is defined in subsection 136(1) of the FBTAA, which requires, inter alia, the following conditions to be satisfied:

1.             A benefit is provided at any time during the year of tax.

2.             The benefit is provided to an employee or an associate of the employee.

3.             The benefit is provided by:

(i)              their employer; or

(ii)              an associate of the employer; or

(iii)              a third party other than the employer or an associate under an arrangement between the employer or associate of the employer and the third party; or

(iv)              a third party other than the employer or an associate of the employer, if the employer or an associate of the employer:

                                          (A)                participates in or facilitates the provision or receipt of the benefit; or

                                          (B)                participates in, facilitates or promotes a scheme or plan involving the provision of the benefit;

and the employer or associate knows, or ought reasonably to know, that the employer or associate is doing so;

4.             The benefit is provided in respect of the employment of the employee.

5.             The benefit is not one that is specifically excluded as per paragraphs (f) to (s) of the definition of a fringe benefit in subsection 136(1).

Is a benefit provided?

Subsection 136(1) of the FBTAA provides a broad definition of a 'benefit' as:

any right (including a right in relation to, and an interest in, real or personal property), privilege, service or facility and, without limiting the generality of the foregoing, includes a right, benefit, privilege, service or facility that is, or is to be, provided under:

(a)           an arrangement for or in relation to:

(i)              the performance of work (including work of a professional nature), whether with or without the provision of property;

(ii)              the provision of, or of the use of facilities for, entertainment, recreation, or instructions; or

(iii)              the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction;

(b)           a contract of insurance; or

The definition of 'provide' and 'provider' in subsection 136(1) of FBTAA are as follows:

provide:

(a)           in relation to a benefit - includes allow, confer, give, grant or perform; and

(b)           ...

provider, in relation to a benefit, means the person who provides the benefit.

Australia Co provides OSVEs with a benefit of a per diem allowance. Therefore, this condition is satisfied.

Is a benefit provided to an employee or an associate of an employee?

An employee is defined in subsection 136(1) of the FBTAA to include a current, future and former employee. Subsection 136(1) defines a 'current employee' to mean a person who receives, or is entitled to receive, salary or wages.

'Salary or wages', as defined in subsection 136(1) of the FBTAA, means payments from which an amount must be withheld under section 12-35 of Schedule 1 to the Taxation Administration Act 1953.

OSVEs remain employees of their Overseas Firm. However, it is assumed that there is a DTA in place and that while they are working in Australia, Australia Co is the economic employer of the OSVEs. The OSVEs are deemed to be employees of their economic employer Australia Co. Therefore, this condition is satisfied.

Is it provided in respect of employment?

'Employee' is defined in subsection 136(1) of the FBTAA as a current, former, or future employee.

In this case, OSVEs are deemed to be employees of Australia Co.

There is no evidence that the OSVEs and Australia Co are dealing with each other in any other capacity than employees and employer. Therefore, it is considered that the provision of per diems allowance to OSVEs is sufficiently and materially connected[1], to their employment, and as such, would be considered to be 'in respect of' their employment. Therefore, this condition is satisfied.

Is it a living-away-from-home allowance and whether the benefit is excluded from the definition of a fringe benefit?

Subsection 136(1) of the FBTAA defines a LAFHA benefit as a benefit referred to in section 30 of the FBTAA.

Subsection 30(1) of the FBTAA sets out the circumstances in which an allowance paid by an employer to an employee will qualify as a LAFHA benefit to an employee and states:

Where:

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

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

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

(ii)              or

(iii)              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.

As previously discussed, the first condition of subsection 30(1) of the FBTAA is satisfied.

The second condition of subsection 30(1) of the FBTAA requires that the allowance is paid for additional expenses that are not deductible. If the payment to the OSVEs is a travel allowance this condition is not satisfied. A travel allowance is paid to cover additional expenses that are deductible expenses under section 8-1 of the ITAA 1997. It falls within the definition of 'salary and wages' and is therefore, excluded from being a fringe benefit.

LAFHA versus Travel Allowance

A payment is a LAFHA if it is reasonable to conclude from all the surrounding circumstances that some or all of the allowance is in the nature of compensation to the employee, for additional expenses incurred, or additional expenses incurred and other disadvantages suffered, because the employee is required to live away from his or her usual place of residence in order to perform the duties of employment. Additional expenses do not include expenses for which the employee would be entitled to an income tax deduction.

The whole or such part of the allowance that satisfies these tests is a LAFHA fringe benefit, the taxable value of which is calculated in accordance with the rules contained in section 31 of the FBTAA.

Taxation Ruling 2021/4 Income tax and fringe benefits tax: employees: accommodation and food and drink expenses travel allowances, and living-away-from-home allowances (TR 2021/4) provides guidelines on travel allowances and LAFHA.

Paragraph 130 of TR 2021/4 states, the main difference between a travel allowance and a LAFHA is that a:

              i.                travel allowance can only be paid to cover deductible accommodation and food and drink expenses and incidental expenses incurred by an employee when they are travelling on work

             ii.                LAFHA is paid to provide compensation to an employee for the additional living expenses incurred by an employee because their duties of employment require them live at location away from their usual residence.

Paragraph 133 of TR 2021/4 further provides, to determine whether an allowance is a travel allowance or a LAFHA, it is first necessary to determine what expenditure the allowance is designed to cover or compensate the employee for and whether those expenses are deductible under section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997).

Usual residence

The term 'normal residence' is defined in subsection 136(1) of the FBTAA as the employee's usual place of residence, when the employee's usual place of residence is in Australia.

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

However, subsection 136(1) of the FBTAA defines 'place of residence' to mean:

(a)           a place at which the person resides; or

(b)           a place at which the person has sleeping accommodation;

whether on a permanent or temporary basis and whether or not a shared basis.

In the absence of a legislative reference, it is relevant to refer to the ordinary meaning of the word 'usual'. The Macquarie Dictionary defines 'usual' to mean 'habitual or customary...'.

It is accepted that, in the current circumstances, an employee's permanent and settled principal place of residence is the employee's usual place of residence.

Relevant factors -- travelling on work versus living expenses

To be deductible under section 8-1 of the ITAA 1997, the expense must have a sufficiently close connection to the performance of the employment duties and activities through which the employee earns income.[2] It will not be enough to show some general link or causal connection between the expenditure and the production of income.

Paragraph 24 of TR 2021/4 provides, if any of the following factors apply, the employee will not be travelling on work, and the accommodation and food and drink expenses incurred will be living expenses and therefore, not deductible:

              i.                The expenses are incurred because the employee's personal circumstances are such that they live far away from where they gain or produce their assessable income. (personal circumstances - see paragraphs 25 to 37 of this Ruling).

             ii.                The employee incurs the expenses because they are living at a location (living at a location - see paragraphs 38 to 78 of this Ruling).

           iii.                The employee incurs the expenses as a result of relocating from their usual residence (relocation - see paragraphs 79 to 86 of this Ruling).

Personal circumstances

An employee cannot deduct accommodation and food and drink expenses they have incurred where, due to their personal circumstances, they live far away from where they gain or produce their assessable income.[3]

In this case, it is OSVEs' work requirements and not their personal circumstances that require them to stay away from their usual residence. It is not only the fact they must stay overnight away from their usual residence to earn their assessable income, it is their 'income-producing activities' or 'work activities' which require them to do so.

Relocation

Where an employee has relocated for work, the cost of accommodation and food and drink will be living expenses; regardless of whether moving to the new location is required by the employer or the work.

There is no suggestion that any OSVEs have relocated based on the information provided by Australia Co. It is assumed that OSVEs will maintain their usual residence in their home locations during the period of their assignment in Australia, and return to that home or another location at the end of their assignment in Australia.

Living at a location

Paragraph 42 provides, the following factors would support a characterisation of an employee as living at a location away from their usual residence:

•                     there is a change in the employee's regular place of work

•                     the length of the overall period the employee will be away from their usual residence is a relatively long one

•                     the nature of the accommodation is such that it becomes their usual residence

•                     whether the employee is, or can be, accompanied by family or visited by family and friends.

All the above factors should be considered, and no single factor is necessarily decisive. The weight given to each factor will vary depending on the employee's individual circumstances and is not a mathematical process. Reaching a conclusion as to whether an employee is living at a location away from their usual residence is a matter of judgment which requires a holistic assessment based on a consideration of all the factors.

Change in regular place of work

Most employees have a regular place of work, being a usual or normal place where the employee starts and finishes their work duties with a particular employer[4].

In most cases, identifying an employee's regular place of work is clear. In circumstances where it is not clear, it may be necessary to consider in more depth the contract of employment; customary practice; the nature of the work duties; where these duties commence; and at what point in time the employee is under the direction and control of their employer, in order to determine where the employee's regular place of work is.[5]

Where there is a change in the employee's regular place of work and the employee incurs accommodation and food and drink expenses to be closer to their new regular place of work, the employee will be living at that new location away from their usual residence. In these circumstances, the expenses incurred are living expenses and are not deductible.

In this case, the OSVEs are required to attend their assigned offices in Australia, regularly for a continuous period of at least 3 months, to be eligible for a Home Flight. It is therefore considered that an additional regular place of work arises.

As a result, the OSVEs would incur accommodation and food and drink expenses due to being close to their new regular place of work.

Length of period away from their residence

The 'length of period away' means the overall period of time the employee spends living at a particular location for work. Where an employee is living at one location for work for an extended period, that period is not broken by short trips they take from that location, for example travelling back to their usual residence on weekends or when travelling on work from that location. Generally, the longer an employee spends away from their usual residence for work, the more likely it is that the employee is living at the location.

OSVEs are expected to live at an Australian assignment location for 90 calendar days or more in total in an FBT year. They will be at the same work location for more than 21 calendar days at a time continuously, which suggests that the OSVEs are living away from their residence.[6]

The nature of the accommodation

The nature of an employee's accommodation is relevant but does not determine whether the employee is living at a location away from their usual residence. Generally, where an employee works away from home for a considerable period and, for that period, stays in accommodation generally used for longer term accommodation (such as a house, unit or apartment or caravan), this would support a view that they are living at a location away from their usual residence.

In this instance Australia Co has advised that the accommodation will be in a self-catering one-bedroom apartment, which may be shared between two OSVEs.

Having regard to this, the nature of the accommodation tends towards a conclusion the OSVEs are living away from home.

Whether the employee is or can be accompanied by family or visited by family or friends

An employee who is living at a location away from their usual residence can generally be accompanied or visited by their family and friends.

In this case Australia Pty Ltd has advised that OSVEs would not generally be accompanied by their family. There is also no indication that family or friends are 'not allowed' to accompany or visit.

Therefore, this factor may tend towards a conclusion the OSVEs are travelling on work.

Conclusion on whether the OSVEs are living at the location

Having regard to the analysis above, OSVEs' regular place of work has changed, and they are living away from their usual residence.

It is considered that the circumstances are similar to that in Example 7 of TR 2021/4, because they:

(a)          stay for a relatively long period, being at least 90 days;

(b)          are deemed to be employees of Australia Pty Ltd while working in Australia;

(c)          do not bring their family with them;

(d)          will stay in apartment-style accommodation.

Therefore, in the circumstances it is considered the OSVEs are living away from their usual residence due to:

(a)          There being a change in the OSVEs' regular place of work from their Overseas Firm locations to Australian locations.

(b)          The length of time the OSVEs will be away from their usual residences at their home locations.

(c)          The fact that they will stay in apartment-style accommodation while they are working in Australia.

Conclusion on whether the OSVEs' 'additional expenses' are deductible expenses

Having regard to the analysis above, while OSVEs' work necessarily requires them to undertake the travel, the additional expenses would not be deductible expenses because they are living away from their usual residence, and thus the expenses are living expenses and not deductible.

Is the benefit excluded from the definition of a fringe benefit?

A benefit which comes within paragraphs (f) to (s) of the definition of a 'fringe benefit' in subsection 136(1) of the FBTAA is excluded from being a fringe benefit.

Paragraph (g) of the definition of 'fringe benefit' excludes 'a benefit that is an exempt benefit'.

There is no evidence to suggest the benefit is an exempt benefit.

Conclusion on whether the employees are provided with a 'LAFHA fringe benefit'

The benefit of the per diem allowance is provided to the OSVEs in respect of their employment. It is in the nature of compensation for additional expenses they might incur, by reason that the duties of their employment require them to live away from their normal residence while they are on assignment.

OSVEs' additional expenses are not deductible expenses. Therefore, the per diem allowance paid to them by Australia Pty Ltd is a living-away-from-home allowance fringe benefit under section 30 of the FBTAA.

The LAFHA may be concessionally taxed under section 31 of the FBTAA if all of the requirements are satisfied. These are:

(a)          The employee maintains a home in Australia.

(b)          The allowance relates to the first XX months of LAFH

(c)          Accommodation and food expenses are substantiated, and

(d)          A declaration that (a) and (b) are satisfied and given to the employer.

As OSVEs do not meet the condition (a) above, their circumstances do not qualify for concessional taxation treatment.

Question 2

If the per diem allowance is not subject to section 30 of the FBTAA and the allowance is equivalent or less than, the reasonable amounts for travel allowance expenses under the relevant Taxation Determination in relation to income tax and reasonable travel and overtime meal allowance expense amounts for an income tax year, would Australia Pty Ltd be subject to PAYGW and need to report the per diems allowance on the OSVEs' Income Statement via a STP pay event?

Conclusion

The per diem allowance is a LAFHA fringe benefit pursuant to section 30 of the FBTAA as concluded under Question 1. As such it is not subject to PAYGW under subsection 12-1(2) of Schedule 1 to the TAA.

Question 3

Is the provision of accommodation by Australia Pty Ltd to OSVEs a 'fringe benefit' as defined in subsection 136(1) of the FBTAA?

Summary

The provision of accommodation is a fringe benefit. As the requirements for an exemption under subsection 47(5) of the FBTAA cannot be met, the benefit provided will be an external period residual fringe benefit.

Detailed reasoning

Is a benefit provided?

Australia Pty Ltd pays for OSVEs accommodation directly which constitutes a 'benefit'. Therefore, this condition in the definition of a 'fringe benefit' in subsection 136(1) of the FBTAA is satisfied.

Is the benefit provided to an employee or an associate of an employee?

As discussed earlier the OSVEs are deemed to be employees of Australia Pty Ltd as defined under subsection 136(1) of the FBTAA.

Is the benefit provided by the employer, or an associate of the employer or a third party in a situation that comes within either paragraph (e) or (ea) of the 'fringe benefit' definition?

The benefit, being the provision of accommodation to the OSVEs is provided by Australia Pty Ltd. As such this condition in the definition of 'fringe benefit' in subsection 136(1) of the FBTAA is satisfied for the reasons as outlined above under Question 1.

Is the provision of accommodation a Housing Benefit?

A housing benefit arises where an employee or an associate is granted a lease or licence to occupy employer provided premises as their usual place of residence.

The Commissioner considers that generally an employee is living away from their usual place of residence when the employee would have continued to live in a particular place, but for having to change residence in order to work temporarily for the employer at another locality; and they expect to return to that place when the temporary period is over.[7]

Therefore, in this instance as the OSVEs maintain their usual place of residence, being their customary or habitual place of residence outside Australia, the benefit cannot be a housing benefit. The benefit provided is therefore a residual fringe benefit under section 45 of the FBTAA as it does not fit within the other specific categories contained in Divisions 2 to 11 of the FBTAA.

Is the benefit excluded from the definition of a fringe benefit?

A benefit which comes within paragraphs (f) to (s) of the definition of a 'fringe benefit' in subsection 136(1) of the FBTAA is excluded from being a fringe benefit. Paragraph (g) of the definition of 'fringe benefit' excludes 'a benefit that is an exempt benefit'.

Subsection 47(5) of the FBTAA provides that accommodation provided by an employer to an employee can be an exempt benefit where:

(a)           a residual benefit consisting of the subsistence, during a year of tax, of a lease or licence in respect of a unit of accommodation is provided to an employee of an employer in respect of his or her employment; and

(b)           the unit of accommodation is for the accommodation of eligible family members and is provided solely because the duties of that employment require the employee to live away from his or her normal residence; and

(ba)        the employee satisfies:

(i)              sections 31C (about maintaining an Australian home) and 31D (about the first 12 months); or

(ii)              section 31E (about fly-in fly-out and drive-in drive-out requirements); and

(c)           the accommodation is not provided while the employee is undertaking travel in the course of performing the duties of that employment

(d)           any of the following conditions is satisfied:

(i)              subsection (7) applies in relation to the provision of transport for the employee in connection with travel in the period in the year of tax when the lease or licence subsisted, being travel between the employee's usual place of residence and the employee's usual place of employment;

(ii)              if the employee satisfies sections 31C and 31D - the employee gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, purporting to set out the matters in subparagraphs 31F(1)(a)(i) to (iii);

(iii)              if the employee satisfies section 31E - the employee gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, purporting to set out the matters in subparagraphs 31F(1)(b)(i) to (iii);

Paragraph 47(5)(ba)

Paragraph 47(5)(ba) states that the employee must satisfy section 31C and 31D, or section 31E of the FBTAA.

In relation to section 31C, Australia Pty Ltd has advised that they assume the OSVEs will not maintain a home in Australia for their own use as defined in section 31C of the FBTAA. Subparagraph 47(5)(ba)(i) is therefore not satisfied.

In relation to section 31E, subsection 31E(a) requires the employee, on a regular and rotational basis:

(i)              works for a number of days and has a number of days off (but not the same days in consecutive weeks); and

(ii)              on completion of the working days, travels from his or her usual place of employment to his or her normal residence and, on completion of the days off, returns to that usual place of employment.

In this case, it is difficult to conclude that the OSVEs travel from their usual place of employment to their normal residence and, on completion of the days off, return to that usual place of employment 'on a regular and rotational basis'. In this case, the travel to their normal residence only occurs every 3 months and their assignments end within XX months, which is a relatively short period. This suggests the 'travel' is not on a regular basis. There is also no requirement that someone else shares or is rostered on to perform an OSVE's employment duties while they are having time off. This suggests that the employee is not working on a rotational basis.

Even if subsection 31E(a) above was satisfied, subsection 31E(b) further requires such 'travel' to be customary for employees performing similar duties in that industry. In this case, it is reasonable to believe that many of Australia Pty Ltd's 'non-OSVE employees', being the 'local employees' who perform similar duties as of the OSVEs, do not normally 'travel' like the OSVEs do. Therefore, the term 'customary for employees performing similar duties in that industry' is not satisfied.

As neither subparagraph 47(5)(ba)(i) or subparagraph 47(5)(ba)(ii) could be satisfied, paragraph 47(5)(ba) cannot be satisfied.

Conclusion

As it is a requirement that all the paragraphs under subsection 47(5) are satisfied to enable the exemption, the 'failed' paragraph 47(5)(ba) means the exemption is not available to the OSVEs.

It is not necessary to further consider other paragraphs under subsection 47(5).

As the OSVEs do not satisfy all the conditions for exemption under subsection 47(5) of the FBTAA, a residual fringe benefit will arise.

Residual fringe benefits can be separated under four different categories under subsection 136(1) of the FBTAA as:

(1)           In-house non-period residual fringe benefits;

(2)           In-house period residual fringe benefits;

(3)           External non-period residual fringe benefits;

(4)           External period residual fringe benefits.

Broadly, an 'in-house residual fringe benefit' is a residual benefit provided by an employer or associate of the employer as part of their business activities. An 'external residual fringe benefit' is a benefit that is not an in-house residual fringe benefit.

The distinction between a 'period' and a 'non-period' residual fringe benefit depends on the definition of 'period residual fringe benefit' in subsection 136(1) and section 149 of the FBTAA. A 'period residual fringe benefit' is defined as a residual fringe benefit that is provided during a period. Under subsection 149(1), a benefit is taken to be provided during a period if, and only if, it is provided and subsists during a period of more than one day and is not deemed to be provided at a particular time or on a particular day. The effect of this is that, generally, where a residual fringe benefit is provided and subsists for more than one day, it is a period residual fringe benefit.

In this case, Australia Pty Ltd provides accommodation of serviced apartments to OSVEs. Australia Pty Ltd does not provide accommodation to members of the public, and the benefit is provided for a period exceeding one day. There is no evidence the OSVEs and Australia Pty Ltd are dealing with each other in any other capacity than as employees.

Therefore, the provision of accommodation to these OSVEs is an external period residual benefit.

There is no evidence to suggest the benefit is an exempt residual benefit. It is considered that the other requirements of a fringe benefit are satisfied and that the benefit is a residual fringe benefit.

Question 4

If the answer to Question 3 is yes, does the otherwise deductible rule in section 52 of the FBTAA apply to reduce the taxable value of the accommodation to nil?

Detailed reasoning

The taxable value of the external period residual fringe benefit calculated in accordance with section 51 of the FBTAA is reduced where the 'otherwise deductible rule' in subsection 52(1) applies.

The 'otherwise deductible rule' operates to reduce the taxable value of a residual fringe benefit where the employee would have been entitled to a once-only deduction under section 8-1 of the ITAA 1997 (or where a specific provision of the tax laws applies to provide the deduction for the expense), had the employee personally incurred and paid the unreimbursed expense.

As concluded in Question 1, the OSVEs' per diem allowance would not be deductible under section 8-1 of the ITAA 1997 because their expenses would not be incurred in the course of gaining or producing their assessable income, and the expenditure is of a private or domestic nature because OSVEs are living away from their usual residence. For the same reasons, their accommodation expense would not be deductible. Therefore, the taxable value of the fringe benefits cannot be reduced.

Question 5

Is the provision by Australia Pty Ltd to OSVEs of return flights to the Australian assignment location and back to their overseas home again at the end of the 12-month assignment period (the Return Flights) a 'fringe benefit' as defined in subsection 136(1) of the FBTAA?

Summary

The Return Flights are exempt benefits under section 58F of the FBTAA and are therefore, excluded from being fringe benefits.

Detailed reasoning

It is considered that the provision by Australia Pty Ltd to OSVEs of return flights is a residual benefit, because they do not fall into the category of benefits set out in Subdivisions A of Divisions 2 to 11 of the FBTAA.

Is the benefit provided an exempt benefit and therefore excluded from being a fringe benefit?

A benefit that is an exempt benefit in relation to the year of tax is not a 'fringe benefit'.

The provision of a car, expense payment, property or residual benefit which is in respect of 'relocation transport' is an exempt benefit under section 58F of the FBTAA. The meaning of 'relocation transport' is contained in section 143A of the FBTAA. Relocation transport is transport that enables an employee to relocate to a new residence in circumstances where they are required to live away from home in order to perform employment-related duties, or are similarly required to relocate their usual place of residence.

Each requirement from paragraphs (a) to (g) of section 143A need to be satisfied for the Return Flights to be relocation benefits.

(a) a specified type of benefit is provided to an employee (or their associate) in respect of the employment of the employee which is in respect of or in connection with the provision of transport

It is considered that Australia Pty Ltd is providing OSVEs with a residual benefit, as such, it is a benefit of the type specified in paragraph 143A(a).

(b) The transport, meals or accommodation is for a family member

Subsection 136(1) of the FBTAA defines 'family member' to mean 'the employee', 'the spouse of the employee', and 'a child of the employee'. Australia Pty Ltd provides the Return Flights to the employee (being the OSVEs), therefore satisfying the requirements in paragraph 134A(b) of the FBTAA.

(c) The transport is required solely because the employee is or was required to live away from their usual place of residence in order to perform the duties of that employment

The conditions in paragraph 134A(c) require the transport is required solely because:

(i)              the employee is required to live away from his or her usual place of residence in order to perform the duties of that employment;

(ii)              the employee, having lived away from his or her usual place of residence in order to perform the duties of that employment, is required to return to his or usual place of residence:

                          (A)                in order to perform those duties; or

                          (B)                because the employee has ceased to perform those duties; or

(iii)              the employee is required to change his or her usual place of residence in order to perform the duties of that employment.

As addressed under Question 1, OSVEs are living away from their usual residence. Therefore, the condition in subparagraph 143A(c)(i) is met in relation to the first flight to Australia provided to OSVEs (and other family members if relevant).

This flight is solely provided because the employee is required to live away from their usual place of residence overseas in order to perform the duties of their employment with Australia Pty Ltd.

Similarly, the condition in subparagraph 143A(c)(ii) is also satisfied in relation to the OSVEs' last flight back to their overseas homes at the end of their assignments. This is because the OSVEs, having lived away from their usual place of residence in order to perform the duties of that employment, are required to return to their usual place of residence once they have ceased to perform those duties at the Australian locations.

(d) The transport is provided to enable a family member to take up residence

The conditions in paragraph 143A(d) are met in relation to the:

(a)           the first flight to Australia to the OSVEs' Australian assignment location, as it enables the employee to take up residence near their new assignment location while living away from their usual place of residence overseas per subparagraph 143A(d)(i) and

(b)           the last flight back overseas at the end of the assignment as it enables the employee to return to their usual place of residence overseas, per subparagraph 143A(d)(ii).

This condition would not be met in the instance where an OSVE elects for the last flight to be to a location other than where their usual place of residence is overseas. In such a case, the transport would not be provided to enable the employee to take up residence at their usual place of residence.

(e) If the transport is for the spouse, or a child, of the employee

The condition in paragraph 143A(e) requires that the transport provided to a spouse or child of the employee, is not provided to enable the spouse or child to accompany the employee while the employee or the spouse or child is undertaking travel in the course of performing the duties of their employment. In the case of the spouse or child, this is duties of employment with the same employer or as an employee of the employee.

Australia Pty Ltd has advised that no family members are travelling to and from Australia with the OSVEs therefore it is considered that this condition is not relevant.

(f) If the transport is for the employee - the transport is not provided while the employee is undertaking travel in the course of performing the duties of that employment

Taxation Ruling 2021/1 Income tax: when are deductions allowed for employee's transport expenses? (TR 2021/1) provides guidance on whether travel expenses incurred by an employee are 'in the course of' gaining or producing assessable income.

TR 2021/1 explains that 'other ways that this has been expressed in the context of transport expenses, is that the employee is travelling 'on work'[8], the travel is part of the employment, or the travel is an incident of the employment.[9]'

As per paragraph 84 of TR 2021/1, where an employee is living at a location away from their usual residence (usually on a temporary basis) for work but retains a connection to their previous home (for example, family remains behind), transport between their new work location and their previous home would not be deductible. This is the case even if the agreement with their employer involves the employer agreeing to provide or fund such transport.

As addressed under Question 1, it is considered that the OSVEs are living at a location away from their usual residence and therefore the travel between their home and their subsequent regular place of work is not in the course of gaining or producing their assessable income.

It is considered that in these circumstances the OSVEs are not travelling while performing the duties of their employment with Australia Pty Ltd and therefore, the condition in paragraph 143(A)(f) is met.

(g) The benefit is not provided under a non-arm's length arrangement

There is no suggestion on the information provided that the Return Flights are provided under a non-arm's length arrangement therefore the condition in paragraph 134A(g) is met.

It is considered that the Return Flights satisfy the conditions therefore are section 143A relocation transport benefits.

Conclusion on the application of section 58F

Having regard to the requirements in sections 143A and 58F of the FBTAA, it is considered that the Return Flights provided by Australia Pty Ltd to OSVEs between their overseas home locations and assignment locations in Australia are in respect of 'relocation transport' and are therefore, exempt benefits under section 58F. As such they are excluded from being fringe benefits.

It is assumed that the necessary evidence as specified under paragraph 58F(c)(ii) is provided to the employer before the FBT return for the year must be lodged.

Question 6

Is the provision by Australia Pty Ltd to OSVEs of 'home leave' return flights to their overseas home and back to the Australian assignment location after the completion of each 3 months on assignment (the Home Leave Flights) a 'fringe benefit' as defined in subsection 136(1) of the FBTAA?

Summary

The provision of the Home Leave Flights is a fringe benefit. The Home Leave Flights do not satisfy section 58F of the FBTAA as exempt benefits, but they are eligible for reduction of taxable value under section 61A as overseas employment holiday transport.

Detailed reasoning

OSVEs are to be provided with the Home Leave Flights by Australia Pty Ltd after the completion of each X months on assignment. The Home Leave Flights are to be provided in order for the OSVEs to take short-term leave at their home location. The purpose of the leave is to enable the OSVEs to have a holiday of not less than 3 days and to reconnect with family. The length of the leave period could vary, but typically between 1-2 weeks at a time. The OSVES are not required to work in the leave period. They will return to the assignment location in Australia right after the short-term leave. The Home Leave Flights are provided because it is customary in the industry.

It is considered that Australia Pty Ltd is providing OSVEs with a residual benefit, comprising of the Home Leave Flights from their Australian assignment location to their overseas home location and return to the Australian assignment location, as the flights do not fall into the category of benefits set out in Subdivisions A of Divisions 2 to 11 of the FBTAA.

As outlined above, a benefit that is an exempt benefit in relation to the year of tax is not a 'fringe benefit'.

Is the benefit provided an exempt benefit and therefore excluded from being a fringe benefit?

The provision of a car, expense payment, property or residual benefit which is in respect of 'relocation transport' is an exempt benefit under section 58F of the FBTAA.

Section 143A requires the benefits must be provided as a consequence of the employee being required to relocate. As the Home Leave Flights are provided for the OSVEs to have short-term leave at their home location for recreational purposes the benefits are not being provided for relocation purposes. Accordingly, they do not meet the requirements of section 143A. Therefore, they are not a section 58F exempt relocation benefit.

It is concluded that all of the requirements of a 'fringe benefit' as defined in subsection 136(1) of the FBTAA are satisfied, and that a residual fringe benefit arises in respect of the Home Leave Flights.

Can the taxable value of the residual fringe benefits be reduced?

Transport, accommodation, or meals provided to an overseas employee and family members in connection with having a holiday of not less than three days can be subject to a reduction in taxable value under section 61A of the FBTAA.

In relation to the section 61A reduction of taxable value for overseas employment holiday transport, the following paragraphs in section 143C consider whether the Home Leave Flights are Overseas Employment Holiday Transport:

(a) a specified type of benefit is provided to an employee (or their associate) in respect of the employment of the employee which is in respect of or in connection with the provision of transport

The provision of Home Leave Flights is a residual benefit, as such, it is a benefit of the type specified in paragraph 143C(1)(a).

(b) The transport, meals or accommodation is for a family member

Subsection 136(1) of the FBTAA defines 'family member' to mean 'the employee', 'the spouse of the employee', and 'a child of the employee'. Australia Pty Ltd provides the Home Leave Flights to the employee (being the OSVEs), therefore satisfying the condition in paragraph 143C(1)(b) of the FBTAA.

(c) The transport is required being provided wholly or principally to enable the family member to have a holiday for a period of not less than 3 days.

Australia Pty Ltd has confirmed that the Home Leave Flights are provided to enable the OSVEs to have a holiday for not less than 3 days. This condition is therefore considered satisfied.

(d) at the time immediately before the commencement of travel, the employee was an overseas employee and the employee's overseas posting period was not less than 28 days.

An employee is an overseas employee if they meet the requirements in section 143B:

(a)           the employee's usual place of residence is in a particular country (the 'home country')

(b)           the employee performs their employment duties at a place outside the home country, and

(c)           the employee is required to live outside the home country in order to perform those duties at the overseas employment place.

Applying the above 'overseas employees' definition to the conditions in paragraph 143C(1)(d):

(a)           the OSVEs are overseas employees, and

(b)           immediately before the commencement of each Home Leave Flights, the OSVEs are expected to work for 3 months on the Australian assignment, which is not less than 28 days.

Consequently, the conditions in the paragraph 143C(1)(d) are met.

(e) If the transport is for an employee, it is provided while the employee is on recreation leave of not less than 3 working days and at the completion of that recreation leave, the employee resumes the duties of that employment at the overseas location

Based on the facts provided, the OSVEs are on recreation leave of not less than 3 working days; at the completion of the Home Leave, they would resume duties at the Australian assignment location. This condition is therefore satisfied.

(f) If the transport is for the employee - the transport is between the employee's overseas employment location and another place

This condition is satisfied as the Home Leave Flights are to enable the OSVEs to travel from the place of their overseas employment and another place, being their home locations.

(g) and (h) conditions for expense payment fringe benefit and property fringe benefit, respectively

As the benefit is a residual fringe benefit, these two conditions are not applicable in this case.

(j) in the case of a residual fringe benefit - the benefit is not in respect of remote area holiday transport

Section 143 of the FBTAA sets out the definition of remote area holiday transport, where paragraph 143(1)(f) requires the employee to perform their duties at a place in a State or internal Territory, but not at a location in, or adjacent to, an eligible urban area. It is assumed that Australia Pty Ltd's Australian assignment locations for the OSVEs are in eligible urban areas. Consequently, the benefit is not 'remote area holiday transport'. This means the paragraph 143C(1)(j) condition is satisfied.

(k) condition if the transport is for the spouse or a child of the employee

As in this case, the transport is for the employee, this condition is not applicable.

(m) the benefit is provided pursuant to the provisions of an industrial instrument or it is customary for employers in the industry to provide the benefit of the same kind

Australia Pty Ltd provided that it is customary for employers in the industry to provide the benefit of the same kind. This condition is considered satisfied.

Conclusion on the application of section 61A

Having regard to the conditions in section 143C, it is considered that the Home Leave Flights provided by Australia Pty Ltd to OSVEs between their assignment location in Australia and their overseas home location are Overseas Employment Holiday Transport. The benefits are eligible for a reduction of taxable value under section 61A of the FBTAA.

Question 7

If the answer to Question 6 is yes, does the 'otherwise deductible rule' in section 52 of the FBTAA apply to reduce the taxable value of the transport to nil?

Detailed reasoning

Where a residual benefit is provided, the otherwise deductible rule allows the gross taxable value of certain fringe benefits to be reduced by the amount of the notional once-only income tax deduction that the employees would otherwise have been entitled to. As discussed in Question 4, as the OSVEs are living away from their usual residence, the Home Leave Flight expenses are not considered to have been incurred in the course of gaining or producing their assessable income; they are of a private or domestic nature. Therefore, the employees would not be entitled to a deduction under section 8-1 of the ITAA 1997. As a result, the 'otherwise deductible rule' does not apply.

Question 8

Where travel expenditure, being the per diem allowance, the accommodation, the Return Flights and the Home Leave Flights incurred by an OSVEs is reimbursed, such that an expense payment benefit arises (rather than a residual benefit), would the FBT principles discussed at Questions 1-7 equally apply?

Summary

The principles would equally apply if the benefits were provided as expense payment benefits.

Detailed reasoning

The per diems

The per diems are to be provided to cover additional expenses that the employees might incur where the duties of their employment require them to live away from their normal residence while they are on assignment. Where the per diems were paid as an allowance, it was concluded in Question 1 that they were a LAFHA under section 30 of the FBTAA. One of the reasons for this was because the OSVEs' additional expenses are considered to be non-deductible expenses.

Where the per diems are provided as an expense payment benefit, no exemption would be available and an expense payment fringe benefit would arise. The taxable value of an expense payment benefit may be deductible under section 24 of the FBTAA. But as concluded above, the OSVEs' expenses would not be incurred in the course of gaining or producing their assessable income, and the expenditure is of a private or domestic nature because the OSVEs are living away from their usual residence. The expenses would therefore, not be deductible and the taxable value cannot be reduced.

The accommodation

Where the accommodation is provided as an expense payment benefit, the subsection 47(5) exemption is not applicable as this only applies to residual benefits.

Expenditure on accommodation provided to an employee who is required to live away from their normal residence in order to perform employment duties can be an exempt benefit under section 21. The conditions in section 21(d) include similar requirements to subsection 47(5). These include that the employee must satisfy section 31C and 31D, or section 31E of the FBTAA. These requirements relate to:

•                     maintaining a home in Australia and being required to live away from home that relates only to all or part of the first 12 months; or

•                     working on a fly-in fly-out or drive-in drive-out basis.

As discussed in Question 3, the employees do not satisfy the exemption requirements as in section 31C and 31D, or section 31E of the FBTAA. It is considered that an expense payment fringe benefit arises in respect of the accommodation.

The Return Flights

As noted in Question 5, an expense payment benefit which is in respect of 'relocation transport' can also be an exempt benefit under section 58F. The Return Flights benefits will be provided as a consequence of the employee having to relocate and are therefore, section 143A relocation transport benefits.

Having regard to the requirements in sections 143A and 58F of the FBTAA, it is considered that the Return Flights provided by Australia Pty Ltd to OSVEs between their assignment location in Australia and their overseas home location are in respect of 'relocation transport' and are therefore, exempt benefits under section 58F. As such they are excluded from being a fringe benefit.

It is assumed that the necessary evidence as specified under paragraph 58F(c)(ii) is provided to the employer before the FBT return for the year must be lodged.

The Home Leave Flights

As noted in Question 6, an expense payment benefit which is in respect of 'relocation transport' can also be an exempt benefit under section 58F. The Home Leave Flights are not provided as a consequence of the employee having to relocate and therefore, they are not section 143A relocation transport benefits. Accordingly, they cannot be exempt benefits under section 58F of the FBTAA, and an expense payment fringe benefit arises.

Transport, accommodation or meals provided to an overseas employee and family members in connection with having a holiday of not less than three days can be subject to a reduction in taxable value under section 61A of the FBTAA. As discussed in Question 6, the section 61A reduction requires that the Home Leave Flights are section 143 Overseas Employment Holiday Transport.

Having regard to the conditions in section 143C, it is considered that the Home Leave Flights provided by Australia Pty Ltd to OSVEs between their assignment location in Australia and their overseas home location are Overseas Employment Holiday Transport. If provided as expense benefits the flights would continue to be eligible for the reduction of taxable value under section 61A of the FBTAA.

It is noted that subsection 61A(2) provides some specific requirements in regard to declarations and documentary evidence, where the benefits are provided as expense payment benefits. It is assumed that these conditions will be satisfied.

Does the 'otherwise deductible rule' in section 24 of the FBTAA apply to reduce the taxable value of the transport to nil?

Question 7 above considers the application of the otherwise deductible rule in section 52 in respect of the transport being provided as a residual benefit. Where the benefit is provided as an expense payment benefit the relevant section to consider is section 24.

The section 24 requirements include that the employee is entitled to a once-only deduction. As explained above, the 'otherwise deductible rule' operates to reduce the taxable value of a fringe benefit where the employee would have been entitled to a once-only deduction under section 8-1 of the ITAA 1997 (or where a specific provision of the tax laws applies to provide the deduction) for the expense, had the employee personally incurred and paid the unreimbursed expense.

The Home Leave Flights are not considered to be incurred in the course of gaining or producing their assessable income as they are of a private or domestic nature. Therefore, the employees would not be entitled to a deduction under section 8-1 of the ITAA 1997. As a result, the 'otherwise deductible rule' in section 24 of the FBTAA does not apply.

[1] J & G Knowles & Associates v. Federal Commissioner of Taxation [2000] FCA 196, [26].

[2] Paragraph 16 TR 2021/4.

[3] Paragraph 25 TR2021/4.

[4] Paragraph 25 TR 2021/1 Income tax: when are deductions allowed for employees' transport expenses.

[5] Paragraph 26 Ibid.

[6] Paragraph 13 Practical Compliance Guideline PCG 2021/3 Determining if allowances or benefits provided to an employee relate to travelling on work or living at a location - ATO compliance approach.

[7] Fringe benefits tax: a guide for employers Chapter 11.

[8] John Holland Group Pty Ltd v Commissioner of Taxation [2015] FCAFC 82 (John Holland) at [45], per Edmonds J.

[9] TR 2021/1 [12].

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