Edited version of your private ruling

Authorisation Number: 1012535804841

Ruling

Subject: Small Business Car Parking Exemption

Issue 1

Question 1

Are car parking facilities provided to the individuals working for Company X at the capital city premises of Company X exempt under section 58GA of the Fringe Benefits Tax Assessment Act 1986 (FBTAA)?

Answer

No

Question 2

If the answer to Question 1 is 'no', are car parking facilities provided to the individuals working for Company X at the capital city business premises of Company X exempt under any other provision of the FBTAA?

Answer

No

This ruling applies for the following period:

Fringe Benefits Tax year ended 31 March 2013

The scheme commences on:

1 April 2012

Relevant facts and circumstances

Company X is a foreign company.

Company X is not a public company covered by paragraph 103A(2)(a) of the Income Tax Assessment Act 1936 (ITAA 1936).

Company X is not a subsidiary of a public company within the meaning of subsection 103A(4) of the ITAA 1936.

Company X is not a 'government body' as that term is defined in subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA).

Company X operates in Australia through an Australian resident branch in a capital city (Company X City Branch).

The sum of the ordinary and statutory income of Company X for the year of income ending most recently before the start of the fringe benefits tax (FBT) year commencing 01/04/2012 exceeded $10 million AUD.

The sum of the ordinary and statutory income of the Company X City Branch for the year of income ending most recently before the start of the FBT year commencing 01/04/2012 did not exceed $10 million AUD.

Individuals (Company X city staff) working at the Company X City Branch are provided with car parking facilities located at the Company X City Branch premises.

Company X rents the relevant car parking spaces from the lessor of the Company X City Branch premises.

None of the car parking spaces at the Company X City Branch premises are made available to members of the public for all-day parking for the payment of a fee.

There is a commercial car parking station located within a 1km radius of the Company X City Branch premises.

The lowest daily fee charged by the operator of any such commercial parking station in the ordinary course of business to members of the public for all-day parking exceeded the $7.83 threshold on the first business day of the 2013 fringe benefits tax year.

The use of the cars parked at the car parking spaces at the Company X City Branch premises includes travel by the employees to their place of residence.

The car parking facilities provided to the Company X city staff would otherwise constitute car parking benefits for the purposes of section 39A of the FBTAA unless otherwise exempted.

None of the Company X city staff incur any costs for the car parking facilities provided at the Company X City Branch premises.

None of the Company X city staff obtain use of the car parking facilities provided at the Company X City Branch premises under salary sacrifice arrangements.

Company X city staff use the car parking facilities provided at the Company X City Branch premises on a regular basis.

Company X is the legal employer of all Company X city staff working at the Company X City Branch premises.

All the Company X city staff provide their services of employment to Company X only at the Company X City Branch premises.

Relevant legislative provisions

Fringe Benefits Tax Assessment Act 1986 Section 20

Fringe Benefits Tax Assessment Act 1986 Section 40

Fringe Benefits Tax Assessment Act 1986 Section 39A

Fringe Benefits Tax Assessment Act 1986 Section 39C

Fringe Benefits Tax Assessment Act 1986 Section 39D

Fringe Benefits Tax Assessment Act 1986 Section 39DA

Fringe Benefits Tax Assessment Act 1986 Section 39F

Fringe Benefits Tax Assessment Act 1986 Section 39G

Fringe Benefits Tax Assessment Act 1986 Section 45

Fringe Benefits Tax Assessment Act 1986 Section 58G

Fringe Benefits Tax Assessment Act 1986 Section 58GA

Fringe Benefits Tax Assessment Act 1986 Section 58P

Fringe Benefits Tax Assessment Act 1986 Subsection 136(1)

Income Tax Assessment Act 1936 Paragraph 103A(2)(a)

Income Tax Assessment Act 1936 Subsection 103A(4)

Income Tax Assessment Act 1997 Subsection 995-1(1)

Income Tax Assessment Act 1997 Section 328-110

Income Tax Assessment Act 1997 Subsection 328-115(1)

Income Tax Assessment Act 1997 Subsection 328-120(1)

Reasons for decision

Issue 1

Question 1

Detailed reasoning

Small business car parking exemption under section 58GA of the FBTAA

1. Section 58GA of the FBTAA exempts 'small business car parking'. Section 58GA of the FBTAA states (as relevant here):

58GA(1) Exemption.

A car parking benefit provided in an FBT year in respect of the employment of an employee is an exempt benefit if:

(a) the car is not parked at a commercial parking station; and

(b) the employer of the employee is not a public company (see subsection (3)), or a subsidiary of a public company (see subsection (3)), in relation to the day on which the benefit is provided; and

(c) the employer is not a government body; and

(d) either:

(i) the sum of the employer's ordinary income and statutory income for the year of income ending most recently before the start of the FBT year is less than $10 million;

or

(ii) the employer is a small business entity for the year of income ending most recently before the start of the FBT year.

58GA(2) New employers.

...

58GA(3) Definitions.

In this section:

ordinary income has the same meaning as in the Income Tax Assessment Act 1997.

public company means a company covered by paragraph 103A(2)(a) of the Income Tax Assessment Act 1936, but reading the reference in that paragraph to the last day of the year of income as a reference to the day on which the benefit is provided.

small business entity has the meaning given by subsection 995-1(1) of the Income Tax Assessment Act 1997.

statutory income has the same meaning as in the Income Tax Assessment Act 1997.

subsidiary of a public company means a subsidiary of a public company within the meaning of subsection 103A(4) of the Income Tax Assessment Act 1936, but reading:

(a) a reference in section 103A of that Act to a year of income as a reference to the day on which the benefit is provided; and

(b) a reference in that section to a public company as a reference to a public company within the meaning of this section.

tax-exempt employer means an employer all of whose income is wholly exempt from income tax.

2. Therefore, exemption under subsection 58GA(1) of the FBTAA requires that:

(a) a car parking benefit is provided.

(b) the car parking benefit is provided in respect of the employment of the employee.

(c) the car is not parked at a commercial parking station.

(d) the employer is neither a public company nor a subsidiary of a public company.

(e) the employer is not a government body.

(f) either:

(i) the sum of the employer's ordinary income and statutory income for the year of income ending most recently before the start of the FBT year is less than $10 million; or

(ii) the employer is a small business entity for the year of income ending most recently before the start of the FBT year.

(a) is a car parking benefit provided?

3. Subsection 136(1) of the FBTAA states that a 'car parking benefit' means a benefit referred to in section 39A of the FBTAA.

4. The car parking facilities provided to the Company X city staff would constitute car parking benefits for the purposes of section 39A of the FBTAA.

5. This condition is met.

(b) is the car parking benefit provided in respect of the employee's employment?

6. The car parking facilities are only provided to the Company X city staff while they are working at the Company X City Branch premises.

7. This condition is met.

(c) is the car not parked at a commercial parking station?

8. The term 'commercial parking station' is defined in subsection 136(1) of the FBTAA as follows:

commercial parking station, in relation to a particular day, means a permanent commercial car parking facility where any or all of the car parking spaces are available in the ordinary course of business to members of the public for all-day parking on that day on payment of a fee, but does not include a parking facility on a public street, road, lane, thoroughfare or footpath paid for by inserting money in a meter or by obtaining a voucher.

9. None of the car parking spaces at the Company X City Branch premises are made available to members of the public for all-day parking for the payment of a fee.

10. This condition is met.

(d) is the employer neither a public company nor a public company subsidiary?

11. Company X is the legal employer of all the Company X city staff working at the Company X City Branch premises.

12. Nonetheless, all the Company X city staff provide their services of employment only at the Company X City Branch premises.

13. The term 'employer' as defined in subsection 136(1) of the FBTAA includes a 'current employer'. The term 'current employer' as defined in subsection 136(1) of the FBTAA states that 'current employer means a person...who pays, or is liable to pay, salary or wages...'.

14. Therefore, Company X as the legal employer of the Company X city staff, is the person who pays, or is liable to pay, the salary or wages (as applicable) of the Company X city staff.

15. Therefore, it is considered that for the purposes of the FBTAA it is only Company X that is 'the employer' in respect of the Company X city staff .

16. For the purposes of the FBTAA, the Company X city staff are employed at the Company X City Branch not employed by the Company X City Branch.

17. Company X is not a public company covered by paragraph 103A(2)(a) of the ITAA 1936.

18. Company X is not a subsidiary of a public company within the meaning of subsection 103A(4) of the ITAA 1936.

19. This condition is met.

(e) is the employer is not a government body?

20. Company X is not a 'government body' as that term is defined in subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA).

21. This condition is met.

(f) is the employer's relevant income less than $10 million or is the employer a small business entity?

22. The Explanatory Memorandum (EM) to Taxation Laws Amendment Bill (No. 2) 1998 that introduced section 58GA into the FBTAA contained the following statements:

2.3 A new exemption from FBT for car parking benefits, other than car parking benefits provided in a commercial car park, will be provided for certain small business owners. This exemption will not extend to car parking benefits provided by government bodies or listed public companies and their subsidiaries. [Schedule 3]

...

2.86 The proposed measures implement the Government's response to the [Small Business Deregulation Task Force's] recommendations concerning the treatment of car parking...under the fringe benefits tax law...

...

2.90 The FBTAA will also be amended to exempt car parking benefits provided by certain employers unless the parking is in a commercial car park. Employers other than government bodies, listed public companies and subsidiaries of such companies will be eligible for the exemption if their ordinary income and statutory income (ie. gross income) for the year of income ended before the start of the FBT year in which the car parking benefits are provided is less than $10 million.

...

2.94 The exemption for certain car parking benefits will affect employers, other than government bodies or listed public companies and their subsidiaries, whose ordinary income for the relevant year of income is less than $10 million and who provide car parking for employees other than in a commercial car park.

23. Under the FBTAA it is the employer who bears the liability for the provision of fringe benefits. It is considered that the above extracted statements from the EM illustrate that the income limits set for access to exemption under section 58GA of the FBTAA are to be applied solely in relation to the income of the employer.

24. Therefore, for example, where an employer company may be part of a group of companies the sum of the ordinary and statutory income of the group of companies as a whole is not relevant for the purposes of subparagraph 58GA(1)(d)(i) of the FBTAA but rather it is the sum of the ordinary and statutory income solely of the employer company that is pertinent for the purposes of subparagraph 58GA(1)(d)(i) of the FBTAA.

25. As determined above (at paragraph 15), Company X is 'the employer' for the purposes of the FBTAA. Therefore, it is solely the sum of the ordinary and statutory income of Company X that is relevant for the purposes of subparagraph 58GA(1)(d)(i) of the FBTAA.

26. The sum of the ordinary and statutory income of Company X for the year of income ending most recently before the start of the FBT year commencing 01/04/2012 exceeded $10 million AUD.

27. Therefore, the requirements of subparagraph 58GA(1)(d)(i) of the FBTAA are not met.

28. Subsection 58GA(3) of the FBTAA states that the term 'small business entity' has the same meaning as in subsection 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997).

29. Subsection 995-1(1) of the ITAA 1997, in turn, defines the term 'small business entity' as having the meaning given by section 328-110 of the ITAA 1997.

30. Section 328-110 of the ITAA 1997 states (as relevant here):

SECTION 328-110 Meaning of small business entity

General rule: based on aggregated turnover worked out as at the beginning of the current income year

328-110(1)

You are a small business entity for an income year (the current year) if:

(a) you carry on a *business in the current year; and

(b) one or both of the following applies:

(i) you carried on a business in the income year (the previous year) before the current year and your *aggregated turnover for the previous year was less than $2 million;

(ii) your aggregated turnover for the current year is likely to be less than $2 million.

...

328-110(2)

...

Exception: aggregated turnover for 2 previous income years was $2 million or more

328-110(3)

However, you are not a small business entity for an income year (the current year) because of subparagraph (1)(b)(ii) if:

(a) you carried on a *business in each of the 2 income years before the current year; and

(b) your *aggregated turnover for each of those income years was $2 million or more.

...

Additional rule: based on aggregated turnover worked out as at the end of the current income year

328-110(4)

You are also a small business entity for an income year (the current year) if:

(a) you carry on a *business in the current year; and

(b) your *aggregated turnover for the current year, worked out as at the end of that year, is less than $2 million.

...

31. Under subsection 328-115(1) of the ITAA 1997, the aggregated turnover for an income year is (with some limited exceptions) the sum of the 'relevant annual turnovers'. What comprises 'relevant annual turnovers' is dependant on the 'annual turnover' for each of the relevant income years.

32. Under subsection 328-120(1) of the ITAA 1997, an entity's annual turnover for an income year is (with some limited exceptions) the total of the ordinary income that the entity derives in the income year in the ordinary course of carrying on a business.

33. However, to fall within the exemption afforded by subparagraph 58GA(1)(d)(ii) of the FBTAA, Company X has to be a small business entity for the year of income ending most recently before the start of the FBT year commencing 01/04/2012.

34. Given that the sum of the ordinary and statutory income of Company X for the year of income ending most recently before the start of the FBT year commencing 01/04/2012 exceeded $10 million AUD it is considered, in the absence of any evidence to the contrary, that the aggregated turnover for Company X for the relevant year of income would not be less than $2 million AUD.

35. Therefore, Company X is not a small business entity for the purposes of section 328-110 of the ITAA 1997 and also, consequently, the requirements of subparagraph 58GA(1)(d)(ii) of the FBTAA are not met.

History of legislation

S 328-110(4) amended by No 37 of 2012, s 3 and Sch 1 item 12, by inserting para (f) in the note, effective 15 April 2012.

S 328-110(4) amended by No 36 of 2012, s 3 and Sch 1 item 27, by inserting para (e) in the note, effective 15 April 2012.

S 328-110(4) amended by No 41 of 2011, s 3 and Sch 5 item 393, by substituting "in Schedule 1" for "of Schedule 1" in para (a) of the note, effective 27 June 2011.

Conclusion on whether the employer's relevant income is less than $10 million or the employer a small business entity

36. This condition is not met as neither the requirements of subparagraph 58GA(1)(d)(i) of the FBTAA are met nor the requirements of subparagraph 58GA(1)(d)(ii) of the FBTAA are met.

Conclusion on exemption under section 58GA of the FBTAA

37. Car parking facilities provided to the Company X city staff working at the Company X City Branch are not exempt under section 58GA of the FBTAA as not all of the required conditions are met.

Question 2

Detailed reasoning

1. It is considered that the only two remaining relevant sections of the FBTAA under which exemption may possibly be granted in respect of the car parking facilities, provided to the Company X city staff working at the Company X City Branch premises, are the exemptions afforded by either section 58G or section 58P of the FBTAA.

Motor vehicle parking exemption under section 58G of the FBTAA

2. Section 58G of the FBTAA exempts certain motor vehicle parking facilities. Subsection 58G(1) of the FBTAA is considered to be the only relevant subsection to this case. Subsection 58G(1) of the FBTAA states:

58G(1) [Motor vehicle parking facilities]

Each of the following benefits is an exempt benefit:

(a) an expense payment benefit, where:

(i) the recipients expenditure is in respect of the provision of motor vehicle parking facilities; and

(ii) the benefit is not an eligible car parking expense payment benefit;

(b) a residual benefit where the recipients benefit consists of motor vehicle parking facilities.

3. Therefore, exemption under subsection 58G(1) of the FBTAA will be granted where there is either:

(a) an expense payment benefit which meets certain specified requirements; or

(b) a residual benefit where the recipients benefit consists of motor vehicle parking facilities.

(a) is there an expense payment benefit which meets the specified requirements?

4. An expense payment benefit under section 20 of the FBTAA is, basically, either where an employer (or associate) reimburses an employee (or associate) for expenses incurred by the employee (or associate) or where an employer (or associate) pays a third party in satisfaction of expenses incurred by an employee (or associate).

5. None of the Company X city staff incur any costs for the car parking facilities provided at the Company X City Branch premises.

6. Therefore, the conditions required for the provision of expense payment benefits, under section 20 of the FBTAA, will not occur in this particular case.

7. This condition is not met.

(b) is there a residual benefit where the recipients benefit consists of motor vehicle parking facilities?

8. The term 'motor vehicle parking facilities' is not a defined term in the FBTAA however, it is considered that any defined area which may be utilised for the purposes of parking motor vehicles would qualify as a 'motor vehicle parking facility'.

9. Therefore, it is also considered that the relevant car parking spaces provided at the Company X City Branch premises will qualify as a 'motor vehicle parking facilities'.

10. Section 45 of the FBTAA states when a residual benefit arises. Section 45 of the FBTAA states:

SECTION 45

45 RESIDUAL BENEFITS

A benefit is a residual benefit for the purposes of this Act if the benefit is not a benefit by virtue of a provision of Subdivision A of Divisions 2 to 11 (inclusive).

11. Therefore, once again in basic terms, a residual benefit is a benefit that does not fall within one of the other more specific benefit types contained in the FBTAA.

12. The car parking facilities provided to the Company X city staff will constitute car parking benefits for the purposes of section 39A of the FBTAA unless otherwise exempted.

13. Therefore, the provision of the car parking facilities to the Company X city staff will fall within one of the more specific benefit types contained in the FBTAA and, consequently, cannot constitute residual benefits.

Conclusion on exemption under section 58G of the FBTAA

14. Car parking facilities provided to the Company X city staff working at the Company X City Branch are not exempt under section 58G of the FBTAA as not all of the required conditions are met.

Minor benefits exemption under section 58P of the FBTAA

15. Section 58P of the FBTAA exempts certain minor benefits. Section 58P of the FBTAA states (as relevant here):

SECTION 58P EXEMPT BENEFITS - MINOR BENEFITS

58P(1) [Tests for exemption]

Where:

(a) a benefit (in this section called a minor benefit) is provided in, or in respect of, a year of tax (in this section called the current year of tax) in respect of the employment of an employee of an employer;

(b) (Repealed by No 88 of 2013)

(c) in the case of an expense payment benefit, a property benefit or a residual benefit - if the minor benefit were an expense payment fringe benefit, a property fringe benefit or a residual fringe benefit, as the case may be, in relation to the employer, the expense payment fringe benefit, the property fringe benefit or the residual fringe benefit, as the case requires, would not be an in-house fringe benefit;

(d) ...

(e) the notional taxable value of the minor benefit in relation to the current year of tax is less than $300; and

(f) having regard to:

(i) the infrequency and irregularity with which associated benefits, being benefits that are identical or similar to:

(A) the minor benefit; or

(B) benefits provided in connection with the provision of the minor benefit; have been or can reasonably be expected to be provided;

(ii) the amount that is, or might reasonably be expected to be, the sum of the notional taxable values of the minor benefit and any associated benefits, being benefits that are identical or similar to the minor benefit, in relation to the current year of tax or any other year of tax;

(iii) the amount that is, or might reasonably be expected to be, the sum of the notional taxable values of any other associated benefits in relation to the current year of tax or any other year of tax;

(iv) the practical difficulty for the employer in determining the notional taxable values in relation to the current year of tax of:

(A) if the minor benefit is not a car benefit - the minor benefit; and

(B) if there are any associated benefits that are not car benefits - those associated benefits; and

(v) the circumstances surrounding the provision of the minor benefit and any associated benefits including, but without limiting the generality of the foregoing:

(A) whether the benefit concerned was provided to assist the employee to deal with an unexpected event; and

(B) whether the benefit concerned was provided otherwise than wholly or principally by way of a reward for services rendered, or to be rendered, by the employee;

it would be concluded that it would be unreasonable to treat the minor benefit as a fringe benefit in relation to the employer in relation to the current year of tax;

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

58P(2)[Associated benefit]

...

16. Therefore, exemption under section 58P of the FBTAA will be granted where the following conditions are met (as relevant here):

(a) there is a benefit provided in respect of the employment of an employee of an employer.

(b) in the case of an expense payment benefit, a property benefit or a residual benefit, if it were a fringe benefit, it would not be an in-house fringe benefit.

(c) the notional taxable value of the minor benefit is less than $300.

(d) it would be concluded that it would be unreasonable, having regard to the specified criteria in paragraph 58P(1)(f) of the FBTAA, to treat the minor benefit as a fringe benefit.

(a) is there a benefit provided in respect of employment of an employee?

17. The car parking facilities are only provided to the Company X city staff while they are working at the Company X City Branch premises.

18. This condition is met.

(b) is there an expense payment benefit, property benefit or residual benefit that is an in-house benefit?

19. As determined previously (at paragraphs 6 and 13 respectively), neither expense payment benefits nor residual benefits arise in this case.

20. Property benefits arise under section 40 of the FBTAA where a person provides property to another person.

21. Subsection 136(1) of the FBTAA defines 'property' as comprising both tangible and intangible property. The term 'tangible property, as defined in subsection 136(1) of the FBTAA, basically means goods. The term 'intangible property', as defined in subsection 136(1) of the FBTAA, basically means real property, a chose in action or any other kind of property other than tangible property.

22. It is considered that the provision of the car parking facilities, to the Company X City staff working at the Company X City Branch premises, being neither 'tangible property' nor 'intangible property', as those terms are defined in the FBTAA, do not, therefore, constitute property benefits under section 40 of the FBTAA.

23. As it has been determined previously (at paragraphs 6, 13 and 22 respectively) that no expense payment benefits, residual benefits nor property benefits arise from the provision of the car parking facilities to the Company X city staff working at the Company X City Branch premises it is, consequently, unnecessary to consider further whether any in-house benefits also arise.

24. Therefore, this condition is irrelevant in determining whether exemption under section 58P of the FBTAA applies to this case.

(c) is the notional taxable value of the minor benefit less than $300?

25. As relevant here, the term 'notional taxable value', as defined in subsection 136(1) of the FBTAA, means 'the amount that, if it were assumed that...the benefit was a fringe benefit...would be the taxable value of the fringe benefit in relation to the year of tax'.

26. It is considered that the relevant type of fringe benefit to be used in this case to determine the notional taxable value would be that of car parking fringe benefits.

27. However, there are five alternative ways of calculating the taxable value of car parking fringe benefits being the:

(i) 'commercial parking station method' (section 39C of the FBTAA).

(ii) 'market value method' (section 39D of the FBTAA).

(iii) 'average cost method' (section 39DA of the FBTAA).

(iv) 'statutory formula method' (section 39F of the FBTAA).

(v) '12 week register method' (section 39G of the FBTAA).

28. The 'commercial parking station method' must be used unless an election is made to use one of the other methods.

29. Nonetheless, whichever method may be chosen to value of the car parking facilities, provided to the Company X city staff working at the Company X City Branch premises , it is considered that, in the absence of evidence to the contrary relating to a particular instance, it is more than likely that the resultant notional taxable value will not be less than $300.

30. It is further considered, therefore, that this condition is not met.

(d) is it unreasonable to treat the minor benefit as a fringe benefit?

31. Taxation Ruling TR 2007/12¹ provides the following guidance regarding the consideration of the specified criteria in paragraph 58P(1)(f) of the FBTAA:

195. All five criteria must be considered. No single criterion on its own will determine whether it is unreasonable to treat the benefit as a fringe benefit.

196. In considering the scope of the exemption it will be necessary to look to the nature of the benefit provided and give due weight to each of the criteria.

197. The weight given to each criterion will vary depending on the circumstances surrounding the provision of each benefit.

198. The conclusion that must be reached after having considered the five criteria is an objective one. It is a 'reasonable person' test. That is, what would a reasonable person conclude after having regard to all the relevant circumstances surrounding the provision of the minor benefit. The provision does not give the Commissioner a discretion.

...

200. The first criterion to be considered is the infrequency and irregularity with which associated benefits, being benefits that are identical or similar to the minor benefit or benefits that are given in connection with the minor benefit, are provided, or can reasonably be expected to be provided.

201. It is important to note that although this is the first criterion listed, it is not the main, or only, criterion and 'regard must be had to all factors, even if only to consider that a particular factor is irrelevant in the circumstances'. [Taxation Ruling TR 2007/12 Fringe benefits tax: minor benefits]

...

212. Whether a benefit is provided infrequently and irregularly will depend on the circumstances, as highlighted in Case 2/96.

213. Accordingly, it is not appropriate to specify the number of times associated benefits that are identical or similar to a minor benefit, or benefits provided in connection with the minor benefit, can be provided while satisfying the 'infrequency and irregularity' criterion.

214. However, the more often and regular those benefits are provided, the less likely that this criterion would be satisfied.

...

218. The second criterion to be considered is the amount that is, or might reasonably be expected to be, the sum of the notional taxable values of the minor benefit and any associated benefits, being benefits that are identical or similar to the minor benefit, in relation to the current year or any other year of tax.

...

221. The greater the value of the minor benefit and identical or similar benefits, the less likely it is the minor benefit will qualify as an exempt benefit.

222. The value of the benefits in the current year as well as in any other year must be taken into account when determining the total value of benefits for the purposes of this criterion.

223. This will apply to identical or similar benefits that have been provided in the past and are likely to be provided in the future.

...

225. The third criterion to be considered is the amount that is, or might reasonably be expected to be, the sum of the notional taxable values of any other associated benefits provided in relation to the current year of tax or any other year of tax.

...

232. The fourth criterion to be considered is the practical difficulty for the employer in determining the notional taxable values of the minor benefit (if it is not a car benefit) and any associated benefits (also if they are not car benefits).

233. This includes consideration of the difficulty for the employer in keeping the necessary records in relation to the minor benefit and any associated benefits.

...

236. The fifth criterion requires consideration of the circumstances surrounding the provision of the minor benefit. Without limiting the generality of the circumstances to be considered surrounding the provision of the benefit, it is necessary to consider specifically whether the benefit was provided as a result of an unexpected event and whether or not it could be regarded to be provided wholly or principally as a reward for services rendered, or to be rendered, by the employee.

237. Whether a benefit is provided to assist the employee to deal with an unexpected event will always be a question of fact...

238. Whether a benefit was provided otherwise than wholly or principally by way of a reward for services rendered, or to be rendered, by the employee, will in some instances be clear (for example where the benefit is provided as part of a SSA). In other instances, whether a benefit has been provided wholly or principally as a reward for services will be less clear.

32. The Explanatory Memorandum to Taxation Laws Amendment (Car Parking) Bill 1992 stated:

Minor Benefits

This Bill will not effect the operation of Section 58P of the FBTAA. Section 58P exempts from fringe benefits tax certain minor benefits which are provided on an infrequent basis.

33. Company X city staff use the car parking facilities provided at the Company X City Branch premises on a regular basis. It is concluded that the Company X city staff by attending the Company X City Branch premises for work on a regular basis will also, consequently, use the relevant car parking facilities on a frequent basis.

34. As concluded previously (at paragraph 29), and in the absence of evidence to the contrary relating to a particular instance, it is more than likely that the notional taxable values of the car parking facilities provided to the Company X city staff will not be less than $300 in each case for the relevant fringe benefits tax year.

35. It is also considered likely in the circumstances of this case that in many (if not all) instances where the car parking facilities are being provided, to the Company X city staff at the Company X City Branch premises, such benefits have been provided in the past to the relevant Company X city staff and are likely to continue to do so in the foreseeable future.

36. There is no indication that any relevant associated benefits are also being provided to the Company X city staff along with the provision of the car parking facilities at the Company X City Branch premises.

37. There is no indication that it would be especially difficult for Company X to determine the notional taxable values of the car parking facilities provided to the Company X city staff at the Company X City Branch premises.

38. Albeit none of the Company X city staff obtain use of the car parking facilities at the Company X City Branch premises under salary sacrifice arrangements, the use of the relevant car parking spaces are, nonetheless, not provided to the Company X city staff as a result of unexpected events but rather they are provided to them as a usual consequence of the Company X city staff working at the Company X City Branch.

39. In view of all the above circumstances it is, therefore, concluded that it would it would not be unreasonable, having regard to the specified criteria in paragraph 58P(1)(f) of the FBTAA, to treat the minor benefits as a fringe benefits.

40. This condition is not met.

Conclusion on exemption under section 58P of the FBTAA

41. Car parking facilities provided to the Company X city staff working at the Company X City Branch are not exempt under section 58P of the FBTAA as at least one, if not more, of the required conditions are not met.

¹