ATO ID 2013/43: Living-away-from-home allowance fringe benefits: fly in fly out and drive in drive out requirements
Date of decision: 15 July 2013
Year of income: Year ending 31 March 2014
Business line: Private Groups and High Wealth Individuals

Issue
Will the requirements of subparagraph 31E(a)(i) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA) be satisfied where an employee during the period of their employment tenure works for five and half days and remains on call on the seventh day?

Decision
No. The requirements of subparagraph 31E(a)(i) of the FBTAA specify that the employee must, on a regular and rotational basis work for a number of days and have a number of days off.

Facts
An employee who is in receipt of a living-away-from-home allowance is seconded to Australia. The employee's working conditions are such that for a period of 6 months they work from 7am to 5pm for five days and on the sixth day from 8am to 2.00pm. On the seventh day the employee is required to be on call so that they can monitor e-mails and be available to deal with issues that may arise from overseas projects. No other employee performs the duties of their employment on the seventh day. At the completion of the 6 month period they return to their normal country of residence for a period of 15 days and then return to Australia for another period of 6 months. The employee is not working in a remote area meaning that the principles of Taxation Determination TD94/96 do not apply.

Reasons for decision
Summary: The requirements to be met for an employee to be considered to be a fly-in fly-out and drive-in drive-out employee are set out in section 31E of the FBTAA. Subparagraph 31E(a)(i) states: The employee satisfies this section if: (a) the employee, on a regular and rotational basis: (i) works for a number of days and has a number of days off (but not the same days in consecutive weeks); and (ii) ... The meaning of 'regular and rotational basis' is not defined in the FBTAA. Therefore, it is relevant to consider the ordinary meanings of the terms 'regular' and 'rotational' in the context in which they are used in the FBTAA. The Macquarie Dictionary [Multimedia], version 5.0.0, 01/10/01 ( Macquarie Dictionary ), defines 'regular' as: usual; normal; customary; conforming in form or arrangement; characterised by fixed principle, uniform procedure, etc; recurring at fixed times; periodic; adhering to rule or procedure. The word "rotational" in the employment context is defined in the Cambridge Dictionaries Online as: relating to a system in which the person who does a particular job is regularly changed: The shifts work on a rotational basis. Depending on the department, some recruits will participate in rotational placements. The employee performs the duties of their employment on the basis that they alone are responsible for the day to day operations for which they are employed. The employee does not job share nor does anyone else perform the duties of that employee's employment when they are on call on the seventh day. For the time that they are in receipt of a living-away-from-home allowance, the employee remains solely responsible for performing the duties of their employment, and as such is not working on a regular and rotational basis. Accordingly the requirements of subparagraph 31E(a)(i) of the FBTAA have not been met.

Legislative references: Fringe Benefits Tax Assessment Act 1986 section 31E paragraph 31E(a) subparagraph 31E(a)(i)
Other references: The Macquarie Dictionary [Multimedia], version 5.0.0, 01/10/01 Cambridge Dictionaries Online, Cambridge Business English Dictionary, Cambridge University Press 2013
Subject references: Fringe benefits tax FBT living-away-from-home Living-away-from-home allowance fringe benefits