ATO ID 2001/543: FBT: Exempt Benefits - Work-related Counselling
Date of decision: 17 September 2001
Year of income: Year ending 31 March 2002 Year ending 31 March 2003 Year ending 31 March 2004
Business line: Private Groups and High Wealth Individuals

Issue
Is the quit-smoking program in the nature of work-related counselling and thus an exempt benefit under section 58M of the Fringe Benefits Tax Assessment Act 1986 (FBTAA)?

Decision
Yes. The quit-smoking program is in the nature of work-related counselling and as such is an exempt benefit under section 58M of the FBTAA.

Facts
An employee attends a structured quit-smoking program which provides counselling services to assist the employee to stop the habit of cigarette smoking. The employer has a non-smoking policy for the workplace. Smoking in the workplace is considered a health hazard for employees and is therefore an occupational health and safety issue. The non-smoking policy is devised to improve or maintain the quality of the employee's performance at work. The reason for the attendance of the employee at a quit-smoking program is to improve or maintain the employee's health. As part of the employer's non-smoking policy, the employer will assist employees to quit smoking by reimbursing all or part of the program fees for any employee who can remain a successful non-smoker for at least three months after completing the program. The benefit which is available to any employee is not part of any salary packaging arrangement and is not provided as a reward for services rendered or to be rendered by the employee.

Reasons for decision
Summary: The reimbursement of all or part of the program fee by the employer to the employee is an expense payment benefit as defined in section 20 of the FBTAA. If the expense payment benefit is one where the employee's expenditure was for "work-related counselling", then the expense payment benefit will be an exempt benefit under section 58M of the FBTAA. In order to fall within the definition of "work-related counselling" under subsection 136(1) of the FBTAA, a number of conditions must be met. The employee has attended the quit-smoking counselling session as required under paragraph 136(1)(a) of the FBTAA. The employee's attendance at the quit-smoking counselling session forms part of the employer's non-smoking policy which is devised to improve or maintain the quality of the performance of its employees' duties as required under paragraph 136(1)(c) of the FBTAA. The quit-smoking counselling session relates to health matters as required under paragraph 136(1)(d) of the FBTAA. The expense payment benefit is not provided wholly or principally as a reward for services rendered or to be rendered by the employee as required under paragraph 136(1)(e) of the FBTAA.

Legislative references: Fringe Benefits Tax Assessment Act 1986 section 20 section 58M subsection 136(1) paragraph 136(1)(a) paragraph 136(1)(c) paragraph 136(1)(d) paragraph 136(1)(e)
Related public rulings and determinations: TD 93/153
Other references: National Taxation Liaison Group FBT Sub-Committee - Minutes of Meeting 22 February 2001
Subject references: Expense payment fringe benefits Exempt benefits Fringe benefits tax Fringe benefits FBT reimbursements FBT salary sacrifice FBT work related counselling