Edited version of private ruling

Authorisation Number: 1011676222060

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Ruling

Subject: Fringe benefits tax - exempt accommodation benefits

Question

Is the accommodation provided to each of the employees included in this application an exempt accommodation benefit under subsection 47(5) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA)?

Answer: Some of the employees are receiving exempt accommodation benefits under subsection 47(5) of the FBTAA.

This ruling applies for the following period

1 April 2009 to 31 March 2012

The scheme commenced on

1 April 2009

Relevant facts

The employer employs a range of staff whose role depends on their ability to reside on site in order to perform their duties. The employer provides accommodation on site for some staff to perform their duties of employment.

The employer has provided information relevant to each employee and requested that the Commissioner rule on the question of whether, in respect of each employee, the accommodation provided to the employee is an exempt accommodation benefit under subsection 47(5) of the FBTAA.

For the purposes of this ruling the following facts apply to each person included in the application:

· the person is an employee of the employer;

· the employee is provided with a place of residence on the employer's premises;

· the employer requires that the employee relocate and reside at the place of residence that is provided on the employer's premises in order to perform their duties of employment;

· the accommodation is not provided while the employee is undertaking travel in the course of performing duties of employment;

· the accommodation is provided to the employee in respect of his or her employment;

· the accommodation is for the accommodation of eligible family members as the term is defined in subsection 136(1) of the FBTAA;

· the accommodation is not provided by way of a salary sacrifice arrangement; and

· the employee will give to the employer a declaration in a manner set out in subparagraph 47(5)(d)(i) of the FBTAA.

Relevant legislative provisions

Fringe Benefits Tax Assessment Act 1986 section 45

Fringe Benefits Tax Assessment Act 1986 subsection 47(5)

Fringe Benefits Tax Assessment Act 1986 subsection 136(1)

Reasons for Decision

Taking into account MT 2030 and the various court and tribunal cases over the years, an employee's usual place of residence is determined by considering various factors and applying appropriate weightings to those factors, these factors include:

(a) the nature of the employee's employment and whether the move to another place was a temporary or permanent move;

(b) the employee's place of residence (the former place of residence) before he or she obtained another place of residence (the temporary residence);

(c) the employee's continuing connection/ties with the former place of residence, in particular:-

(i) whether the employee maintained/retained the former place of residence during the period the employee resided at the temporary residence;

(ii) whether or not the former place of residence was a place to which the employee could return at will if he or she so wished;

(iii) whether the employee's family continued to live in the former place of residence during the employee's temporary absence; and

(iv) the frequency of the employee's visits to the former place of residence and use of this residence as a place of residence;

(d) whether the employee intends or expects to return to live at the former place of residence on cessation of work at the temporary locality; and

(e) any unique or special circumstances.

We have ruled that some of the employees are receiving exempt accommodation benefits under subsection 47(5) of the FBTAA. The 5 requirements for exemption under subsection 47(5) of the FBTAA are satisfied in respect of the accommodation provided to each of these employees, namely:

1. the unit of accommodation is provided solely by reason that the employee is required to live away from his or her usual place of residence in order to perform the duties of that employment; and

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

3. the unit of accommodation is for the accommodation of eligible family members as the term is defined in subsection 136(1) of the FBTAA; and

4. the accommodation is not provided while the employee is undertaking travel in the course of performing the duties of that employment; and

5. the employee gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, purporting to set out:

(A) the employee's usual place of residence; and

(B) the place at which the employee actually resided while living away from his or her usual place of residence.