Private ruling: FBT, employer sponsored visa and payment of SAF Levy
Date of advice: 12 December 2019
Published: February 2020
Ruling period: FBT year ended 31 March 2019 | FBT year ended 31 March 2020 | FBT year ended 31 March 2021 | FBT year ended 31 March 2022 | FBT year ended 31 March 2023
Date scheme commenced: 1 April 2018

Ruling: Q1: Is the provision of a sponsored visa to a skilled worker, which is not in respect of relocation transport, a fringe benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986? | A1: Yes | Q2: Is the payment of the Skilling Australians Fund (SAF) levy as a consequence of sponsoring a skilled worker, which is not in respect of relocation transport, a fringe benefit? | A2: The payment of SAF Levy as a consequence of sponsoring a skilled worker, which is not in respect of relocation transport, is not a fringe benefit. | Q3: What is the taxable value of the fringe benefit constituted by the provision of a sponsored visa to a skilled worker, which is not in respect of relocation transport? | A3: The taxable value of the fringe benefit provided in the form of the sponsored visa is the amount of the Application Fees, not including the SAF Levy.

Relevant facts and circumstances: 1. A Ltd (the employer) employs some of its staff on sponsored work visas. Sponsored workers 2. Employers can sponsor an individual and their family members to come to, or remain in, Australia temporarily or permanently (depending on the nominated occupation) to fill a skilled role within a business that appears on the Australian Government approved occupations list. 3. The Department of Home Affairs (the Department) is responsible for immigration and customs border policy, including sponsored visas. 4. The employer is required to pay certain application costs when nominating a visa applicant for a sponsored visa. The employer is also required to pay the Skilling Australians Fund (SAF) Levy. Approved Sponsor Fee 5. In order to sponsor a skilled worker under the Temporary Skilled Shortage visa (subclass 482) (TSS visa), the employer must become an approved Standard Business Sponsor or Accredited Sponsor. The employer is required to pay a one-off application fee of $420 when applying to become an approved sponsor. Once approved, the employer is permitted to sponsor employees during the duration of the sponsorship (usually five years). Nomination and Visa Application Fees 6. The current nomination and application fees (Application Fees) are: · Nominating a visa applicant for the TSS visa: - Short-term list occupation: $330 nomination fee + $1,265 visa application fee + $1,265 for each additional applicant over 18 years of age + $320 for each additional applicant under 18 years of age; or - Medium-term list occupation: $2,645 visa application fee + $2,645 for each additional applicant over 18 years of age + $660 for each additional applicant under 18 years of age; and · Nominating a visa applicant for the Employer Nomination Scheme visa (subclass 186) (ENS visa): $540 nomination fee (subject to location) + $4,045 base via application charge + $2,025 per additional application over 18 years of age + $1,010 for each additional applicant under 18 years of age. 7. With reference to the TSS visa, the employer must pay the nomination portion of the Application Fees for making an application to sponsor a visa applicant. The employer cannot transfer this portion of the Application Fees to the visa holder or their family members. 8. With reference to the ENS visa, the employer does not have the same obligation to pay the nomination costs associated with the application to sponsor a visa applicant. The sponsor is not obliged to cover any of the Application Fees. 9. The Application Fees are not refundable if the visa application is unsuccessful. SAF Levy 10. The SAF Levy contributes to the SAF operated by the Department of Education and Training (the DET), with the aim to grow apprenticeships and trainee programs to support Australian jobs and growth. 11. The SAF provides funding for apprenticeships and traineeships in occupations that are in high demand and currently rely on skilled immigration or have future growth potential, including in regional Australia. 12. From 12 August 2018, the SAF Levy replaced the Training Benchmark requirement under the Sponsorship Obligations Framework arising in respect of previous temporary work visas (employers sponsoring a worker under the subclass 457 visa or nominating a worker under the Temporary Transition stream or Direct Entry stream of the subclass 186 visa). The previous training benchmark obligations required employers to spend: · The equivalent of at least two per cent of their business' recent payroll in contributions to a specified industry training fund (training benchmark A); or · The equivalent of at least one per cent of their business' recent payroll on the training of Australians (training benchmark B). 13. As noted in the 2017 Regulation Impact Statement (OBPR ID 21946): 69. The proposed new training fund contribution model aims to make compliance and monitoring simpler by removing the need to maintain complex records to demonstrate expenditure to meet the current training benchmark requirements, and replacing it with a levy paid to the Skilling Australians Fund (SAF). 14. Employers who nominate workers for temporary or permanent skilled work visas are liable to pay the nomination training contribution charge (i.e. SAF levy), pursuant to section 140ZM of the Migration Act 1958. 15. The SAF Levy is imposed by the Migration (Skilling Australians Fund) Charges Act 2018 (the SAF Charges Act). 16. The amount of the SAF Levy is prescribed in the Migration (Skilling Australians Fund) Charges Regulations 2018 (the SAF Charges Regulations) as follows: · Nominations that relate to temporary visas incur a charge of $1,200 per year for the proposed visa period or, for businesses with an annual turnover of at least $10 million, a charge of $1,800 per year for the proposed visa period. This charge applies to nominations for the purpose of the new TSS visa; · Nominations that relate to permanent visas incur a once only charge of $3,000 or, for businesses with an annual turnover of at least 10 million, a once only charge of $5,000. This charge applies to nominations for the purpose of the Subclass 186 (Employer Nomination Scheme) visa (Subclass 186) and the Subclass 187 (Regional Sponsored Migration Scheme) visa (Subclass 187). 17. The employer of a sponsored worker is liable for the SAF Levy and must not pass the SAF Levy onto the visa applicant (subsection 140HA(1) Migration Act 1958 and Regulation 2.87 of the Migration Regulations 1994). 18. The SAF Levy may be refunded to the employer in certain cases, for example where the sponsorship and visa applications are approved, but the overseas skilled worker does not commence employment with the employer. Offer to A Ltd employees 19. The employer provides visa support to a number of employees. 20. In particular, the employer sponsors a number of employees, and their family members, to obtain either an ENS visa or a TSS visa. 21. The employer pays the Application Fees to the Department to sponsor visas for the skilled employees to commence, or remain in, work with the employer, as well as Application Fees for their family members. 22. The Application Fees payable by the employer depends on the type of visa: · Nominating a visa applicant for the TSS visa: - Short term list occupation: $330 nomination fee + $1,265 base visa application fee + $1,265 for each additional applicant over 18 years of age + $320 for each additional applicant under 18 years of age; or - Medium term list occupation: $2,645 base visa application fee + $2,645 for each additional applicant over 18 years of age + $660 for each additional applicant under 18 years of age; and · Nominating a visa applicant for the ENS visa: $540 nomination fee (subject to location) + $4,045 base visa application charge + $2,025 per additional applicant over 18 years of age + $1,010 for each additional applicant under 18 years of age. 23. In addition, the employer is liable for the SAF Levy: · Nominations that relate to the TSS visa incur a charge of $1,800 per year for the proposed visa period (based on the current annual turnover of the business); or · Nominations that relate to the ENS visa incur a once only charge of $5,000 (based on the current annual turnover of the business). 24. The SAF Levy is paid to the Department at the time the visa application is submitted, however the SAF is separately managed by the DET.

Relevant legislative provisions: Fringe Benefits Tax Assessment Act 1986 section 45 | Fringe Benefits Tax Assessment Act 1986 section 51 | Fringe Benefits Tax Assessment Act 1986 subsection 136(1) | Fringe Benefits Tax Assessment Act 1986 subsection 149(1)

Reasons for decision: Summary: The provision of a sponsored visa to a skilled worker, which is not in respect of relocation transport, is a residual fringe benefit. | Detailed Reasoning - Is there a fringe benefit?: Subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (FBT Act) defines 'fringe benefit' 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: ... (g) a benefit that is an exempt benefit in relation to the year of tax; or | Detailed Reasoning - Is there a benefit?: The first step is to consider whether the provision of a visa is a "benefit" as defined in subsection 136(1) of the FBT Act. Subsection 136(1) states: benefit includes any right (including a right in relation to, and an interest in, real or personal property), privilege, service or facility and, without limiting the generality of the foregoing, includes a right, benefit, privilege, service or facility that is, or is to be, provided under: (a) an arrangement for or in relation to: (i) the performance of work (including work of a professional nature), whether with or without the provision of property; (ii) the provision of, or of the use of facilities for, entertainment, recreation or instruction; or (iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; ... The provision of a visa is a right or privilege provided under an arrangement for or in relation to the performance of work, and is thus a benefit within this definition. | Detailed Reasoning - Is there benefit provided to an employee?: The visa is provided to an employee, therefore this requirement is met. In addition, a benefit provided to an associate of an employee, being the inclusion of a family member on the visa application and the payment of the related Application Fees, is also included within the definition of fringe benefit. Is the benefit provided by the employer, an associate of the employer or a third party in a situation that comes within the 'fringe benefit' definition under either paragraphs 136(1)(e) or 136(1)(ea)? The terms 'provide' and 'provider' are defined in subsection 136(1) of the FBT Act as follows: Provide: (a) In relation to a benefit - includes allow, confer, give, grant or perform; Provider, in relation to a benefit, means the person who provides the benefit. The visa is granted to employees by the Minister or the Minister's delegate under the Migration Act 1958 . As the Minister or the Minister's delegate is not the employer or an associate of the employer, it is necessary to consider the application of paragraphs (e) and (ea) of the 'fringe benefit' definition in subsection 136(1) of the FBT Act. Paragraph (e) of the 'fringe benefit' definition in subsection 136(1) applies where the benefit Is provided by a person who is not the employer or an associate of the employer under an arrangement covered by paragraph (a) of the 'arrangement' definition in subsection 136(1). Paragraph (a) of the 'arrangement' definition in subsection 136(1) states that an arrangement is: Any agreement, arrangement, understanding, promise or undertaking, whether express or implied, and whether or not enforceable, or intended to be enforceable, by legal proceedings. This requirement will be satisfied as the visa is provided under an agreement or arrangement, being the visa sponsorship application that the employer has with the Minister and the Department. | Detailed Reasoning - Is the benefit provided in respect of the employee's employment?: The visa is provided in respect of the employee's employment as it is provided for the skilled visa applicant to commence, or remain in, work as an employee in Australia. | Detailed Reasoning - Does the benefit come within the exclusions from the 'fringe benefit' definition under paragraphs 136(1)(f) to 136(1)(s)?: The benefit does not come within one of the exclusions from the 'fringe benefit' definition under paragraphs 136(1)(f) to 136(1)(s) of the FBT Act. Most relevantly, the benefit is not an exempt benefit under paragraph 136(1)(g). In particular, it is not an exempt benefit provided in respect of relocation transport under section 58F of the FBT Act. ATO Interpretive Decision 2013/35 dealt with the scenario where if an employer pays the costs of a visa application for a non-resident employee to remain in Australia, would the benefit be provided in respect of relocation transport and be exempt under section 58F of the FBT Act? We decided in this ATO ID that as the employee is already living in Australia, the benefit is not provided in respect of the provision of transport. Therefore, the benefit is not provided in respect of relocation transport and is not an exempt benefit under section 58F of the FBT Act. In making this decision, we noted that only visa application costs that are incurred for the purpose of an employee taking up residence in the locality of a new work place will be in connection with transport. In this instance, the employee applied for a visa in order to remain in Australia. At the time, the employee was already living in Australia. The visa application costs were not incurred for the purpose of the employee taking up residence in the locality of a new work place. Therefore, the costs are not 'in connection with transport' for the purposes of subsection 142A(1) of the FBTAA or 'in respect of the provision of transport' for the purposes of paragraph 143A(a)(2) of the FBTAA. Consequently, the provision of a visa by the Minister or the Department to an employee or their family members is a fringe benefit as defined in subsection 136(1) of the FBT Act. The provision of the visa is a residual fringe benefit under section 45 of the FBT Act as it does not fall into any other category of fringe benefit. | Detailed Reasoning - Question 2: Is the payment of Skilling Australians Fund Levy as a consequence of sponsoring a skilled worker, which is not in respect of relocation transport, a fringe benefit? | Summary: The payment of SAF Levy as a consequence of sponsoring a skilled worker, which is not in respect of relocation transport, is not a fringe benefit. | Detailed Reasoning - Detailed reasoning: The first step is to consider whether the payment of the SAF Levy for sponsoring a skilled worker who is already in Australia is a 'benefit' as defined in subsection 136(1). The term benefit is defined in subsection 136(1) as: benefit includes any right (including a right in relation to, and an interest in, real or personal property), privilege, service or facility and, without limiting the generality of the foregoing, includes a right, benefit, privilege, service or facility that is, or is to be, provided under: (a) an arrangement for or in relation to: (i) the performance of work (including work of a professional nature), whether with or without the provision of property; (ii) the provision of, or of the use of facilities for, entertainment, recreation or instruction; or (iii) the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; (b) a contract of insurance; or (c) an arrangement for or in relation to the lending of money. The SAF levy is likely to be a 'benefit' under this broad definition as it is a 'service or facility' It is the employer as the person who sponsors the visa, not the employee, who is liable to pay the SAF Levy. The payment of the SAF Levy does not bring a right, benefit, privilege, service or facility to the employee. As outlined on the Department's website and in the Explanatory Statement of SAF Regulation, the principal objective of the SAF Levy is to improve training and employment outcomes for Australians and reduce longer-term reliance on overseas workers. As a result, other Australian workers will receive benefits in connection to the payment of the SAF Levy, rather than the sponsored employee. The employer will make payment of the SAF Levy in order to meet all their obligations involved in sponsoring visas for skilled workers. The purpose of the SAF Levy is to require employers seeking to access skilled overseas workers to contribute to the skills development of Australians (as stated on the Department of Home Affairs website). The employer of a sponsored worker is liable for the SAF Levy and must not pass the SAF Levy onto the visa applicant (subsection 140HA(1) Migration Act 1958 and Regulation 2.87 of the Migration Regulations 1994). From 12 August 218, the SAF Levy replaced Training Benchmark requirement under the Sponsorship Obligations Framework arising in respect of previous temporary work visas (employers sponsoring a worker under the subclass 457 visa or nomination a worker under the Temporary Transition stream or direct entry stream of the subclass 186 visa).The previous training benchmark obligations required employers to spend: - The equivalent of at least two per cent of their business' recent payroll in contributions to a specified industry training fund (Training benchmark A); or - The equivalent of at least one per cent of their business' recent payroll on the training of Australians (training benchmark B) As noted in the 2017 Regulation Impact Statement (OBPR ID 21946): 69. The proposed new training fund contribution model aims to make compliance and monitoring simpler by removing the need to maintain complex records to demonstrate expenditure to meet the current training benchmark requirements, and replacing it with a levy paid to the Skilling Australians Fund (SAF). The SAF Levy is imposed by the Migration (skilling Australians Fund) Charges Act 2018 on the employer for sponsoring a worker. The employer must pay the Levy as determined under the legislation, which varies depending on the size of the sponsoring business, and the proposed period of stay of the overseas worker in Australia. | Detailed Reasoning - ENS / RSMS visas: Small (annual turnover less than $10 million) AUD1200 per year or part thereof AUD3000 one-off Other business (annual turnover of $10 million or more) AUD1800 per year or part thereof AUD5000 one-off A cap applies to the SAF levy, this cap depends on the financial year in question and the type of visa being sought. We accept that the SAF Levy is a separate obligation to the payment of the Application Fees, being a separate charge under the Migration (skilling Australians Fund) Charges Act 2018 and that the SAF Levy is administered by a different Commonwealth Department. The Levy must be paid when an application is made, regardless of whether the application is successful or not. The amount of Levy is determined on the basis of the visa type and the length of that visa. We also accept that under the SAF Regulations, there are circumstances where the employer can receive a refund of the SAF Levy, even though the Application Fees are not refunded. The Department will not refund the Application Fees if the application is not successful, while the refund of the SAF Levy is available in any of the following scenarios: · The sponsorship and visa applications are approved, but the overseas skilled worker (visa holder) does not arrive/commence employment with the employer; · The employer's sponsorship and nomination application for the overseas skilled worker is approved, but the associated visa application is refused on health or character grounds; · A subclass 482 visa holder leaves the sponsoring employer within the first 12 months of employment where the visa period was for more than 12 months. Refunds will only be available in this scenario for unused full years of the SAF Levy; or · The nomination fee is refunded (for example, where a concurrent sponsor application is refused). The SAF Levy forms part of a fee that an employer must pay in order to be able to apply for these particular visa types. This is an administrative expense that the employer pays that is not the benefit being provided to the employee. Whilst the levy is part of the costs to sponsor a person, it is not sufficiently related to the benefit provided to the employee. The Levy is used to pay for the skilling of Australians, and is imposed on an employer that seeks to employ skilled overseas workers. The levy payments are tax deductible to the sponsor, which does not coincide with them being included in respect of a fringe benefit. The SAF Levy is not an 'incident or product' of the provision of the visa, rather it is an administrative cost incurred by the sponsor and is not a benefit that the employee receives. In these circumstances, the payment of the SAF Levy is not considered to be a fringe benefit. | Summary: The taxable value of the fringe benefit provided in the form of the sponsored visa is the amount of the Application Fees, not including the SAF Levy. | Detailed Reasoning - Detailed reasoning: Before calculating the taxable value of a fringe benefit it is necessary to first determine the type of fringe benefit that has been provided, as each type of fringe benefit has specific rules for calculating the taxable value of that fringe benefit. A residual fringe benefit is defined under section 45 to be a benefit that does not fit within the specific categories listed in Divisions 2 to 11 of the FBT Act. As the sponsored visa for a skilled worker does not come within any of the other specific categories it will be a residual fringe benefit. The first step to determine which method to use to calculate the taxable value of a residual fringe benefit is to determine whether the fringe benefit is an in-house or external residual fringe benefit. Under the definition of 'in-house residual fringe benefit' in subsection 136(1) of the FBT Act, the provider of the benefit must be the employer or an associate of the employer. As the provider of the visa is the Minister or the Minister's delegate, this requirement is not satisfied. The benefit can also be an in-house residual fringe benefit where the provider purchased the benefit from the employer, and this is also not the case. Consequently, the visa will not be an in-house residual fringe benefit. The provision of the sponsored visa will thus be an external residual fringe benefit, as per the definition of 'external period residual fringe benefit' in subsection 136(1). The second step to determine what method to use to calculate the taxable value of a residual fringe benefit is to determine whether or not the benefit is provided during a period. Under subsection 149(1) of the FBT Act: A benefit shall be taken to be provided during a period if, and only if, the benefit: a) Is provided, or subsists, during a period of more than 1 day; and b) Is not deemed by a provision of this Act to be provided at a particular time or on a particular day. As the visa allows the employee to work in Australia for the duration of the visa, the benefit subsists during a period of more than 1 day and it is thus a period residual fringe benefit. The methods that are used to calculate the taxable value of an external period residual fringe benefit are contained within section 51 which states: Subject to this Part, the taxable value of an external period residual fringe benefit in relation to an employer in relation to a year of tax is: a) Where the provider was the employer or an associate of the employer and the recipient's overall benefit was purchased by the provider under an arm's length transaction - the amount paid or payable by the provider in respect of the recipient's current benefit; b) Where the provider was not the employer or an associate of the employer and the employer, or an associate of the employer, incurred expenditure to the provider under an arm's length transaction in respect of the provision of the recipient's current benefit - the amount of that expenditure; or c) In any other case - the notional value of the recipient's current benefit; Reduced by the amount of the recipient's contribution insofar as it relates to the recipient's current benefit. As the provider of the fringe benefit is neither the employer, nor an associate of the employer, subsection 51(a) will not apply. Subsection 51(b) will apply because A Ltd will incur expenditure to the Department (the provider). It is necessary to determine what expenditure is incurred in respect of the provision of the visa. We consider that the expenditure incurred in respect of the provision of the visa includes the Application Fees as well as the SAF Levy. We accept that the taxable value of fringe benefits provided under an arm's length transaction is not always the same as the total cost to the employer. Only expenses incurred in respect of the provision of the benefit are included in the taxable value of the benefit. In National Australia Bank Ltd v. FCT 93 ATC 4914 (NAB case), the taxpayer provided Cabcharge facilities to employees working certain shifts, for taxi travel between the employee's home and work. Where a taxi cab operator agreed to accept a Cabcharge card or voucher, the amount of the metered fare was debited to the taxpayer's monthly account together with a service charge of 10%. The Federal Court found that as no contribution was made by the employee, the notional taxable value of the benefit, being transport of the employee, was the amount paid or payable by the Bank to the taxi cab operator. However, the taxable value of the benefit did not include any part of the service charge paid by the Bank to Cabcharge which was referable to the taxi fare. The service charge was merely an administrative expense incurred by NAB Bank, which was not part of the benefit provided to the employee. The phrase "in respect of" is defined in subsection 136(1) of the FBT Act to include "by reason of, by virtue of, or for or in relation directly or indirectly". In J & G Knowles & Associates Pty Ltd v. FCT (2000) 96 FCR 402; 2000 ATC 4151; (2000) 44 ATR 22; 2000 FCA 196 (Knowles), the Federal Court noted that the phrase "in respect of" requires "a sufficient or material, rather than a causal connection or relationship". The Court in Knowles also indicated that phrase "in respect of" should also include consideration of whether it is "a product and an incident". The employer will make payment of the SAF Levy in order to meet all their obligations involved in sponsoring visas for skilled workers. The purpose of the SAF Levy is to require employers seeking to access skilled overseas workers to contribute to the skills development of Australians (as stated on the Department of Home Affairs website). The SAF Levy is imposed by the SAF Charges Act on the employer for sponsoring a worker. The employer must pay the Levy as determined under the legislation, which varies depending on the size of the employer. A cap applies to the SAF fee, this cap depends on the financial year in question and the type of visa being sought. We accept that the SAF Levy is a separate obligation to the payment of the Application Fees, being a separate charge under the SAF Charges Act and that the SAF Levy is administered by a different Commonwealth Department. The Levy must be paid when an application is made, regardless of whether the application is successful or not. The amount of Levy is determined on the basis of the visa type and the length of that visa. We also accept that under the SAF Regulations, there are circumstances where the employer can receive a refund of the SAF Levy, even though the Application Fees are not refunded. The Department will not refund the Application Fees if the application is not successful, while the refund of the SAF Levy is available in any of the following scenarios: · The sponsorship and visa applications are approved, but the overseas skilled worker (visa holder) does not arrive/commence employment with the employer; · The employer's sponsorship and nomination application for the overseas skilled worker is approved, but the associated visa application is refused on health or character grounds; · A subclass 482 visa holder leaves the sponsoring employer within the first 12 months of employment where the visa period was for more than 12 months. Refunds will only be available in this scenario for unused full years of the SAF Levy; or · The nomination fee is refunded (for example, where a concurrent sponsor application is refused). The SAF Levy forms part of a fee that an employer must pay in order to be able to apply for these particular visa types. This is an administrative expense that the employer pays that is not a benefit being provided to the employee. Whilst the levy is part of the costs to sponsor a person, it is not sufficiently related to the benefit provided to the employee. The Levy is used to pay for the skilling of Australians, and is imposed on an employer that seeks to employ skilled overseas workers. The levy payments are tax deductible to the sponsor, which does not coincide with them being included in respect of a fringe benefit. The SAF Levy is not an 'incident or product' of the provision of the visa, rather it is an administrative cost incurred by the sponsor and is not part of the benefit that the employee receives. In these circumstances, the payment of the SAF Levy should not be included in the calculation of the taxable value of the residual fringe benefit constituted by the provision of the visa as expenditure incurred in respect of the provision of the visa.