Private ruling: Fringe Benefits Tax: Living Away From Home Allowance -Transitional Rules
Published: December 2012
Ruling period: 1 April 2012 to 31 March 2014
Date scheme commenced: 2010

Ruling: Q1: For the period 01 October 2012 to 31 March 2014 (transitional period) can the employer continue to reduce the taxable value of the living away from home allowance (LAFHA) fringe benefits by any exempt food component under section 31 of Fringe Benefits Tax Assessment Act 1986 (FBTAA) in respect of employee A? | A1: No | Q2: For the period 01 October 2012 to 31 March 2014 (transitional period) can the employer continue to reduce the taxable value of the LAFHA fringe benefits by any exempt food component under section 31 FBTAA in respect of employee B? | A2: No | Q3: For the period 01 October 2012 to 31 March 2014 (transitional period) do the reimbursements to the employee of the accommodation expenses continue to constitute exempt benefits under section 21 FBTAA in relation employee A? | A3: No | Q4: For the period 01 October 2012 to 31 March 2014 (transitional period) do the reimbursements to the employee of the accommodation expenses continue to constitute exempt benefits under section 21 FBTAA in relation to employee B? | A4: No | Q5: For the period 01 October 2012 to 31 March 2014 (transitional period) can the employer continue to reduce the taxable value of the LAFHA fringe benefits by any exempt food component under section 31 FBTAA in respect of employee C? | A5: Yes | Q6: For the period 01 October 2012 to 31 March 2014 (transitional period) do the reimbursements to the employee of the accommodation expenses continue to constitute exempt benefits under section 21 FBTAA in relation to employee C? | A6: Yes

Relevant facts and circumstances: The employer is a member of a Group of companies operating in a corporate environment with the parent company headquartered overseas. The Group is one of the largest conglomerates in the world. It currently employs employees who are working in Australia on temporary assignments. The employees are key personnel of the Group in Australia. The employer provides benefits to 3 employees in Australia. Employees A and B are on temporary 457 Visas and will be expected to return to country X at the end of their term of employment. Employee C applied for and was granted permanent residency in 2011. This employee was sponsored for permanent residency in order to secure leadership of the group for a longer period but is also expected to return to country X when the employee's assignment is completed. Each of the above three employees maintains a principal residence in country X that they are living away from because of their employment duties in Australia. They are working in Australia on temporary assignment for a few years. Under employment arrangements in place prior to 7.30 p.m. 08 May the employer has been providing the employees with a Living Away From Home Allowance (LAFHA) to cover extra food expenses and reimbursements of the employee's accommodation expenses incurred by them in Australia. To date, there has been no material change to these employment arrangements. The employees' accommodation in Australia is required solely in order to enable them to perform their employment duties. Employees C and A are accompanied by their spouses. Each of the employees will provide a declaration by the declaration date setting out their usual place of residence and their actual place of residence for the period the LAFHA and benefits are provided. Assumptions There will be no material change to the employment arrangements under which the benefits are being provided prior to 1 April 2014. The employees will provide a declaration in accordance with section 31F of the FBTAA.

Relevant legislative provisions: Fringe Benefits Tax Assessment Act 1986 Section 20 | Fringe Benefits Tax Assessment Act 1986 Section 21 | Tax Laws Amendment (2012 Measures No. 4) Act 2012 Sch 1 Subsection 27(2) | Fringe Benefits Tax Assessment Act 1986 Section 30 | Fringe Benefits Tax Assessment Act 1986 Section 31 | Fringe Benefits Tax Assessment Act 1986 Section 31C | Fringe Benefits Tax Assessment Act 1986 Section 31C(a) | Fringe Benefits Tax Assessment Act 1986 Section 31D | Fringe Benefits Tax Assessment Act 1986 Subsection 31D(1) | Fringe Benefits Tax Assessment Act 1986 Subsection 31F | Income Tax Assessment Act 1936 Section 6(1)A | Tax Laws Amendment (2012 Measures No. 4) Act 2012 Part 3 Sched 1 Section 27

Reasons for decision: Summary: The Relevant Law - Living Away From Home Allowance Subsection 30(1) FBTAA sets out the circumstances in which a living-away-from-home allowance benefit will be taken to exist for fringe benefits tax purposes. SECTION 30 LIVING-AWAY-FROM-HOME ALLOWANCE BENEFITS 30(1) [Provision of benefit] Where: (a) at a particular time, in respect of the employment of an employee of an employer, the employer pays an allowance to the employee; and (b) it would be concluded that the whole or a part of the allowance is in the nature of compensation to the employee for: (i) additional expenses (not being deductible expenses) incurred by the employee during a period; or (ii) additional expenses (not being deductible expenses) incurred by the employee, and other additional disadvantages to which the employee is subject, during a period; by reason that the duties of that employment require the employee to live away from his or her normal residence; the payment of the whole, or of the part, as the case may be, of the allowance constitutes a benefit provided by the employer to the employee at that time. 30(2) [Benefit to offshore oil and gas rig workers] ... As applicable to the relevant situation, the taxable value of a LAFHA fringe benefit is determined under: SECTION 31 TAXABLE VALUE - EMPLOYEE MAINTAINS A HOME IN AUSTRALIA SECTION 31A TAXABLE VALUE - FLY-IN FLY-OUT AND DRIVE-IN DRIVE-OUT EMPLOYEES SECTION 31B TAXABLE VALUE - ANY OTHER CASE Section 31 FBTAA states: SECTION 31 TAXABLE VALUE - EMPLOYEE MAINTAINS A HOME IN AUSTRALIA 31(1) This section applies to a living-away-from-home allowance fringe benefit covered by subsection 30(1) in relation to a year of tax to the extent that the employee satisfies all of the following for the fringe benefit and the period to which it relates: (a) section 31C (about maintaining an Australian home); (b) section 31D (about the first 12 months); (c) section 31F (about declarations). 31(2) Subject to this Part, the taxable value of the fringe benefit in relation to the year of tax is the amount of the fringe benefit reduced by: (a) any exempt accommodation component; and (b) any exempt food component. 31(3) Paragraph (2)(b) does not apply to the extent that the fringe benefit relates to a period during which the employee resumes living at his or her normal residence. 31(4) Neither paragraph (2)(a) nor (b) applies to the extent that the period to which the fringe benefit relates happens while the 12-month period referred to in subsection 31D(1) is paused. Section 31C FBTAA is satisfied if: (a) the place in Australia where the employee usually resides when in Australia: i. is a unit of accommodation in which the employee or the employee's spouse has an ownership interest (within the meaning of the Income Tax Assessment Act 1997); and ii. continues to be available for the employee's immediate use and enjoyment during the period that the duties of that employment require the employee to live away from it; According to subsection 31D(1) FBTAA, the employee satisfies section 31D if: …the fringe benefit relates only to all or part of the first 12 months that the duties of that employment require the employee to live away from the place in Australia where he or she usually resides when in Australia. SECTION 31F DECLARATIONS 31F(1) The employee satisfies this section if the employee gives the employer a declaration, in a form approved by the Commissioner, purporting to set out: (a) for a fringe benefit to which section 31 (about employees who maintain an Australian home) applies: (i) the address of the place in Australia where the employee usually resides when in Australia; and (ii) that section 31C is satisfied for that place; and (iii) the address of each place where the employee actually resided during the period to which the benefit relates; or (b) for a fringe benefit to which section 31A (about employees who fly-in fly-out or drive-in drive-out) applies: (i) the address of the employee's usual place of residence; and (ii) that paragraph 31E(d) is satisfied for the employee's normal residence; and (iii) the address of each place where the employee actually resided during the period to which the benefit relates. 31F(2) The employee must give the employer the declaration before the declaration date for the year of tax during which the benefit was provided. | Detailed Reasoning - Exempt accommodation component: The exempt accommodation component of an LAFHA is the amount the employer pays to the employee for additional accommodation expenses the employee could reasonably be expected to incur at the alternate location. Where the allowance paid includes an amount for accommodation which is not reasonable, that part of the allowance will be included in the taxable value of the LAFHA. | Detailed Reasoning - Exempt food component: Exempt food component is defined in section 136 FBTAA. In brief, the exempt food component of a LAFHA is the amount the employer pays to the employee for additional food costs because they are required to live away from their normal residence in Australia in order to perform their employment duties. | Detailed Reasoning - The Relevant Law - Exempt Accommodation Expense Payment Benefits: Section 20 FBTAA provides that an expense payment fringe benefit arises when an employer pays for or reimburses expenses incurred by an employee or an associate of an employee. The general effect of section 21 FBTAA is that an expense payment benefit that relates to the payment or reimbursement of expenditure incurred by an employee on accommodation, in circumstances where the employee is required to live away from his normal residence to carry out his employment duties is an exempt benefit. Section 21 of the FBTAA states: 21 EXEMPT ACCOMMODATION EXPENSE PAYMENT BENEFITS Where: (a) an expense payment benefit is provided in a year of tax to a current employee of an employer in respect of his or her employment; and (b) the recipients expenditure is in respect of accommodation for eligible family members; and (ba) the accommodation is not provided while the employee is undertaking travel in the course of performing the duties of that employment; and (c) the accommodation is required solely because the duties of that employment require the employee to live away from his or her normal residence; and (d) the employee satisfies: (i) sections 31C (about maintaining an Australian home) and 31D (about the first 12 months); or (ii) section 31E (about fly-in fly-out and drive-in drive-out requirements); and (e) the employee gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, purporting to set out: (i) if the employee satisfies sections 31C and 31D - the matters in subparagraphs 31F(1)(a)(i) to (iii); or (ii) if the employee satisfies section 31E - the matters in subparagraphs 31F(1)(b)(i) to (iii); the benefit is an exempt benefit in relation to the year of tax. | Detailed Reasoning - Transitional rules: The laws referred to above include recent reforms that have tightened the concessional tax treatment of fringe benefits tax (FBT) for living-away-from-home allowances and benefits. The reformed rules apply generally to employees who are living away from their normal residence on or after 1 October 2012 in respect of all allowances and benefits provided in relation to the periods commencing on or after 1 October 2012. However, there are transitional rules that may apply to employment arrangements for living-away-from-home allowances and benefits in place prior to Budget time at 7.30pm (AEST) on 8 May 2012. Paragraph 1.62 of the Explanatory Memorandum to the Tax Laws Amendment (2012 Measures No. 4) Act 2012 (EM) states that the transitional rules apply to: · Employees who are permanent residents with employment arrangements in place prior to 7:30pm (AEST) on 8 May 2012 (Budget time); and · The employment arrangement was not materially varied or renewed between Budget time and 1 October 2012. The legislation for the transitional arrangements is in Part 3 of Schedule 1 to the Tax Laws Amendment (2012 Measures No. 4) Act 2012. Specifically, subsection 27(1) of that Part states that: (1) During the transitional period, disregard paragraph 31C(a) and section 31D of the Fringe Benefits Tax Assessment Act 1986 if: (a) the employee is neither a temporary resident nor a foreign resident; and (b) during the entire period: (i) starting at the Budget time; and (ii) ending on 30 September 2012; that employment was covered by an eligible employment arrangement that was neither varied in a material way nor renewed. The transitional period means the period: (a) starting on 1 October 2012; and (b) ending at the earliest of: (i) 30 June 2014; and (ii) The time the eligible employment arrangement referred to in paragraph (1)(a) or (2)(b) ends; and (iii) The first time that eligible employment arrangement is varied in a material way or renewed. Further, in accordance with subsection 27(2) in Part 3 of Schedule 1 to the Tax Laws Amendment (2012 Measures No. 4) Act 2012, an employer may not disregard paragraph 31C(a) FBTAA during the transitional period if the employee is either a 'temporary resident' or 'foreign resident'. Both of these terms are defined in the Tax Laws Amendment (2012 Measures No. 4) Act 2012. The EM uses the terminology 'permanent resident' but the amending legislation does not. 'Temporary resident' and 'foreign resident' have the same meaning as in the Income Tax Assessment Act 1997 (ITAA 1997). As defined in section 995-1 ITAA 1997 you are a temporary resident if: a) you hold a temporary visa granted under the Migration Act 1958; and b) you are not an Australian resident within the meaning of the Social Security Act 1991; and c) your spouse is not an Australian resident within the meaning of the Social Security Act 1991 However you are not a temporary resident if you have been an Australian resident (within the meaning of this Act), and any of paragraphs (a), (b) and (c) are not satisfied, at any time after the commencement of this definition. An "Australian resident" for the purposes of the Social Security Act 1991 is defined in section 7(2) of that Act. Section 7(2) states that a person will be an Australian resident if he or she resides in Australia and is: (a) an Australian citizen; (b) the holder of an Australian permanent resident visa; or (c) the holder of a special category visa and is a "protected SCV holder" (generally applicable to New Zealand citizens who entered Australia before 27 February 2001). | Summary: The transitional rules will not apply in respect of the provision of LAFHA fringe benefits to employees A and B because they are temporary residents and do not maintain a normal residence in Australia that they are required to live away from to carry out employment duties. | Detailed Reasoning - Detailed reasoning: In order for an employer to apply the concessional taxable value rules under section 31 FBTAA, Paragraph 31(1)(a) FBTAA requires amongst other things, that the employee satisfies section 31C (about maintaining an Australian home). Specifically, subparagraphs 31C(a)(i) and (ii). Section 31C FBTAA is satisfied if: (a) the place in Australia where the employee usually resides when in Australia: (i) is a unit of accommodation in which the employee or the employee's spouse has an ownership interest (within the meaning of the Income Tax Assessment Act 1997); and (ii) continues to be available for the employee's immediate use and enjoyment during the period that the duties of that employment require the employee to live away from it; The laws referred to above include recent reforms that have tightened the concessional tax treatment of fringe benefits tax (FBT) for living-away-from-home allowances and benefits. The reformed rules apply generally to employees who are living away from their normal residence on or after 1 October 2012 in respect of all allowances and benefits provided in relation to the periods commencing on or after 1 October 2012. However, there are transitional rules that may apply to employment arrangements for living-away-from-home allowances and benefits in place prior to Budget time at 7.30pm (AEST) on 8 May 2012. Transitional rules apply to both permanent and temporary residents. However, an employer may not disregard paragraph 31C(a) of the FBTAA during the transitional period if the employee is either a temporary resident or a foreign resident. The legislation for the transitional arrangements is in Part 3 of Schedule 1 to the Tax Laws Amendment (2012 Measures No. 4) Act 2012. Specifically, subsection 27(1) of that Part states that: (1) During the transitional period, disregard paragraph 31C(a) and section 31D of the Fringe Benefits Tax Assessment Act 1986 if: (a) the employee is neither a temporary resident nor a foreign resident; and (b) during the entire period: (i) starting at the Budget time; and (ii) ending on 30 September 2012; that employment was covered by an eligible employment arrangement that was neither varied in a material way nor renewed. The transitional period is the period: (a) starting on 1 October 2012; and (b) ending at the earliest of: (i) 30 June 2014; and (ii) The time the eligible employment arrangement referred to in paragraph (1)(a) or (2)(b) ends; and (iii) The first time that eligible employment arrangement is varied in a material way or renewed. Paragraphs 1.64 and 1.65 of the EM state: 1.64 Transitional rules also apply to: • employees who are temporary or foreign residents with employment arrangements in place prior to 7.30 pm (AEST) on 8 May 2012 (Budget time); • the employment arrangement was not materially varied or renewed between Budget time and 1 October 2012; and • they are maintaining a home in Australia for their immediate use and enjoyment at all times (emphasis added). 1.65 In these circumstances, the requirement that the fringe benefits must relate to the first 12 months the employee is living away from home does not apply until 1 July 2014. However, if there is a material change to or renewal of the employment arrangement between 1 October 2012 and 1 July 2014, this rule does apply from the date of the change or renewal. The amendments have effect from 01 October 2012 even for employment arrangements in place prior to budget time unless the transitional rules state that that a specified amendment measure can be disregarded during the transitional period. The meaning of the term 'maintaining a home in Australia' is as defined in section 31C FBTAA. The relevant facts in this ruling indicate that: · employment arrangements under which the LAFH benefits are being provided were in place prior to 7:30pm (AEST) on 8 May 2012 (Budget time), and · the employment arrangements were not materially varied or renewed between Budget time and 1 October 2012. Further, in accordance with the assumption made, there will be no material change to the employment arrangements prior to 1 April 2014. However, notwithstanding the above, as mentioned previously, an employer may not disregard paragraph 31C(a) FBTAA during the transitional period if the employee is either a 'temporary resident' or a 'foreign resident'. As such, each employee's residency status is a relevant consideration to determine whether the employer can disregard paragraph 31C(a). If it is concluded that an employee is either a temporary resident or a foreign resident as defined, the employer may not disregard paragraph 31C(a). This effectively means that the employee must maintain a home at all times for the employer is to apply the concessional valuation rules under section 31 during the transitional period. Are the employees temporary or foreign residents as defined? Employees A and B meet paragraphs a), b) and c) in the definition of temporary resident in section 995-1 ITAA 1997 as stated above because: a) they hold a temporary 457 visa granted under the Migration Act 1958; and b) they are not Australian residents within the meaning of the Social Security Act 1991 c) A's spouse is not an Australian resident within the meaning of the Social Security Act 1991 and B does not have a spouse living with him in Australia The definition of temporary resident in section 995-1 ITAA 1997 does provide for a person to be excluded from the definition if the person has been an Australian resident (within the meaning of the Social Security Act 1991), and any of paragraphs a), b) and c) above are not satisfied, at any time after the commencement of this definition. The employees A and B do not satisfy the definition of 'Australian resident" within the meaning of the Social Security Act 1991 as neither is (a) an Australian citizen; (b) the holder of an Australian permanent resident visa; or (c) the holder of a special category visa and is a "protected SCV holder" (generally applicable to New Zealand citizens who entered Australia before 27 February 2001). Since the employees A and B are temporary residents as defined in section 995-1 ITAA 1997 then during the transitional period the employer may not disregard paragraph 31C(a) FBTAA about maintaining a home in Australia. As neither of the employees maintain a normal residence in Australia that they are required to live away from (emphasis added), the taxable value of the LAFHA fringe benefits from 01/10/2012 cannot be calculated under section 31 FBTAA but will be calculated using section 31B FBTAA. The taxable value of the fringe benefits being the amount of the LAFHA in accordance with subsection 31B(2) FBTAA. In respect of LAFHA fringe benefits provided to A and B from 1/10/2012, the employer will not be able to reduce the taxable value of these LAFHA fringe benefits by any exempt food component under section 31 FBTAA. | Summary: The transitional rules will not apply in respect of the provision of the reimbursements of accommodation expenses because the employees A and B are temporary residents and do not maintain a normal residence in Australia that they are required to live away from to carry out employment duties. | Detailed Reasoning - Detailed reasoning: Under the reformed rules, the reimbursement of the accommodation expenses will continue to be exempt under section 21 FBTAA where the employee satisfies paragraphs 21(d) and 21(e) FBTAA. Subparagraph 21(d)(i) in turn requires the employee to satisfy sections 31C (about maintaining a home in Australia) and 31D (about the first 12 months). Paragraph 21(e) is about providing the Commissioner a declaration before the declaration date. For similar reasons as outlined in the reasons for decision for questions 1 and 2, during the transitional period the employer may not disregard paragraph 31C(a) FBTAA and therefore the reimbursements of the accommodation expenses to employees A and B from 01/10/2012 will not constitute exempt accommodation expense payment benefits under section 21 FBTAA. | Summary: The transitional rules will apply in respect of the provision of LAFHA because employee C is a permanent resident and therefore paragraph 31C(a) FBTAA about maintaining a home in Australia and section 31(D) FBTAA may be disregarded during the transitional period. | Detailed Reasoning - Detailed reasoning:: Applying the laws referred to in the reasons for decision for questions 1 and 2 above, we have concluded that C is not a temporary resident as defined because he holds a permanent resident visa. A foreign resident is defined as: … a person who is not a resident of Australia for the purposes of the Income Tax Assessment Act 1936 (ITAA 1936). In relation to an individual, the ITAA 1936 defines a resident as: (a) a person, other than a company, who resides in Australia and includes a person: (i) whose domicile is in Australia, unless the Commissioner is satisfied that the person's permanent place of abode is outside Australia; (ii) who has actually been in Australia, continuously or intermittently, during more than one-half of the year of income, unless the Commissioner is satisfied that the person's usual place of abode is outside of Australia and that person does not intent to take up residence in Australia; or (iii) who is: (A) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or (B) an eligible employee for the purposes of the Superannuation Act 1976; or (C) the spouse, or a child under 16, of a person covered by sub-subparagraph (A) or (B); … Taxation Ruling TR 98/17 provides guidance on the residency status of individuals entering Australia. Referring to the definition in subsection 6(1) ITAA 1986 paragraph 32 states that: The definition has four tests for determining whether an individual is a resident for tax purposes. These tests are: (1) residence according to ordinary concepts; (2) the domicile and permanent place of abode test; (3) the 183 day test; and (4) the Commonwealth superannuation fund test. Paragraph 33 goes on to say that: The definition states that a resident means a person who resides in Australia. If they reside here under ordinary concepts, residency status is established and the other three tests in the subsection 6(1) definition need not be considered. These other tests extend the meaning of 'resident' to individuals who may not reside in Australia: Applegate. There are various indicators to be considered when determining whether an individual resides in Australia under ordinary concepts. Paragraph 43 notes that: Where the day to day behaviour of individuals, considered over time, is relatively similar to their behaviour before entering Australia, they are likely to be regarded as residing here. Even when their behaviour over time is different from their behaviour before entering Australia, they are likely to be regarded as residing here, when the facts of their presence indicate a routine establishing that they are living in Australia. Further, paragraphs 44 to 46 go on to say: Many individuals work in a number of countries during their careers. They often maintain a house in their country of domicile. However, for the period of their assignment in Australia, they live and work here. Their family often accompany them, their children attend school here and they may become involved in social activities while present in Australia. Although these individuals regard themselves as permanently resident in their home country and/or may be regarded as residents of their home country for its tax purposes, their behaviour while temporarily in Australia may mean they are also residing here for Australian tax purposes. All the facts and circumstances that describe an individual's behaviour in Australia are relevant. Indicators that should be considered are: · Intention or purpose of presence: a settled purpose such as employment or education may support an intention to reside in Australia. However, the intention must be more than merely being a traveller or visitor who may supplement their savings by obtaining casual employment. · Family and business/employment ties: an individual who enters Australia to take up an employment contract usually establishes or maintains behaviour that may indicate the individual is residing here. · Maintenance and location of assets · Social and living arrangements Time is not necessarily determinative of residency but it is an important factor when considering whether an individual resides here. Therefore if a person is a resident of Australia in accordance with the definition in subsection 6(1) ITAA 1936, that person is not a foreign resident. Having regard to the above discussions and applying the provisions referred to in this ruling to the relevant facts for this ruling we have determined that: 1. Employee C is an Australian resident as his behaviour during the period he is in Australia reflects a degree of continuity, routine or habit that is consistent with residing in Australia. 2. Employee C is neither a temporary resident nor a foreign resident for taxation purposes as defined in section 995-1 ITAA 1997. Therefore for the purposes of section 31 FBTAA the transitional rules do apply in respect of C. 3. The effect of the transitional rules in section 27 FBTAA as relevant to employee C is that during the transitional period for the purposes of section 31 FBTAA he is not required to satisfy: a) the requirement to maintain a home in Australia as defined in section 31 (C) FBTAA and b) section 31(D) FBTAA There will be no material change to the employment arrangements under which the benefits are being provided prior to 1 April 2014. In respect of the LAFHA fringe benefits provided to employee C during the transitional period, the employer may disregard section 31C FBTAA and section 31D FBTAA for the purposes of paragraphs 31(1) (a) and (b). As all of the requirements of section 31 are satisfied, the employer will be able to calculate the taxable value of these fringe benefits under section 31 FBTAA and therefore reduce the taxable value by any exempt food component. | Summary: The transitional rules will apply in respect of the provision of the reimbursements of accommodation expenses because employee C is a permanent resident and therefore paragraph 31C(a) FBTAA about maintaining a home in Australia and section 31(D) FBTAA may be disregarded for the purposes of section 21 FBTAA. | Detailed Reasoning - Detailed reasoning: Some of the reasons for decision provided in relation to question 5 above also apply here. In respect of the expense payment benefits (accommodation expenses) provided to employee C during the transitional period, the employer may disregard section 31C FBTAA and section 31D FBTAA for the purposes of paragraph 21(d)(i) FBTAA. As all of the requirements of section 21 are satisfied, these benefits will constitute exempt accommodation expense payment benefits under section 21 FBTAA and will not be subject to FBT.

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