Edited version of your written advice

Authorisation Number: 1051374195108

Date of advice: 17 May 2018

Ruling

Subject: Fringe benefits tax and housing benefits

Question 1

Are tutors and advisers of the College considered employees for the purposes of the Fringe Benefits Tax Assessment Act 1986 (FBTAA 1986)?

Answer

Yes

Question 2

Is the College the usual place of residence for the tutor/adviser in each of the following scenarios?

(a) The tutor/adviser lived at the parental or family home (family home) prior to living at the College and maintains a room and some of their possessions at home during the university semester. During all of the university mid-semester breaks, mid-year vacation and summer vacation at the end of the academic year the tutor/adviser returns to the family home (unless they are rostered to perform duties at the College during any of these breaks and vacations, in which case they remain at the College).

(b) The tutor/adviser lived at the family home prior to living at the College and maintains a room and some of their possessions at home during the university semester. During all of the university mid-semester breaks and mid-year vacation the tutor/adviser goes to another place of accommodation but returns to the family home over the summer vacation at the end of the academic year (unless they are rostered to perform duties at the College during any of these breaks and vacations, in which case they remain at the College).

(c) The tutor/adviser lived at the family home prior to living at the College and maintains a room and some of their possessions at home during the university semester. During the mid-semester breaks they stay at the College (even though they are not rostered to perform their duties during these times). However during the university mid-year vacation the tutor/adviser goes back to their family home or to another place of accommodation and returns to the family home over the summer vacation at the end of the academic year (unless they are rostered to perform duties at the College during any of these vacations, in which case they remain at the College).

(d) The tutor/adviser lived at the family home prior to living at the College and maintains a room and some of their possessions at home during the university semester. During all of the university mid-semester breaks and mid-year vacation the tutor/adviser stays at the College (even though they are not rostered to perform duties during these times) and returns to the family home over the summer vacation at the end of the academic year (unless they are rostered to perform duties at the College during the summer vacation, in which case they remain at the College).

Answer

Yes

Question 3

Is accommodation provided to tutors and advisers identical or similar to the accommodation offered to outsiders?

Answer

Yes

This ruling applies for the following periods:

Year ended 31 March 201X

Year ended 31 March 201X

Year ended 31 March 201X

Year ended 31 March 201X

Year ended 31 March 201X

The scheme commences on:

1 April 201X

Relevant facts and circumstances

The College is company that provides accommodation and care for students at the University.

The accommodation provided by the College includes two campuses:

1. Undergraduate campus – the residential college for undergraduate students at the University.

2. Postgraduate campus – the residential community for postgraduate students at the University.

The Undergraduate campus of the College is fully catered with each student receiving three meals a day.

The Postgraduate campus of the College is self-catered, such that students are not provided with meals.

The target customer at the College is principally university students attending the University, although this is not a mandatory requirement for acceptance.

The College employs tutors and advisers, which each have different duties. Their duties and terms of appointment are outlined below:

Academic Tutor (AT)

ATs are present on both the Undergraduate and Postgraduate campuses.

The duties of ATs include:

● Providing assistance to students

● Running formal tutorials or conducting meetings in the first weeks of the first session to identify the students in their subject area, especially first year students.

● Being available for consultation at least four hours per week throughout the university sessions, study vacations and examination periods.

● Reporting regularly to the Senior Academic Tutor, Dean and Master regarding their tutoring.

● General induction of their allocated students into their courses and general University life.

ATs are required to reside on campus for the duration of their appointment.

As compensation for their duties, ATs are provided with accommodation on campus at a discounted rate for the period of their appointment.

ATs generally have a one year appointment starting at the beginning of the first semester to the final official day of the exam period in the final semester.

Senior Academic Tutor (SAT)

SATs are present on both the Undergraduate and Postgraduate campuses.

SATs are required to undertake the same duties as ATs with additional responsibility to provide leadership, encouragement and support for the ATs and assist the Dean and Senior Resident Adviser with the provision of tutorial support to residents of the College.

SATs are required to reside on campus for the duration of their appointment.

As compensation for their duties, ATs are provided with accommodation on campus at a discounted rate for the period of their appointment.

SATs generally have a one year appointment starting at the beginning of the first semester to the final official day of the exam period in the final semester.

Resident Adviser (RA)

RAs are present at both the Undergraduate and Postgraduate campuses.

RAs are required to undertake various duties including the following:

● Be involved in the life of the College (such as through participating in or attending sports or being involved in functions such as the art exhibition, the play and weekly social events).

● Special pastoral duties, including meeting with each person in their area on an at least monthly basis.

● For the first year students allocated to them, get to know the students, maintain regular contact, identify any issues regarding their welfare and refer them to the Dean or Senior Resident Advisers where they are unable to help or the matter is serious.

● Provide effective community leadership through their contact with members of the College and promote its purposes and policies.

● Maintain an appropriate living, working and sleeping environment for residents on their floor in co-operation with the Dean.

● Provide advice to students in their own academic area and on general academic matters.

● Attend an orientation program and complete a Senior First Aid certificate.

● Contribute to and attend various functions at the College.

● Operation of the administrative and social duties roster.

● Attend weekly meetings with the Dean and Senior Resident Adviser.

As compensation for their duties, RAs are provided with accommodation on campus at a discounted rate for the period of their appointment.

RAs generally have a one year appointment starting mid-February and ending at the beginning of December.

RAs are required to stay on campus during their time of appointment. If they are going to be away overnight they must seek permission beforehand.

Senior Resident Adviser (SRA)

SRAs are present on both the Undergraduate and Postgraduate campuses.

SRAs are required to undertake various duties including the following:

● Be involved in the life of the College (such as through participating in or attending sports or being involved in functions such as the art exhibition, the play and weekly social events).

● Special pastoral duties, including regular catch ups with each RA in their team, the Dean and Master.

● Provide effective community leadership through their contact with members of the College and promote its purposes and policies.

● Hosting weekly meetings with the RA team.

● Provide advice to students in their own academic area and on general academic matters.

● Attend an orientation program and complete a Senior First Aid certificate.

● Contribute to and attend various functions at the College.

● Overseeing operation of the administrative and social duties roster.

● Attend weekly meetings with the Dean and RAs.

As compensation for their duties, SRAs are provided with accommodation on campus at a discounted rate for the period of their appointment.

SRAs generally have a one year appointment starting mid-February and ending at the beginning of December.

SRAs are required to stay on campus during their time of appointment. If they are going to be away for two nights or more they must seek permission beforehand.

Summer Resident Adviser (Summer RA)

Summer RAs are appointed over the summer vacation period between the end of the year and the beginning of the next year. Summer RAs positions are only offered to students who resided on campus during the relevant academic year and may also be offered to students who were employed throughout the academic year as tutors or advisers.

Their duties involve being available for calls to reception and the RA Duty phone.

As compensation for undertaking these duties, Summer RAs are provided with accommodation at a discounted rate for the period of their appointment. They are expected to stay on campus during their appointment period.

Summer RAs are employed over the summer vacation period between the end of the year and the beginning of the following year.

NARC-Co-ordinator

A NARC co-ordinator is required to coordinate the activities of the Network Resources Committee (NARC) which includes providing assistance to students setting up and maintaining their computers, overseeing the running of the Resources Room and maintaining intranet-related resources for residents. They are also required to provide technical assistance at functions where required and report to the Master and Dean.

NARC Co-ordinators are provided with accommodation on campus at a discounted rate for the period of their appointment. They are expected to reside at the college for the duration of their appointment.

NARC Co-ordinators generally have a one year appointment starting at the beginning of the first semester to the final official day of the exam period in the final semester.

Other information regarding tutors and advisers

Tutors and advisers are required to apply for their positions and are selected by the Master and Dean. Tutors and advisers need to reapply for their roles to renew their one-year appointment.

Tutors and advisers sign the standard residence agreement that other residents sign. The key terms for the membership contract are as follows:

● The 38 week contract entitles residents to two periods of residency.

● The contract period can be varied with written approval from the Master.

● Requests for additional periods of accommodation should be made to the Dean and are treated as casual bookings.

● A holding deposit must be paid upon signing the contract.

● Fees can be paid upfront or on an instalment plan.

● Residents who have agreed to a contract but then apply to withdraw from it (for reasons other than missing out on a place at the University) will usually lose their bond and may be held responsibly to pay the contract fees in full.

● Residents make an undertaking upon signing the contract that if they permanently leave the College before the contract ends, they accept liability for all remaining fees on their account.

Tutors and advisers from the Undergraduate campus are usually in their second year of university and second year of residence at the college. Tutors and advisers from the Postgraduate campus are usually postgraduate students in their second year of residence.

All tutors and advisers have the option to stay in their allocated accommodation over the mid-year vacation at the rate charged to other residents. When tutors and advisers vacate their accommodation over the mid-year break or summer vacation period, they must follow formal procedures to vacate their rooms and return the keys to the College. Where they vacate the accommodation, they have the option to leave their personal belongings in a locked cupboard or elsewhere on campus.

Tutors and advisers generally live on their own with occasional guests, though some occupy their residence with their spouses.

Other information regarding the accommodation

The accommodation at the Undergraduate campus is made up of the following rooms:

● Single study bedrooms: These rooms consist of a single bedroom. Residents of these rooms share a common room, bathroom, laundry, kitchen and recreation facilities. ATs and SATs are disbursed between these bedrooms.

● Single study bedrooms with an ensuite: These rooms consist of a single bedroom and ensuite bathroom. Residents of these rooms share a common room, laundry, kitchen and recreation facilities. ATs and SATs are disbursed between these bedrooms.

● Single study bedroom with a consultation room and ensuite: These rooms consist of a single bedroom, consulting room and ensuite bathroom. Residents of these rooms share a common room, laundry, kitchen and recreation facilities. These rooms are entirely occupied by RAs and SRAs (other than during the summer vacation or other university breaks when the rooms are vacated and advertised for lease to the public).

● Five self-contained guest rooms that tutors and advisers do not occupy.

● The accommodation at the Postgraduate campus is made up of the following rooms:

● Self-catered studios: These rooms consist of either one or two bedrooms, a kitchenette and ensuite bathroom. Residents of these rooms share a common room, laundry and recreation facilities. ATs and SATs are disbursed between these rooms.

● Single bedroom apartments with an ensuite: These rooms consist of a single bedroom and ensuite bathroom. Residents of these rooms share a common room, laundry, kitchen and recreation facilities. ATs and SATs are disbursed between these rooms.

● Self-catered studios with consulting room and an ensuite: These rooms consist of a single bedroom, consulting room, kitchenette and ensuite bathroom. Residents of these rooms share a common room, laundry and recreation facilities. These rooms are entirely occupied by RAs and SRAs (other than during the summer vacation or other university breaks when the rooms are vacated and advertised for lease to the public).

● One guest room that tutors and advisers do not occupy.

The accommodation provided to tutors and Summer RAs is the same as accommodation provided to other residents on campus. There are no set rooms allocated to them, they simply occupy whichever rooms are available. During the summer vacation and during other breaks when tutors have vacated the premises of their belongings, the rooms are advertised for use by the general public.

RA/SRA rooms at the Undergraduate campus

In the Undergraduate campus, the RA/SRA rooms consist of a bedroom (identical to other rooms available to residents); however there is an ensuite and a consultation room attached for taking pastoral care visits. The attached consulting room and ensuite are completely separate to the bedroom and can be locked off from the bedroom. They are accessible by other residents at all times, in essence acting as a common room for students when required (such as to heat up their lunch in the microwave).

RA/SRA rooms at the Postgraduate campus

In the Postgraduate campus, the RA/SRA rooms consist of a bedroom and ensuite (similar to other rooms available to residents); however, they also have an attached consulting room for taking pastoral visits which is partially closed off from the bedroom. The attached consulting room is primarily for use in taking pastoral visits from other residents; however, it does in some instances get used by the RA/SRA for personal use as well.

Relevant legislative provisions

Fringe Benefits Tax Assessment Act 1986 section 25

Fringe Benefits Tax Assessment Act 1986 paragraph 26(1)(b)

Fringe Benefits Tax Assessment Act 1986 section 45

Fringe Benefits Tax Assessment Act 1986 subsection 136(1)

Fringe Benefits Tax Assessment Act 1986 section 137

Reasons for decision

Question 1

Summary

Tutors and advisers at the College are considered employees for the purposes of the FBTAA 1986.

Detailed reasoning

An employee is defined in subsection 136(1) to be:

(a) a current employee;

(b) a future employee; or

(c) a former employee.

Subsection 136(1) also sets out that a current employee is someone who receives, or is entitled to receive, salary or wages.

Section 137(1) further expands this to include persons who receive non-cash remuneration in circumstances where the person would have been treated as an employee if the non-cash remuneration had been received by way of a cash payment.

The Terms of Appointment for tutors and advisers indicate they are contracted to undertake specific duties as outlined in the relevant facts and circumstances above.

Although the tutors and advisers are not paid salary or wages, if the accommodation discount was provided by way of a cash payment, it would constitute salary or wages.

Accordingly, the tutors and advisers are deemed to be employees under subsection 137(1).

Question 2

The differing factor between scenarios (a), (b), (c) and (d) is where the tutor or adviser goes during university breaks. While this is a relevant consideration, the Commissioner considers that it is not a determinative factor. As such, all scenarios will be addressed together in the detailed reasoning below.

Summary

The College is the usual place of residence for tutors and advisers in scenarios (a), (b), (c) and (d).

Detailed reasoning

A housing benefit is defined in section 25 of the FBTAA as the subsistence of a housing right during the year of tax.

‘Housing right’ is defined under subsection 136(1) to mean a lease or licence granted to the person to occupy or use a unit of accommodation insofar as that lease or licence subsists at a time when the unit of accommodation is the person's usual place of residence.

A housing benefit arises in accordance with section 25 where an employee is provided with the right to use a unit of accommodation and the lease or licence which grants that right exists at a time when that unit of accommodation is the usual place of residence of the employee.

If the unit of accommodation is not the employee's usual place of residence, the right to use the unit is not a housing benefit. However, it may give rise to a residual fringe benefit in accordance with section 45.

It is therefore necessary to determine whether the accommodation at the College is the usual place of residence for tutors and advisers in order to ascertain the type of benefit that is provided.

Whether a place is an employee's usual place of residence is a question of fact, based on all the circumstances.

Usual place of residence

The FBTAA does not define ‘usual place of residence’, however subsection 136(1) provides that a ‘place of residence’ in relation to a person means:

(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.

Whether a place is a person’s usual place of residence will depend on the facts of that particular case.

Case N31 81 ATC 167 (Case N31) considered the usual place of abode of a single man of 24 years of age. The taxpayer in this case was employed as an engineer with a construction company who transferred temporarily to Sydney to work on projects. Prior to moving to Sydney, he was renting a house in Perth with two other young men, where he left some of his personal possessions upon moving to Sydney. The Tribunal held that while the taxpayer returned to Perth on a number of occasions during his temporary stay in Sydney and had a genuine and sincere intention to return there, they considered that his degree of connection with his Perth house was too tenuous to call it his abode. At paragraphs 22 to 26, the Board said:

22. Posed for our consideration in the instant case is the question of the taxpayer's usual place of abode. Had his Sydney flat become his usual place of abode, or could it be said that his links with the house in the suburb of Q in Perth still determined that city as his usual place of abode even though he resided in Sydney, albeit on a temporary basis? From a study of the criteria employed in Applegate's case, it would seem to us that the taxpayer's flat in Sydney was his usual place of abode in the year of income because he lived there continuously and for the greater part of that period, he had personal belongings there, he derived his income in Sydney, and there existed a legal relationship in regard to his Sydney abode as exemplified by his agreement to rent it. On the other hand, even during the time he lived in Sydney he maintained links with the house in Perth in that he kept some items of furniture there, and called in there when returning on holidays to Western Australia which he did on three separate occasions during his stay in Sydney. Also, it was always his intention to return there once he completed his assignment in Sydney…

23. Whilst it was the taxpayer's clear intention to return to Perth, that intent can have no over-riding weight in our considerations (refer Applegate's case (supra) at p. 4309). Also, it was quite possible that the taxpayer could have been transferred to a work site in a State other than Western Australia upon completing his assignment in Sydney. Furthermore, it is worth noting that a taxpayer can be held to reside in a particular place even though he has no intention of remaining permanently in that place (ref. F.C. of T. v. Miller (1946) 73 C.L.R. 93 at p. 99).

24. Given that the taxpayer was a young single man of 24 years of age, and perhaps thereby having tap roots of shallower depth (wherever he might reside) than if he were a married man with young children and paying off a mortgage on the matrimonial home, we are able to accept the proposition that his usual place of abode was Perth simply on the grounds that he kept in a house there a bed and a wardrobe and that this was augmented by an intention to return there once he completed his term of service in Sydney. The fact that possessions were left in a previous abode was not persuasive in causing the No. 1 Board, as then constituted, in (1959) 10 T.B.R.D. 330 Case K64, to determine that place as the taxpayer's ``usual place of abode''. The same view was adopted by the No. 3 Board, as then constituted, in Case H3, 76 ATC 9. In our view, the taxpayer had to possess at the very least some possessory rights in connection with the Perth house in order to advance his claim, but no such rights existed.

25. In the reference (1951) 2 T.B.R.D. 201 Case B47, the No. 2 Board, as then constituted, canvassed the view whether a taxpayer might not have two places of abode leading to examination of the further question as to which of the two might be the more permanent and therefore ``usual'', but here we consider that the taxpayer's degree of connection with the Perth house was so tenuous as to involve stretching the English language to unpardonable limits to call it his abode at all.

26. The evidence showed that the taxpayer returned to his home State on a number of occasions during his temporary stay in Sydney, and doubtless he regarded Perth in the abstract as his home city, his intention to return there being completely genuine and sincere. However, those considerations fall a long way short of enabling him to call a particular house in Perth his usual place of abode (ref. Cases K64 and H3, supra). We have little difficulty in finding that his usual place of abode for the year of income in question was Sydney.

Case R99 84 ATC 650 (Case R99) also considered the concept of ‘usual place of abode’ in relation to a man who lived with his parents in Sydney but was transferred to Avoca Beach in June 1981 for work. In this case, the taxpayer travelled back to Sydney most weekends principally to visit his fiancé. On those occasions, he resided with his parents and had his personal washing done there. Chairman H.P. Stevens held that the taxpayer’s degree of contraction with his parents’ home was far less tenuous than the circumstances in Case N31.

It is important to note that in Case R99, the taxpayer had purchased a block of land in Avoca Beach in 1976 with a view of establishing his matrimonial home there, which he eventually built in moved in in July 1982. Chairman H.P. Stevens said at paragraph 22:

Turning now to the question of the taxpayer's usual place of abode, there is no doubt it was, in early June 1981, his parents' home in Sydney and, as from July 1982, his house at Avoca Beach but what was it during the period he ``boarded'' at Avoca Beach, having his house erected there and working away from Sydney? The evidence does not establish other than that it was a happy coincidence that his employer sent the taxpayer to work in an area where he intended to ultimately permanently reside - the situation might be different if he had actively sought a transfer to the area. Also it establishes the project was an indefinite one likely to have been terminated at any stage so far as the taxpayer was concerned, with him returning in that event to live at his parents' home in Sydney. Accordingly, I do not see this reference as being able to be placed in the category of cases where a single person has accepted a permanent position away from the parental home and town. I have no doubt he intended ultimately to abandon his parents' home as his usual place of abode but I do not think the evidence enables a finding that he had actually abandoned it during the year of income.

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 56 and 57 Deputy President S A Forgie said:

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 undertaking this exercise, it could easily be concluded that the place at which a person is required to live in order to perform the duties of employment has become the person's usual place of residence. That comes about because of the extended meaning given to the expression "place of residence" in s 136(1) of the FBTA Act. It includes not only the place at which the person resides as it does in the general law but extends to a place at which the "person has sleeping accommodation". In both instances, it includes them whether on a "permanent or temporary basis". Under this definition, a person who is required to travel to a place of work and to stay in dormitory accommodation, for example, for extended and regular periods of time would have a place of residence in light of the definition. If the periods away from the place of work were short even if regular, the dormitory accommodation would be a place of residence that could also be said to be the person's "usual" place of residence. It would be "usual" in the sense that it would be customary and regular and would have that characterisation even when the person maintained another place of residence that could also be described as usual.

Draft Taxation Ruling TR 2017/D6 Income tax and fringe benefits tax: when are deductions allowed for employees’ travel expenses? (TR 2017/D6) discusses what is meant by the term 'usual place of residence' at paragraphs 75 to 85. In TR 2017/D6, the question of whether an employee is living away from their usual place of residence involves a consideration of two places of residence - the place where the employee is living at the time, and some other place. An employee is regarded as living away from their usual place of residence if they would have continued to live at the former place had the duties of their employment not required them to work temporarily in the new locality.

In consideration of the above cases and TR 2017/D6, the Commissioner considers that the usual place of residence of tutors and advisers is the College.

While tutors and advisers are required to live on campus during the period of their appointment, they had already lived at the College for at least a year before their appointment and would have lived at the College regardless of their employment as tutors and advisers due to their resident membership with the College as students. The residents at the College are required to enter into a membership contract with the College; this is the same contract that tutors and advisers are required to sign. The membership contract is akin to a lease contract. Upon entering the contract, residents must accept full responsibility for all fees payable under the terms of the contract. Withdrawing from the contract may result in loss of the holding deposit and residents may be held responsible to pay the contract fees in full. The obligations under the membership contract suggest that students cannot leave the College without incurring financial penalties. This contractual relationship to reside at the College lends weight to the College being considered their usual place of residence.

Tutors and advisers receive discounted board and accommodation rather than a cash payment as compensation for their duties. This form of compensation can only benefit someone who already intended on living at the College. The fact that tutors and advisers are required to apply for their positions in order to receive this benefit supports the Commissioner’s view that the College is their usual place of residence, as they actively sought out these positions with full knowledge of the requirement to continue to reside at the College.

Tutors and advisers reside at the College during the academic year while they undertake their university studies. It is where they eat or cook their meals, do laundry and have sleeping accommodation for the majority of the year. The College is where they keep their personal belongings and when they are required to vacate during the university breaks, they have a means of storing their personal belongings on campus. While tutors and advisers may go back to their family home (or go to another location) during university breaks, they ultimately return back to the College to resume their studies. The opportunity for the tutors and advisers to go back to the family home during the period of their appointment arises only three times a year, being the two mid-semester breaks and the mid-year break. This is unlike the taxpayer in Case R99 who returned to the parental home on a regular basis. The degree of connection to the family home is even more tenuous for Summer RAs who reside at the College for the entire year, and for RAs and SRAs who are required to obtain permission if they wish to be away from the campus overnight.

While some possessions are left in the family home, the Commissioner considers that the links that tutors and advisers have to the family home are not sufficient to conclude that it is their usual place of residence. Their intention to reside at the College regardless of their appointment, in conjunction with all the above factors considered as a whole, strongly suggest that the College is where tutors and advisers would ordinarily reside during the academic year. The intention of tutors and advisers to return to their family homes over the summer vacation period does not have over-riding weight in our considerations. Accordingly, the usual place of residence for tutors and advisers is the College for the period of their appointment.

Question 3

Summary

The accommodation provided to tutors and advisers is identical or similar to the accommodation offered to outsiders.

Detailed reasoning

The taxable value of accommodation provided in a caravan, mobile home, hotel, motel, hostel or guesthouse where the person providing the benefit is carrying on a business of providing such accommodation to the public is calculated in accordance with paragraph 26(1)(b).

The Macquarie Dictionary, [Online], viewed 15 May 2018, www.macquariedictionary.com.au, defines ‘hostel’ as:

1. a supervised place of accommodation, usually supplying board and lodging, provided at a comparatively low cost, as one for students, nurses, etc. …

The accommodation provided at the College is hostel-style accommodation consisting of board and lodging. This meets the ordinary meaning of the term ‘hostel’. Under sub-paragraph 26(1)(b)(iv) the taxable value of the recipient’s accommodation is 75% of the market rental value in a case where,

..if the fringe benefit were not a housing fringe benefit, it would be an in-house residual fringe benefit…

An in-house residual fringe benefit is defined in subsection 136(1) as follows:

in relation to an employer, means a residual fringe benefit in relation to the employer:

(a) where both of the following conditions are satisfied:

(i) the provider is the employer or an associate of the employer;

(ii) at or about the comparison time, the provider carried on a business that consisted of or included the provision of identical or similar benefits principally to outsiders; or

(b) …

but does not include a benefit provided under a contract of investment insurance.

In order to determine the taxable value of any housing fringe benefits, it is necessary to consider whether the accommodation provided to the tutors and advisers is identical or similar to the accommodation provided to outsiders.

The terms identical and similar are not defined in the FBTAA and therefore take their ordinary meaning.

The Macquarie Dictionary, [Online], viewed 15 May 2018, www.macquariedictionary.com.au, defines ‘identical’ as:

1. (sometimes followed by to or with) corresponding exactly in nature, appearance, manner, etc.: this leaf is identical to that.

2. the very same: I almost bought the identical dress you are wearing…

‘Similar’ is defined as:

1. having a likeness or resemblance, especially in a general way...

The term ‘identical benefit’ is defined in subsection 136(1) as:

in relation to a recipients benefit in relation to a residual fringe benefit, means another benefit that is the same in all respects, except for differences (if any) that are minimal or insignificant and do not affect the value of the other benefit.

This is consistent with the ordinary meaning of identical.

The term ‘outsiders’ is defined in subsection 136(1), in relation to the employment of an employee of an employer, means a person not being:

(a) an employee of the employer;

(b) an employee of an associate of the employer;

(c) an employee of a person (in this definition referred to as the provider) other than the employer or an associate of the employer who provides the benefits to, or to associates of, employees of the employer or an associate of the employer under an arrangement between:

(i) the employer or an associate of the employer; and

(ii) the provider or another person; or

(d) an associate of an employee to whom any of the preceding paragraphs apply.

The College provides accommodation and care for students at the University. The guests that stay at the College are generally students of the University but also include people attending conferences during the university holiday periods or people undertaking casual stay. These guests are considered ‘outsiders’ within the definition under subsection 136(1).

Tutors

The accommodation provided to tutors and Summer RAs is the same as accommodation offered to the guests of the College, that is, other students residing at the College and outsiders during the summer vacation period. As such, the accommodation offered to tutors and Summer RAs is identical to accommodation offered to outsiders.

Advisers

The accommodation provided to advisers (except Summer RAs) is slightly different to the accommodation provided to other students of the University due to the nature of their roles.

At the Undergraduate campus, the rooms provided have a consulting room and ensuite attached which is considered public space and accessible by other residents on the floor. At the Postgraduate campus, the rooms provided have an additional consulting room attached to allow RAs and SRAs to take pastoral visits from other residents.

The Commissioner considers that the accommodation offered to RAs and SRAs is similar to accommodation offered to outsiders.