Edited version of your private ruling

Authorisation Number: 1012000739246

This edited version of your ruling will be published in the public register of private binding rulings after 28 days from the issue date of the ruling. The attached private rulings fact sheet has more information.

Please check this edited version to be sure that there are no details remaining that you think may allow you to be identified. If you have any concerns about this ruling you wish to discuss, you will find our contact details in the fact sheet.

Ruling

Subject: Fringe benefits tax - reimbursement of expenses

Question 1

In the event that the employer reimburses 100% of the employee's airfare, does an expense payment fringe benefit arise under section 20 of the Fringe Benefit Tax Assessment Act 1986 (FBTAA) for the employer?

Answer

Yes.

Question 2

In the event that the employer reimburses 50% of the employee's airfare, does an expense payment fringe benefit arise under section 20 of the FBTAA for the employer?

Answer

Yes.

Question 3

Can the employer use the otherwise deductible rule under section 24 of the FBTAA to reduce the taxable value of the expense payment benefit provided to the employee, being the payment and reimbursement of overseas travel expenses to nil?

Answer

Yes.

This ruling applies for the following periods:

1 April 2012 to 31 March 2013

The scheme commences on:

1 April 2012

Relevant facts and circumstances

1. The employee is required to attend overseas conferences and present their research at the conferences.

2. The employee has decided to attend two conferences which they attend on an annual basis. Both conferences are the most relevant to the employee as they are both directly related to their current research.

3. The employee wishes to take annual leave between the two conferences as it will not be fitting to travel overseas twice in the space of two weeks. The annual leave is only being taken to fill in time between the conferences, otherwise the employee would not be taking holidays overseas.

4. The employer will be reimbursing the employee the following expenses:

· Return overseas airfares

· Accommodation for both the conferences

· Meal and incidental costs for both the conferences.

5. In accordance with the employer policy, a travel diary will be completed and submitted by the employee as per section 24 of the FBTAA to utilise the 'otherwise deductible rule'.

Relevant legislative provisions

Fringe Benefits Tax Assessment Act 1986 subsection 136(1).
Fringe Benefits Tax Assessment Act 1986 section 20.
Fringe Benefits Tax Assessment Act 1986 section 23.
Fringe Benefits Tax Assessment Act 1986 section 24.
Income Tax Assessment Act 1997 section 8-1.

Rulings and Determinations

Taxation Ruling TR 95/33. (ATO View)
Taxation Ruling TR 98/9. (ATO View)

Other References

Fringe benefits tax: a guide for employers (ATO View)

Relevant Cases

Ronpibon Tin v Federal Commissioner of Taxation (1949) 78 CLR 47.
No 3 Board of Review Case R13 84 ATC 168.
Ure v Federal Commissioner of Taxation 81 ATC 4100

Reasons for decision

Question 1: In the event that the employer reimburses 100% of the employee's airfare, does an expense payment fringe benefit arise under section 20 of the FBTAA for the employer?

Question 2: In the event that the employer reimburses 50% of the employee's airfare, does an expense payment fringe benefit arise under section 20 of the FBTAA for the employer?

Summary

A 'fringe benefit' will arise from the return flight from overseas as it is a 'benefit' provided to an employee by the employer by reason of the employee's employment that does not come within paragraphs (f) to (s) of the 'fringe benefit' definition.

Where an employer reimburses an employee in relation to expenses in respect of the employees' employment that has both business and private purposes, then there is a fringe benefit provided to the employee and it will give rise to a expense payment under section 20 of the FBTAA.

Detailed reasoning

The employer will be providing the employee with overseas travel to attend two work related conferences. The employer will be reimbursing the cost of the airfares to the employee. The employer will also reimburse for the accommodation for the days while attending both the conferences.

In general terms, the definition of 'fringe benefit' in subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA) provides that a fringe benefit will arise from the flights if the following conditions are satisfied:

· the flight is a 'benefit';

· the 'benefit' is provided to an employee or an associate of an employee;

· the 'benefit' is provided by the employer, an associate of the employer or a third party under an arrangement involving the employer or an associate;

· the 'benefit' is provided in respect of the employment of the employee; and

· the 'benefit' is not one of the benefits specifically excluded from being a 'fringe benefit' by paragraphs (f) to (s) of the 'fringe benefit' definition.

(i)`Is the flight a 'benefit'?

"Benefit' is defined in subsection 136(1) of the FBTAA to include:

any right (including a right in relation to, and an interest in, real or personal property), privilege, service or facility

As the provision of transport in an aircraft comes within this definition each of the flights will be a benefit.

(i) Is the 'benefit' provided to an employee or an associate of an employee?

Each of the flights will be provided to an employee.

(ii) Is the 'benefit' provided by the employer, an associate of the employer or a third party under an arrangement involving the employer or an associate?

The flights will be provided by the employer.

(iii) Is the 'benefit' provided in respect of the employment of the employee?

'In respect of' is defined in subsection 136(1) of the FBTAA to include:

by reason of, by virtue of, or for or in relation directly or indirectly to, that employment

In considering the reason for the overseas travel being provided it is relevant to note that it is not provided to any person. Rather it is provided to an employee that is related to their work. In this case, the employee's primary purpose for travelling overseas is to attend two work related conferences. This provides the necessary connection to the employment of the employee as they are receiving the benefit because they are an employee.

(iv) Is the 'benefit' specifically excluded from being a 'fringe benefit' by paragraphs (f) to (s) of the 'fringe benefit' definition?

Paragraphs (f) to (s) of the 'fringe benefit' definition do not apply to the flights.

Expense payment benefit

Section 20 of the FBTAA provides that an expense payment benefit will arise in two ways:

· where the provider (in this case the employer) reimburses the (recipient) in this case the employee) for expenses they incur, or

· where the provider (in this case the employer) pays a third party in satisfaction of expenses incurred by the recipient (in this case the employee).

As the employer proposes to reimburse the employee for the cost of their overseas travel, an expense payment benefit will arise. Therefore the benefit will be an expense payment fringe benefit.

Taxable value of expense payment fringe benefits

The taxable value of an expense payment fringe benefit is determined under Section 23 of the FBTAA which states as follows:

Subject to this Part, the taxable value in relation to a year of tax of an external expense payment fringe benefit provided during the year of tax is the amount of the payment referred to in paragraph 20(a), or the reimbursement referred to in paragraph 20(b), as the cases requires, reduced, in a case to which paragraph 20(a) applies, by the amount of the recipients contribution.

In simple terms, the taxable value of an expense payment fringe benefit is either the amount of payment made by the employer on behalf of the employee for an employee obligation or an amount of reimbursement paid by the employer to the employee for an obligation the employee has paid or incurred.

In this case, the employer has stated that the expense payment fringe benefit relates to reimbursements of overseas travel. Therefore the reimbursement of the employee's travel expenses gives rise to an external expense payment fringe benefit as set out in section 23 of the FBTAA.

Question 3: Can the employer use the otherwise deductible rule under section 24 of the FBTAA to reduce the taxable value of the expense payment benefit provided to the employee, being the payment and reimbursement of overseas travel expenses to nil?

Summary

The application of the 'otherwise deductible rule' in section 24 of the FBTAA will only apply to the extent that the expenditure would have been income tax deductible, therefore the taxable value of the expense payment fringe benefit will be reduced to nil.

Otherwise deductible rule

The taxable value of an expense payment fringe benefit may be reduced in accordance with the otherwise deductible rule (ODR) under section 24 of the FBTAA.

Subsection 24(1) of the FBTAA permits a reduction of the taxable value of an expense payment fringe benefit under the otherwise deductible rule where all the necessary conditions of that section are met.

Broadly, this means that the taxable value may be reduced by any amount an employee would hypothetically been entitled to claim as an income tax deduction if the employer had not paid a third party or reimbursed the employee in satisfaction of an expense incurred by the employee.

However, the ODR only applies where the employee would have been entitled to a once-only deduction for the expenditure paid or reimbursed by the employer. A once-only deduction is defined, in subsection 136(1) of the FBTAA, to mean one that is wholly or partly allowable under the income tax law in only one year (for example, this would exclude deductions for depreciation expenses).

The question of whether or not the employer would have been entitled to an income deduction for the expense is irrelevant.

For an employer to reduce the taxable value of a fringe benefit under the otherwise deductible rule an employee would have had to incur the expense solely relating to the performance of their employment related duties and that expense would have to be wholly deductible to that employee for income tax purposes.

The employee must substantiate to the employer each year prior to lodgement of the relevant FBT return, the extent to which the expense payment fringe benefit would have been otherwise deductible to the employee. This can be supplied as a declaration in the approved form by the Commissioner. Based on the information provided the employee will be providing a declaration to you as the employer, therefore, this condition will be met.

Deductibility of expenses

Section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997) allows a deduction for a loss or outgoing incurred in gaining or producing assessable income.

However, no deduction is allowed for losses or outgoings to the extent to which they are of a capital, private or domestic nature or are incurred in gaining or producing exempt income, or are otherwise prevented from being deductible by a specific provision of ITAA 1997.

For any deduction to be allowable under section 8-1 of the ITAA 1997 you must be able to demonstrate that there is a real and direct connection between the outgoing and the gaining of your assessable income, so that the outgoing is incidental and relevant to the actual activities that gain assessable income.

The extent to which overseas travel expenses would be allowable income tax deduction if incurred by an employee is determined under the general deduction provisions in section 8-1 of the Income Tax Assessment Act 1997 (ITAA 1997). An expense is deductible under section 8-1 of the ITAA 1997 when the essential character is that of an income producing expense. The essential character is to be determined by an objective analysis of all the surrounding circumstances (see Fletcher & Ors (199) 173 CLR 1 at 17; 91 ATAC 4950 at 4957 and 4958; (1991) 22 ATR 613 at 622).

As stated in Taxation Ruling TR 95/33 Income tax: subsection 51(1) - relevance of subjective purpose, motive or intention in determining the deductibility of losses and outgoings, expenditure will generally be deductible if its essential character is that of expenditure that has a sufficient connection with the operations or activities which more directly gain or produce the taxpayers' assessable income. The essential character of an expense is a question of fact to be determined by reference to all the circumstances. Apportionment of an expense is required if it has both an income producing purpose and another purpose.

In this case, the overseas travelling expenses incurred by the employee to attend two conferences are in respect of her employment with UOM and are incurred in gaining or producing assessable income and, therefore, are allowable income tax deductions under section 8-1 of the ITAA 1997.

Self-education expenses

The Commissioners view on the deductibility of self-education expenses is contained in Taxation Ruling TR 98/9 (TR 98/9). TR 98/9 examines the deductibility of self-education expenses.

Where your income-earning activities are based on the exercise of a skill or some specific knowledge and the subject of self-education enables you to maintain or improve that skill or knowledge, the self-education expenses are allowable as a deduction.

In accordance with TR 98/9, expenses of self-education will satisfy the requirements of section 8-1 of the ITAA 1997 if:

12. Self-education expenses are deduction under section8-1 where they have relevant connection to the taxpayer's current income-earning activities.

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

14. If the study of a subject of self-education objectively leads to, or is likely to lead to, an increase in a taxpayer's income from his or her current income-earning activities in the future, the self-education expenses are allowable as a deduction.

The airfares for the return trip from the overseas business location will also be work related expenditure. However, where the trip has a private purpose, consideration has to be given to whether an apportionment of the airfare between business and private purposes will be warranted.

TR 98/9 sets out the circumstances in which self education expenses are allowable deductions. Paragraphs 63 to 70 of TR 98/9 discuss the application of the general deduction provision to overseas travel expenses.

TR 98/9 states that if the purpose of a study tour or attendance at a work related conference or seminar is the gaining or producing of assessable income, the existence of an incidental private purpose does not affect the characterisation of the expenses as wholly incurred in gaining assessable income.

TR 98/9 provides examples indicating that where overseas travel is undertaken voluntarily and is planned to be for business and private purposes equally, expenses of a single outlay that serve both purposes should be apportioned. The examples in paragraphs 67 to 70 of TR 98/9 are listed below:

67. Example: Glenn, a qualified architect, attends an eight-day work-related conference in Hawaii on trends in modern architecture. One day of the conference involves a sight-seeing tour of the island and a game of golf is held on the final afternoon of the conference. As the main purpose of attending the conference is the gaining or producing of income, the total cost of the conference (air fares, accommodation and meals) is allowable.

68. The existence of private pursuits, such as the island tour and the game of golf, is purely incidental to the main purpose and does not affect the characterisation of the conference expenses as wholly incurred in gaining assessable income.

69. Example: Jenny, a doctor, was holidaying in Cairns when she became aware of a work-related seminar on the current treatment of cancer patients. The cost of the half-day seminar was $200. Jenny is able to claim a deduction for the cost of the seminar because it is directly attributable to an income-earning purpose. However, no part of her air fare to Cairns or her holiday accommodation is an allowable deduction.

70. Example: Francesco, a paediatrician, has 2 equal purposes when he decides to attend a five-day international conference on paediatrics in Singapore to be followed by a seven-day holiday in Thailand. The conference package is $2,500 ($1,000 return air fare, $500 for the cost of the conference and $1,000 for accommodation and meals at the conference venue). Francesco paid another $2,000 for accommodation, meals and car hire for the 7 day holiday in Thailand. Francesco is allowed a deduction of $1,500 for the conference cost and the accommodation and meals expenses at the conference. Only half of the return air fare ($500) is allowed as the expense was incurred for two equal purposes, one income-earning and the other private. The other expenditure of $2,000 relating to the holiday in Thailand is private in nature and not allowable as a deduction.

In this case, the employee is undertaking a work related overseas travel to attend two conferences. Therefore the expenses are deductible under section 8-1 of the ITAA 1997.
The employer would be able to reduce the taxable value of the expense payment fringe benefit under the otherwise deductible rule, as the employee would be entitled to claim a deduction if they had incurred the expenses themself.

Apportionment of business and private

The airfares for the return trip from the overseas business location is work related expenditure. However, where the trip has a private purpose, consideration has to be given to whether an apportionment of the airfare between business and private purposes will be warranted.

In cases where the airfare relates to both work related and private purposes, an apportionment of the expense is required. TR 98/9 discusses the apportionment of travel expenses.

In TR 98/9 paragraph 64 states that 'If the purpose of a study tour or attendance at a work-related conference or seminar is the gaining or producing of income, the existence of an incidental private purpose does not affect the characterisation of the related expenses as wholly incurred in gaining assessable income'. 

TR 98/9 at paragraph 65 further states that if travel to a work-related conference was mainly devoted to a private purpose, such as having a holiday, and the gaining or producing of income was merely incidental to the private purpose, only those expenses directly attributable to the income-earning purpose would be allowable.

In Federal Court Case Ronpibon Tin v FC of T (1949) 78 CLR 47; 4 AITR 236 the Court expressed the view that there are generally two kinds of items of expenditure that require apportionment: those items that are capable of dissection; and those that cannot be dissected but should be apportioned on the basis that they serve more than one objective. The latter would clearly apply to an airfare purchased for both work and private purposes.

The question of apportionment was discussed in Case R13 84 ATC 168; 27 CTBR (NS) Case 64 (Case R13). In that case, a dentist spent six weeks overseas, five days of which were spent at a Dental Congress in Paris and the rest of the time was spent sightseeing. The trip was undertaken by the taxpayer with two objects in mind - attending the Dental Congress and having a holiday. The airfare served both objects, however only the first object qualified the expense as deduction.  The Commissioner apportioned the expenditure on the airfares on a time basis and allowed the taxpayer a deduction of 5/40ths of the air fare which represented the five days spent at the Congress. However, the Administrative Appeals Tribunal held that the proper method of apportioning the expense was to determine the degree of predominance attached to each object. In this case, each object was of equal weight and therefore, one-half of the airfare was allowed as a deduction.

In this case, the employee will be attending two work related conferences overseas. The employee will be taking annual leave between the two conferences to fill in the time, otherwise the employee would not be taking holidays.

The employer will reimburse the employee for the cost of the return airfare and the accommodation for the days while attending both the conferences.

The employee is responsible for their own accommodation while taking annual leave between the two conferences.

You have stated that employee's primary purpose for travelling overseas is to attend two work related conferences. The annual leave to be taken between the two conferences is to fill in the time between the conferences as it will not be fitting to travel overseas twice in the short space of time.
Where the private days are equal to or more than the period of conference we need to consider the factors in No 3 Board of Review Case R13 84 ATC 168 and Ure v Federal Commissioner of Taxation 81 ATC 4100 (Ure).

In No 3 Board of Review Case R13 84 ATC 168 the board of review looked at the purpose of an overseas trip to determine the apportionment of air fares. In his reasons for the decision Dr Gerber applied Ure and stated at page 170 'It is now clear beyond doubt that whether or not an outgoing has been incurred in gaining or producing assessable income demands an examination of the purpose for which the moneys were expended'. The board considered that the taxpayers motivation for travelling overseas was to attend the conference and to take a holiday. Consequently they apportioned the air-fare on the basis of one-half business and one-half private.

Conclusion

From the facts provided the employee's purpose of the trip to attend the two work-related conferences overseas is considered to be business related. The employee's request to take annual leave between the conferences is in order for the employer to save funds on the extra airfare. The primary purpose is for the employee to attend the two conferences and the fact that the employee is having holidays between conferences is incidental to the reasons for the trip. The employee is responsible for all meal and accommodation expenses while on annual leave between the conferences.

The overseas travel expense incurred would be fully deductible under section 8-1 of the ITAA 1997. However, where an expense is reimbursed, no deduction is allowable.

Therefore the taxable value of the expense payment fringe benefit will be cost of the airfares and would be reduced to nil under the 'otherwise deductible rule'.

Expenditure incurred by employees for accommodation, meals and incidental expenses relating to the overseas travel which is either paid or reimbursed by the employer or provided as a service will be similar to the overseas airfares. Therefore, where the expenses for accommodation, meals and incidental expenses is part of the business travel, then the expenses would be allowed in full under section 8-1 of the ITAA 1997 which will in turn allow for the reduction available under section 24 of the FBTAA to reduce the benefit to nil.

The accommodation, meals and incidental expenses for when the employee has a holiday between the business travel is at the employee's own expense, therefore no fringe benefit has been provided or is applicable.

The application of the 'otherwise deductible rule' in section 24 of the FBTAA will only apply to the extent that the expenditure would have been income tax deductible, therefore the taxable value of the expense payment fringe benefit will be reduced to nil.