Case: CTC Resources NL v Commissioner of Taxation (1994) 48 FCR 397
Outcome: cited
The application to the Commissioner for a private ruling, and the subsequent ruling by the Commissioner in response to that application, were in accordance with Pt IVAA TA Act . This Part was repealed by Sch 2 of Tax Laws Amendment (Improvements to Self Assessment) Act (No 2) 2005 (No 161 of 2005). The submissions of the parties in this case have been on the basis of this superseded legislation, and to the extent necessary I shall apply those provisions. In any event, the framework for private rulings delivered by the Commissioner (which continues now in Sch 1 Div 359 TA Act, legislation not relevant to this application) is well known. As Hill J noted in CTC Resources NL v Commissioner of Taxation (1994) 48 FCR 397 at 423, the legislation confers upon a person the right to apply to the Commissioner for a private ruling upon the way in which, in the Commissioner's opinion, a tax law would apply (cf s 14ZAF TA Act ). 27 The key legislative provision for the purposes of this application is s 136(1) FBTAA , specifically the definition of 'fringe benefit'. So far as relevant, the definition reads as follows: 'fringe benefit , in relation to an employee, in relation to the employer of the employee, in relation to a year of tax, means a benefit: (a) provided at any time during the year of tax; or (b) provided in respect of the year of tax; being a benefit provided to the employee or to an associate of the employee by: (c) the employer; or (d) an associate of the employer; or (e) a person (in this paragraph referred to as the arranger ) other than the employer or an associate of the employer under an arrangement covered by paragraph (a) of the definition of arrangement between: (i) the employer or an associate of the employer; and (ii) the arranger or another person; or (ea) a person other than the employer or an associate of the employer, if the employer or an associate of the employer: (i) participates in or facilitates the provision or receipt of the benefit; or (ii) participates in, facilitates or promotes a scheme or plan involving the provision of the benefit; and the employer or associate knows, or ought reasonably to know, that the employer or associate is doing so; in respect of the employment of the employee, but does not include: (f) ... (g) ... (h) ... (ha) a benefit constituted by the acquisition by a person of a share or right under an employee share scheme (within the meaning of Division 13A of Part III of the Income Tax Assessment Act 1936 ); ... ...' 28 As made clear by the definition, a benefit may be provided to the employee or to an associate of the employee, not only by the employer, but o by an associate of the employer; or o by an unassociated third party who nonetheless has a connection with the employer or the employer's associate, described as the 'arranger', or o by an unassociated third party in circumstances where the employer or the employer's associate nonetheless participates in or facilitates the provision or receipt of the benefit or promotes a scheme or plan involving the provision of the benefit. 'Employee ' within the terms of the FBTAA is defined by s 136(1) FBTAA as: (a) a current employee; (b) a future employee; or (c) a former employee.