Edited version of your private ruling

Authorisation Number: 1012511522728

Ruling

Subject: Living-away-from-home allowance

Question 1

Is the payment for the removal and transport of the employee's household effects to Australia an exempt benefit under section 58B of the Fringe Benefits Tax Assessment Act 1986 (FBTAA)?

Answer

Yes

Question 2

Will the temporary accommodation provided to the employee be an exempt benefit?

Answer

No

Question 3

Will the initial flights to Australia for the employee and their family be an exempt benefit under section 58F of the FBTAA?

Answer

Yes

Question 4

Can the taxable value of the living-away-from-home allowance paid to the employee be reduced by the exempt accommodation component?

Answer

No

Question 5

Is the motor vehicle allowance paid to the employee subject to the Pay As You Go (PAYG) withholding system?

Answer

Yes

Question 6

Is the annual flight to their homeland eligible for concessional treatment under section 61A of the FBTAA?

Answer

Yes

This ruling applies for the following periods:

Year ended 31 March 2014

Year ended 31 March 2015

Year ended 31 March 2016

Year ended 31 March 2017

The scheme commences on:

The scheme has commenced.

Relevant facts and circumstances

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

The employee is from overseas (the Employee).

The Employee has been appointed a Managing Director of the Company and has been granted an Australian Temporary Work 457 Visa for a period not exceeding 4 years.

The employment commencement date was dd/mm/yyyy.

The following benefits were provided to the employee:

Relevant legislative provisions

Fringe Benefits Tax Assessment Act 1986 Section 31

Fringe Benefits Tax Assessment Act 1986 Section 31B

Fringe Benefits Tax Assessment Act 1986 Section 31C

Fringe Benefits Tax Assessment Act 1986 Section 31D

Fringe Benefits Tax Assessment Act 1986 Section 58B

Fringe Benefits Tax Assessment Act 1986 Section 58F

Fringe Benefits Tax Assessment Act 1986 Section 61A

Fringe Benefits Tax Assessment Act 1986 Section 61C

Fringe Benefits Tax Assessment Act 1986 Sub-section136(1)

Fringe Benefits Tax Assessment Act 1986 Section 143A

Fringe Benefits Tax Assessment Act 1986 Section 143C

Reasons for decision

Question 1

Is the payment for the removal and transport of the employee's household effects to Australia an exempt benefit under section 58B of the Fringe Benefits Tax Assessment Act 1986 (FBTAA)?

Section 58B of the FBTAA, deals with the treatment of removal and storage of household effects, as a result of an employee's relocation.

This section exempts from fringe benefits tax, benefits arising in relation to removal and storage costs incurred by the employee, who moves from one locality to another in the course of employment or in order to commence employment.

Subsection 58B(1) of the FBTAA states:

58B(1)  [Conditions for exemption]

Where:

(a) either of the following benefits is provided in, or in respect of, a year of tax in respect of the employment of an employee:

(i) an expense payment benefit where the recipients expenditure is in respect of the removal or storage of household effects of the employee;

(ii) a residual benefit where the recipients benefit consists of the removal or storage of household effects of the employee;

(b) the removal or storage 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 her 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;

(c) the removal or storage is required to enable a family member to:

(i) if subparagraph (b)(i) applies - take up residence, or to continue to reside, at or near the place where the employee performs the duties of that employment while living away from his or her usual place of residence;

(ii) if subparagraph (b)(ii) applies - take up residence at the employee's usual place of residence; or

(iii) if subparagraph (b)(iii) applies - take up residence, or to continue to reside, at the employee's new usual place of residence;

(d) if subparagraph (b)(iii) applies:

(i) the removal takes place, or the storage commences to be provided, within 12 months after the day on which the employee commenced to perform the duties of that employment at the employee's new place of employment; and

(ii) the benefit is not provided under a non-arm's length arrangement;

(e) if subparagraph (a)(i) applies - documentary evidence of the recipients expenditure is obtained by the recipient and that documentary evidence, or a copy, is given to the employer before the declaration date; and

(f) the removal or storage was not provided in connection with travel undertaken by the employee in the course of performing the duties of that employment;

the benefit is an exempt benefit in relation to the year of tax.

In considering these requirements:

· the requirements in paragraph (a) will be met as the benefit consists of the removal of the employee's household effects;

· the requirements in paragraph (b) will be met as the employee is required to live away from the usual place of residence (which as discussed in question two is overseas) so as to perform the duties of employment in Australia;

· the requirements in paragraph (c) are met as the removal is required to enable the employee and family members to take up residence in Australia where the employee will be performing the duties of employment;

· paragraph (d) is not applicable;

· paragraph (e) is not applicable; and

· the requirement is paragraph (f) is met as the removal was provided to enable the employee to relocate to Australia for a four year period. It was not provided in connection with travel undertaken by the employee.

Therefore, as all of the requirements are met, the payment for the removal and transport of the employee's household effects will be an exempt benefit under section 58B of the FBTAA.

Question 2

Will the temporary accommodation provided to the employee be an exempt benefit?

When the employee initially came to Australia you provided the employee with fully furnished accommodation until the employee was able to rent accommodation.

In your ruling application, you asked whether the provision of this accommodation is exempt under section 61C of the FBTAA.

Subsection 61C of the FBTAA states:

61C(1)  [Conditions for application of reduction]

Where:

(a) any of the following fringe benefits is provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer:

(i) an expense payment fringe benefit where the recipients expenditure is in respect of:

(A) a lease or licence in respect of a unit of accommodation occupied or used for the temporary accommodation of family members; or

(B) a lease or licence in respect of goods primarily for domestic use by family members, being domestic use in connection with a unit of accommodation occupied or used for the temporary accommodation of family members;

(ii) a housing fringe benefit where the housing right is in respect of a unit of accommodation occupied or used for the temporary accommodation of family members;

(iii) a residual fringe benefit where the recipients benefit:

(A) is constituted by the subsistence of a lease or licence in respect of a unit of accommodation occupied or used for the temporary accommodation of family members; or

(B) is constituted by the subsistence of a lease or licence in respect of goods primarily for domestic use by family members, being domestic use in connection with a unit of accommodation occupied or used for the temporary accommodation of family members;

(b) the temporary accommodation is required solely because the employee is required to change his or her usual place of residence in order to perform the duties of that employment;

(c) if the unit of accommodation is located at or near the employee's former usual place of residence - the temporary accommodation was required because the unit of accommodation that was the employee's former usual place of residence became unavailable, or unsuitable, for residential use by family members due to removal, storage or other arrangements relating to the change in the usual place of residence of the employee;

(d) if the unit of accommodation is located at or near the employee's new place of employment - the employee, or an associate of the employee, either before, on, or as soon as reasonably practicable after, the day (in this section called the "relocation day") on which the employee commenced to perform the duties of that employment at the employee's new place of employment, commenced sustained reasonable efforts to acquire, or to acquire the right to occupy or use, a unit of accommodation intended by the employee or associate, as the case may be, to provide a long-term place of residence for the employee; and

(e) the fringe benefit is not provided under a non-arm's length arrangement;

the following provisions have effect.

In considering these requirements, paragraph (b) requires the temporary accommodation to be required solely because the employee is required to change his or her usual place of residence in order to perform the duties of employment.

The FBTAA does not define 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 on a shared basis.

In the absence of a legislative reference it is relevant to refer to the ordinary meaning of 'usual'. The Macquarie Dictionary defines 'usual' to mean:

1. habitual or customary: his usual skill.

2. such as is commonly met with or observed in experience; ordinary: the usual January weather.

3. in common use; common: say the usual things.

noun

4. that which is usual or habitual.

phrase

5. as usual, as is (or was) usual; in the customary or ordinary manner: he will come as usual.

Guidelines for determining an employee's usual place of residence are provided by Miscellaneous Taxation Ruling MT 2030 Fringe benefits tax: living-away-from-home allowance benefits (MT 2030).

Paragraphs 11 and 12 of MT 2030 state:

11….."Place of residence" is defined in section 136. It means, in relation to a person, a place at which the person resides or a place at which the person has sleeping accommodation, whether on a permanent or temporary basis and whether or not on a shared basis.

12. A place of residence of a person is thus the place where he or she resides or has some sleeping accommodation. The customary meaning of the word "reside" is to dwell permanently or for a considerable time, or have one's abode for a time. In turn "residence' means the place, especially the house, in which one resides; a dwelling place; a dwelling.

Paragraphs 15 to 18 refer to various decision of Taxation Boards of Review relating to the former 51A of the Income Tax Assessment Act 1936 (ITAA 1936). In referring to these decisions paragraph 14 of MT 2030 states:

14. As the decisions illustrate, the question whether an employee is living away from his or her usual place of residence normally involves a choice between two places of residence, i.e., the place where the employee is living at the time or some other place. A person is regarded as living away from a usual place of residence if, but for having to change residence in order to work temporarily for his employer at another locality, the employee would have continued to live at the former place. It would be relevant in reaching that view that there is an intention or expectation of the employee returning to live at the former place of residence on cessation of work at the temporary job locality. This would be relevant even if the employee is living in temporary quarters close to a temporary job site.

Further discussion occurs at paragraphs 19 to 25. Paragraph 20 provides the following general rule:

Employees who move to a new locality to take up a position of limited duration with an intention to return to the old locality at the end of the appointment would generally be treated as living away from their usual place of residence. For example, a construction worker having to travel to a construction site to live and work would be in this category unless he had abandoned the former place of residence upon moving to the locality of the site. A case of the latter situation would be where the employee decided to permanently leave the former home, e.g., if a resident of Sydney, on obtaining a job for two years on a construction site in a remote part of Western Australia, decided to "sell up" in Sydney and move permanently to Western Australia to live.

As an example of the application of this general rule paragraph 22 states:

Examples of employees on appointments of finite duration who will generally be living away from their usual place of residence are foreign nationals employed in Australia on a temporary basis and Australian residents (e.g., export consultants, diplomats, immigration officials, etc.) stationed in a foreign country for a time. Provided the appointment is for a limited period and the employee can be expected in the normal course to return to the same city or district of the home country to live, the employee may be treated as living away from his or her usual place of residence.

These principles and the various cases that have considered usual place of abode or usual place of residence were discussed by the Administrative Appeals Tribunal in Compass Group (Vic) Pty Ltd (as trustee for White Roche & Associates Hybrid Trust) v FC of T [2008] AATA 845; 2008 ATC 10-051. At paragraphs 55 and 56 Deputy President S A Forgie said:

55. There are several principles that can be gleaned from these cases. The first is that the fact that s 30 and, before it, s 51A, are concerned with what is described as a living-away-from-home allowance. That allowance is paid by an employer to an employee in respect of the employee's employment. It is a payment in the nature of compensation. The compensation is to meet additional expenses the employee incurs during a particular period and for other additional disadvantages he or she faces in that period but only if the expenses are incurred because he or she is required to live away from his or her usual place of residence in order to perform the duties of employment. As Mr Cotes alluded to in CaseB47, it necessarily assumes that the taxpayer has two places that could be described as his or her place of residence before one or the other needs to be identified as the "usual place of residence".

56. Putting to one side the case of Case 50, all cases looked to the taxpayer's place of residence before he or she acquired another place of residence. Each looked to the taxpayer's continuing connection with the first place of residence including matters such as whether his or her family continued to live there, the frequency of the taxpayer's visits there and whether or not that was a place to which the taxpayer could return at will if he or she so wished. Also relevant was the nature of the employment and whether the move to another place was a temporary or permanent move.

In considering the general rules set out in MT 2030 and the factors discussed by the AAT:

· the employee is from overseas who has a residence in their homeland;

· the employee is in Australia on a 457 Visa which limits the period in which the employee can remain in Australia to a four year period;

· the employee returns to their homeland residence each year; and

· you will provide a return flight to their homeland at the conclusion of the employment in Australia.

These factors indicate the employee has an intention to return to their homeland at the conclusion of the four year period. Therefore, on the basis of paragraph 22 of MT 2030 the residence in their homeland is considered to be the usual place of residence.

Therefore, as the usual place of residence has not changed, the requirement in paragraph 61C(1)(b) is not met and the concession provided by section 61C will not apply to the accommodation provided to the employee in April and May 2013.

Although the concession provided by section 61C of the FBTAA cannot apply as the usual place of residence has not changed, there is an alternative exemption that may apply where an employer provides accommodation to an employee who is required to live away from their usual place of residence to perform the duties of employment.

This exemption is contained within subsection 47(5) of the FBTAA which states:

the benefit is an exempt benefit in relation to the year of tax.

In considering these requirements, the requirements of paragraphs (a) and (b) are met as the benefit is a residual benefit that consists of the provision of accommodation to an employee who is required to live away from his or her normal residence to perform the duties of employment.

Paragraph 47(5)(ba) of the FBTAA requires the employee to satisfy sections 31C and 31D of the FBTAA or section 31E of the FBTAA.

In general terms, section 31C of the FBTAA requires the employee to be living away from the place in Australia where he or she usually resides when in Australia. In addition, the employee or spouse must have an ownership interest in the unit of accommodation and the accommodation must be available for the employee's immediate use and enjoyment during the period the duties of employment require the employee to live away from it.

Section 31D of the FBTAA limits the exemption to a 12 month period the employee is required to live at a particular location.

Section 31E sets out the circumstances in which an employee will be considered to be a fly-in fly-out and drive-in drive-out employee. Where the employee is a fly-in fly-out and drive-in drive-out employee, it is not necessary for the requirements of sections 31C and 31D to be met.

In general terms, an employee will be a fly-in fly-out and drive-in drive-out employee if he or she works for a number of days and has a number of days off (but not the same days in consecutive weeks) and on completion of the working days travels from the usual place of employment to his or her normal residence and on completion of the days off, returns to the usual place of employment. As these requirements are not met, the application of subsection 47(5) will require the requirements of sections 31C and 31D to be met unless the arrangement comes within the transitional provisions contained in items 27 and 28 of the Tax Laws Amendment (2012 Measures No. 4) Act 2012.

In general terms, the transitional rules delayed the introduction of sections 31C and 31D where the accommodation was being provided under an employment arrangement that was in place on 8 May 2012. As the employee did not commence employment until dd/mm/yyyy an employment arrangement was not in place on 8 May 2012 and the transitional provisions will not apply. Therefore, it is necessary to consider whether the requirements of sections 31C and 31D of the FBTAA are met.

Section 31C of the FBTAA states:

MAINTAINING A HOME IN AUSTRALIA

The employee satisfies this section if:

(a) the place in Australia where the employee usually resides when in Australia:

(i) is a unit of accommodation in which the employee or the employee's spouse has an ownership interest (within the meaning of the Income Tax Assessment Act 1997); and

(ii) continues to be available for the employee's immediate use and enjoyment during the period that the duties of that employment require the employee to live away from it;

This section requires the employee to be living away from the place in Australia where he or she usually resides. This requirement is not met as the employee was not required to live away from neither the accommodation that you provided in mm and mm/yyyy, nor the house that the employee rented from mm/yyyy.

Therefore, paragraph 47(5)(ba) is not satisfied. As this paragraph is not satisfied, the accommodation provided in April and May 2013 will not be an exempt benefit.

Question 3

Will the cost of the initial flights to Australia for the employee and his family be an exempt benefit under section 58F of the FBTAA?

In general terms, section 58F of the FBTAA provides that the provision of relocation transport will be an exempt benefit.

Section 143A of the FBTAA defines relocation transport as:

(a) any of the following benefits is provided in, or in respect of, a year of tax to an employee, or to an associate of the employee, in respect of employment of the employee:

(i) …

(ii) ..

(iii) ..

(iv) a residual benefit where the recipients benefit consists of the provision of transport or accommodation in respect with transport;

(b) the transport,….. is for a family member;

(c) 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) …

(iii) …

(d) the transport is provided to enable a family member to:

(i) if subparagraph (c)(i) applies - take up residence at or near the place where the employee performs the duties of that employment while living away from his or her usual place of residence;

(ii) …

(e) if the transport is for the spouse, or a child, of the employee - the transport is not provided to enable the spouse or child to accompany the employee:

(i) while the employee is undertaking travel in the course of performing the duties of that employment; and

(ii) where the circumstances referred to in subsection 16-30(2) of the Income Tax Assessment Act 1997 do not apply; and

(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; and

(g) if subparagraph (c)(iii) applies the benefit shall be taken to be in respect of relocation transport."

In considering these requirements:

· the flights are a residual benefit that consists of the provision of transport;

· the flights are provided to a family member;

· the sole reason for the flight being provided to the employee is to enable the employee to live away from the usual place of residence in their homeland so as to be able to perform the duties of employment in Australia;

· the flights provided to the employee's family enable the family members to take up residence near the place where the employee is performing the duties of employment while living away from the usual place of residence; and

· the employee is not undertaking travel in the course of performing the duties of employment.

Therefore, the requirements in section 143A of the FBTAA are met and the transport is relocation transport. As the transport is a residual benefit that is in respect of relocation transport the initial flights to Australia will be an exempt benefit under section 58F of the FBTAA.

Question 4

Can the taxable value of the living-away-from-home allowance paid to the employee be reduced by the exempt accommodation component?

In general terms, there are three alternate methods that can be used to calculate the taxable value of a living-away-from-home allowance. The three methods are set out in:

· section 31 which applies where the requirements of sections 31C, 31D and 31F of the FBTAA are met;

· section 31A which applies where the employee is a fly-in fly-out and drive-in drive-out employee; and

· section 31B which applies where neither section 31, nor section 31A apply.

As discussed above, in relation to the accommodation provided to the employee in mm and mm/yyyy, the requirements of section 31C are not met and the employee is not a fly-in fly-out and drive-in drive-out employee.

Therefore, the relevant method to calculate the taxable value of the living-away-from-home allowance is the method set out in section 31B of the FBTAA.

Section 31B of the FBTAA states:

SECTION 31B  TAXABLE VALUE - ANY OTHER CASE

31B(1)

This section applies to a living-away-from-home allowance fringe benefit in relation to a year of tax to the extent that neither section 31 nor 31A applies to the fringe benefit and the period to which it relates.

31B(2)

Subject to this Part, the taxable value of the fringe benefit in relation to the year of tax is the amount of the fringe benefit.

As this section does not provide for the amount of the allowance to be reduced by either, the exempt food or exempt accommodation components, the taxable value of the living-away-from-home allowance fringe benefit will be the amount of the allowance.

Question 5

Is the motor vehicle allowance paid to the employee subject to the Pay As You Go (PAYG) withholding system?

Taxation Ruling TR 92/15 Income tax and fringe benefits tax: the difference between an allowance and a reimbursement (TR 92/15) provides guidance as to when a payment will be an allowance. Paragraphs 1 to 3 state:

1. This Ruling explains the difference between an allowance and a reimbursement for the purposes of determining whether a payment is a fringe benefit under the Fringe Benefits Tax Assessment Act 1986 ("FBTAA"), or whether that payment is assessable income under the Income Tax Assessment Act 1936 ("ITAA"). Other than living-away-from-home allowances, most allowances will fall for consideration under the ITAA. On the other hand, most reimbursements will fall for consideration under the FBTAA.

Ruling

2. A payment is an allowance when a person is paid a definite predetermined amount to cover an estimated expense. It is paid regardless of whether the recipient incurs the expected expense. The recipient has the discretion whether or not to expend the allowance.

3. A payment is a reimbursement when the recipient is compensated exactly (meaning precisely, as opposed to approximately), whether wholly or partly, for an expense already incurred although not necessarily disbursed. In general, the provider considers the expense to be its own and the recipient incurs the expenditure on behalf of the provider. A requirement that the recipient vouch expenses lends weight to a presumption that the payment is a reimbursement rather than an allowance. A requirement that the recipient refunds unexpected amounts to the employer adds further weight to that presumption

Paragraph 6 of TR 92/15 explains an allowance to be:

6. The word "allowance" is defined in the Macquarie dictionary as "a definite sum of money allotted or granted to meet expenses or requirements". An allowance will usually consist of the payment of a definite predetermined amount to cover an estimated expense, and will be paid regardless of whether the recipient incurs the expected expense.

The payments are a pre determined amount payable each fortnight. In applying TR 92/15, these payments will be an allowance which will be part of the employee's assessable income.

The ATO publication, Withholding from allowances contains a list of allowances that are subject to PAYG withholding. The list includes motor vehicle allowances paid for non-deductible travel.

For your information we have enclosed a copy of Withholding from allowances.

Question 6

Is the annual flight to their homeland eligible for concessional treatment under section 61A of the FBTAA?

The general effect of section 61A of the FBTAA is to provide a reduction in the taxable value of fringe benefits that arise from holiday travel provided in accordance with an award or industry custom to employees posted overseas. The amount of the reduction will be either 50% of the gross taxable value, or 50% of the benchmark travel amount.

For the reduction to apply the fringe benefits have to be in respect of overseas employment holiday transport. Overseas employment holiday is defined in subsection 143C(1) of the FBTAA. Subsection 143C(1) states:

For the purposes of this Act, where:

(a) any of the following benefits is provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer:

(i) …

(ii) ….

(iii) A residual fringe benefit where the recipients benefit consists of the provision of transport or accommodation in connection with transport;

(b) the transport,….. is for a family member;

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

(d) at the time(in this section called the ("outbound travel time") immediately before the commencement of travel undertaken by the family member in connection with that holiday:

(i) the employee was an overseas employee; and

(ii) disregarding the days of recreation leave, the employee's overseas posting period was a period of not less than 28 days;

(e) if the transport is for the employee:

(i) the transport is provided while the employee is on recreation leave, being recreation leave of not less than 3 working days; and

(ii) at the completion of that recreation leave, the employee resumes the duties of that employment at the place that the employee's overseas employment place at the outbound travel time;

(f) either of the following subparagraphs applies:

(i) the transport is between:

(A) a place at or near the place that was the employee's overseas employment place at the outbound travel time; and

(B) another place;

(ii) …

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

(k) if the transport is for the spouse, or a child of the employee - the transport is not provided to enable the spouse or child to accompany the employee:

(i) while the employee is undertaking travel in the course of performing the duties of his or her employment; and

(ii) where the circumstances referred to in subsection 26-30(2) of the Income Tax Assessment Act 1997 do not apply; and

(m) either of the following conditions is satisfied:

(i) the benefit is provided pursuant to the provisions of an industrial instrument relating to the employment of the employee;

(ii) it is customary for employers in the industry in which the employee is employed to provide benefits of the same kind as the benefit provided to the recipient and to provide such benefits in similar circumstances to those that applied in relation to the provision of the benefit to the recipient;

the following provisions have effect:

(n) the fringe benefit shall be taken to be in respect of overseas employment holiday transport;

(p) the benchmark travel amount in relation to the fringe benefit is …

In considering these requirements:

· the provision of flights is a residual benefit that consists of the provision of transport;

· the transport is for a family member;

· the transport is provided to enable the employee and their family to have a holiday of not less than 3 days leave;

· the employee is an overseas employee (as defined in section 143B of the FBTAA) for a period of four years;

· the transport is provided to the employee whilst the employee is on recreation leave and the employee at the conclusion of the recreation leave resumes the duties of employment in Australia;

· the transport is to and from the overseas work location (Australia);

· the transport is not in respect of remote area holiday transport;

· the flights provided to family members are not provided while the employee is undertaking travel and are not provided where the circumstances referred to in subsection 26-30(2) of the Income Tax Assessment Act 1997 (ITAA 1997) do not apply; and

· it is customary for employers in your industry to provide holiday flights to employees posted overseas.

As each of these requirements are met, the flights are taken to be in respect of overseas employment holiday transport and the reduction in section 61A of the FBTAA will apply to the calculation of the taxable value of the fringe benefit.