Private ruling: Fringe benefits - clothing allowance and staff discounts
Date of advice: 18 March 2024
Published: 29 April 2024
Ruling period: Year ended March 20YY | Year ended March 20YY | Year ended March 20YY | Year ended March 20YY
Date scheme commenced: 1 April 20YY

Ruling: Q1: Does the Commissioner consider the provision of in-house goods provided to employees, monitored and administered via a store gift card, is a fringe benefit in accordance with subsection 136(1) of the Fringe Benefits Tax Assessment Act 1986 (FBTAA)? | A1: Yes. | Q2: Is the provision of in-house goods an in-house property fringe benefit in accordance with subsection 136(1) of the FBTAA rather than a fringe benefit being the provision of the gift card? | A2: Yes. | Q3: Will the in-house property fringe benefit be subject to the valuation rules in section 42(1)(b) of the FBTAA and the reduction in aggregated taxable value in section 62 of the FBTAA? | A3: Yes. | Q4: Will a proposed discount of 25% provided to family members of employees for the purchase, in after-tax dollars, of goods that meet the definition of in-house property benefits, result in a nil taxable value? | A4: Yes.

Relevant facts and circumstances: The Taxpayer employs staff in Australia in both administrative roles and in customer-facing roles in their retail stores. The Taxpayer operates retail brands in Australia. The Taxpayer prefers customer-facing employees to wear the brand's clothing to work. To encourage this, they provide employees who undertake a customer facing role with a "clothing allowance" for the purchase clothing. The clothing allowance is administered through the use of a pre-loaded store gift cards. Similar to cards sold to the general public, the cards are unable to be transferred or exchanged for cash. Gift cards containing the clothing allowance for employees are kept in the safe in the retail store where the employee is located and may only be accessed by the manager to process a transaction when the employee would like to acquire the clothing. The exceptions to this are as follows: • The gift cards are only redeemable at certain stores, and can only be used to purchase clothing items, either at full or discount prices, for use by the employee, and not any associate of the employee. Additionally, a 25% discount is applied to any employee purchase. • If an employee is terminated, they may not use their clothing allowance after the cessation of their employment. • None of the clothing has been manufactured, produced, processed or treated by The Taxpayer. The highest acquisition cost of any item of clothing that employees are permitted to purchase with their clothing allowance is 39.9% of the retail price of the clothing and this is the percentage that is assumed by the Taxpayer when working out the FBT benefit of the clothing allowance. The Taxpayer is also considering providing a discount of 25% on retail prices to family members of the employees. Family members will be defined as husband/wife/co-habiting partner and children living at home between the age of 15 and 20 years. Family members will be provided with a discount card referenced back to the related employee. The person will present the staff discount card with matching photo ID at point of sale and the card will be scanned at the till to apply the discount. Once deactivated, e.g., when the employee terminates, scanning the card will not work and manual discounts are not permitted to be entered by cashiers therefore the discount will no longer apply Neither the 'clothing allowance' nor the 25% discount on retail prices of the clothing are benefits that are, or will be, salary packaged by the employees. The 'clothing allowance' is not provided to the employees by way of a cash allowance but rather is an entitlement to receive a certain amount of property, being clothing, which is administered by way of a card mechanism, so as to track the value provided.

Relevant legislative provisions: Fringe Benefits Tax Assessment Act 1986 section 40 | Fringe Benefits Tax Assessment Act 1986 section 41 | Fringe Benefits Tax Assessment Act 1986 subparagraph 42(1)(a)(ii) | Fringe Benefits Tax Assessment Act 1986 paragraph 42(1)(b) | Fringe Benefits Tax Assessment Act 1986 section 58P | Fringe Benefits Tax Assessment Act 1986 section 62 | Fringe Benefits Tax Assessment Act 1986 subsection 136(1) | Fringe Benefits Tax Assessment Act 1986 subsection 148(1)

Reasons for decision: Summary: The provision of merchandise to an employee via a pre-loaded store gift card will give rise to a fringe benefit. | Detailed Reasoning - Detailed reasoning: A 'fringe benefit' is defined in subsection 136(1) of the FBTAA, which holds that the following conditions must be satisfied: 1. A benefit is provided at any time during the year of tax. 2. The benefit is provided to an employee or an associate of the employee. 3. The benefit is provided by: (i) their employer; or (ii) an associate of the employer; or (iii) a third party other than the employer or an associate under an arrangement between the employer or associate of the employer and the third party; or (iv) a third party 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; 4. The benefit is provided in respect of the employment of the employee. 5. The benefit is not one that is specifically excluded as per paragraphs (f) to (s) of the definition of a fringe benefit in subsection 136(1) of the FBTAA. In order to determine whether the provision of merchandise acquired by employees using store gift cards provided by the employer constitutes a 'fringe benefit' as defined in subsection 136(1) of the FBTAA, a discussion is provided below in respect of whether each element of the definition of a fringe benefit is satisfied. | Detailed Reasoning - A benefit is provided: Subsection 136(1) of the FBTAA provides a broad definition of a 'benefit' as including: 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; ... 'Provide' in relation to a benefit is defined in subsection 136(1) of the FBTAA as allow, confer, give, grant or perform. The provision by The Taxpayer of clothing to an employee upon redemption of the available balance on the employee's store gift card constitutes a privilege, and therefore meets the definition of a 'benefit for the purposes of subsection 136(1) of the FBTAA. | Detailed Reasoning - The benefit is provided to an employee or an associate of the employee: An 'employee' is defined in subsection 136(1) of the FBTAA to mean a current, future or former employee. An 'associate' is defined in subsection 136(1) of the FBTAA to have the meaning given by section 318 of the Income Tax Assessment Act 1936 (ITAA 1936). Subsection 318(1) of the ITAA 1936 states that an associate of a natural person includes a relative of that person. Based on the facts provided, only customer-facing employees are entitled to receive apparel upon use of the store gift card. Therefore, as the benefit will be provided to customer-facing employees, the second condition (i.e. a benefit is provided to an employee and/or associate) of the definition of a 'fringe benefit' as defined in subsection 136(1) of the FBTAA is satisfied. | Detailed Reasoning - The benefit is provided by an employer, an associate of the employer or a third party: 'Employer' is defined in subsection 136(1) of the FBTAA to mean a current, future or former employer. As the benefit is provided by The Taxpayer to customer-facing employees, the third condition of the definition of a 'fringe benefit' as defined in subsection 136(1) of the FBTAA is satisfied. | Detailed Reasoning - The benefit is provided in respect of the employment of the employee: As per subsection 136(1) of the FBTAA, 'in respect of' in relation to the employment of an employee includes by reason of, by virtue of, or for or in relation directly or indirectly to, that employment. Subsection 148(1) of the FBTAA stipulates that a benefit will be provided in respect of the employment of an employee: • whether or not the benefit also relates to some other matter or thing • whether the employment is past, present or future • whether or not the benefit is surplus to the recipient's requirements • whether or not the benefit is also provided to another person • whether or not the benefit is offset by any inconvenience or disadvantage • whether or not the benefit is provided or used, or required to be provided or used, in connection with any employment • whether or not the provision of the benefit is in the nature of income, and • whether or not the benefit is provided as a reward for services rendered, or to be rendered, by the employee. Given the current circumstances, the connection between the benefits that would be received by an employee and their employment would indicate that the benefit is provided in respect of their employment. The benefits will be provided to employees to purchase clothing to wear at work. If it was not for the employee's employment with The Taxpayer, the employee would not be entitled to access any benefit (being apparel received through redemption of the pre-loaded store gift card). On the basis of the above, a benefit provided to employees of The Taxpayer would be considered to be 'in respect of the employee's employment'. As such, the fourth condition (i.e. a benefit is provided in respect of the employment of the employee) of the definition of a 'fringe benefit' as defined in subsection 136(1) of the FBTAA is satisfied. | Detailed Reasoning - Is the benefit an exempt benefit as per paragraph 136(1)(g)?: A fringe benefit is defined as excluding exempt fringe benefits per subsection 136(1) of the FBTAA. In this case, the two relevant benefit categories to consider are: • Section 41 of the FBTAA - exempt property benefits • Section 58P of the FBTAA - minor benefits The property benefit provided to the employee will not be consumed by the employee on business premises of The Taxpayer or a company that is related to The Taxpayer. Accordingly, the requirements of section 41 are not satisfied, hence the benefit is not an exempt property benefit. Section 58P is unlikely to apply because the goods provided by the employer are likely to have a taxable value greater than $300, and it would not be unreasonable to treat the benefit as a fringe benefit. | Detailed Reasoning - The benefit is not excluded from the definition of a fringe benefit: It is assumed for the purposes of this Private Ruling that the benefit(s) provided to an employee of the Taxpayer is not a benefit that is specifically excluded as per paragraphs (f) to (s) of the definition of a 'fringe benefit' in subsection 136(1) of the FBTAA (paragraph (g) is explained above). Therefore, as all the conditions of the subsection 136(1) definition of a "fringe benefit" have been met, a fringe benefit has been provided. | Detailed Reasoning - Question 2: Is the provision of in-house goods an in-house property fringe benefit in accordance with subsection 136(1) of the FBTAA rather than a fringe benefit being the provision of the gift card? | Summary: The provision of apparel (or property) by The Taxpayer to an employee upon the redemption of the value/balance on the individually assigned employee store gift card, constitutes the provision of an 'in-house property fringe benefit' as defined in subsections 136(1) of the FBTAA. | Detailed Reasoning - Property Fringe Benefit: Section 40 of the FBTAA defines a property fringe benefit as "Where, at a particular time, a person (in this section referred to as the provider) provides property to another person (in this section referred to as the recipient), the provision of the property shall be taken to constitute a benefit provided by the provider to the recipient at that time." Subsection 136(1) of the FBTAA defines 'provider' as 'the person who provides the benefit' and defines 'recipient' in relation to a benefit to mean the person to whom the benefit is provided. 'Property' is defined in subsection 136(1) of the FBTAA to mean intangible property and tangible property. 'Tangible property' is defined in subsection 136(1) of the FBTAA to mean goods. The term 'goods' is not defined in the FBTAA and therefore takes on its ordinary meaning. 'Goods' is defined in the Macquarie Dictionary (online) as: 1. possessions, especially movable effects or personal belongings. 2. articles of trade; wares; merchandise, especially that which is transported by land. The provision of a gift card and the later redemption of that gift card to obtain merchandise involves two distinct actions. In ATO Interpretative Decision (ID) ATO ID 2014/17 'Property fringe benefits: redemption of voucher/coupon by a retail store employee for merchandise retailed by their employer' (ATO ID 2014/17), the provision of a voucher/coupon and the later redemption of that voucher/coupon to obtain merchandise were considered to involve two distinct actions. The issue of the voucher/coupon was an administrative aid in facilitating the later provision of merchandise to the employee. The 'benefit' as defined in subsection 136(1) of the FBTAA was therefore the provision of the merchandise by the employer. The employer provides the benefit when the employee redeems the voucher/coupon for the merchandise. The same principle was applied in Class Ruling (CR) CR 2014/56 'Fringe benefits tax: Corporate clients of Dell Australia Pty Ltd (Dell Australia) who participate in the Dell Australia employee purchase program' (CR 2014/56). Similarly, in the current circumstances, the provision of the store gift cards to certain employees and the later use of these cards to obtain goods involve two distinct separate actions. However, the following facts indicate that the provision of a store gift card and the consequent provision of general merchandise and apparel upon redemption of the value/available balance on the store gift card should be considered to be part of the one seamlessly integrated arrangement to provide the merchandise and apparel to the relevant employee: 1. The available balance of the gift card can only be redeemed by the employee on in-house clothing. 2. The Store Gift Card is allocated to an individual employee and is non-transferable. 3. The value loaded on the cards is determined by if the employee is a full-time or a part-time employee. 4. The value loaded onto the employee's gift Card can only be redeemed at the point of sale at the relevant branches and may only be accessed by a manager to process a transaction. 5. If the employee is terminated, they may not use their store card after the cessation of their employment. The provision of the store gift card should be viewed as a convenient way to facilitate the provision of clothing from employer to their employee. Thus, the supplying of the clothing at the time of redemption of the available balance on the employee's gift card (not the provision of the card itself) that should be treated as the sole relevant benefit in the current circumstances for the purposes of the FBTAA. On the basis of the above definition and the principles outlined in ATO ID 2014/17 and CR 20014/56, the provision of clothing by the employer (the "provider") to an employee upon redemption of the store gift card constitutes the provision of "property fringe benefits" in accordance with section 40 of the FBTAA. | Detailed Reasoning - In House Property Fringe Benefits: Under the FBTAA, property fringe benefits can be 'in-house' or 'external'. An 'in-house property fringe benefit' is defined in subsection 136(1) of the FBTAA as follows: in-house property fringe benefit, in relation to an employer, means a property fringe benefit in relation to the employer in respect of tangible property; (a) where both of the following conditions are satisfied: (i) the provider is the employer or an associate of the employer; and (ii) at or about the provision time, the provider carried on a business that consisted of or included the provision of identical or similar property principally to outsiders; or (b) where all of the following conditions are satisfied: (i) the provider is not the employer or an associate of the employer; (ii) the property was acquired by the provider from the employer or an associate of the employer (which employer or associate is in this definition called the seller); and (iii) at or about the provision time, both the provider and the seller carried on a business that consisted of or included the provision of identical or similar property principally to outsiders. An 'external property fringe benefit' is defined in subsection 136(1) of the FBTAA to mean, in relation to an employer, a property fringe benefit other than an in-house property fringe benefit. As established above, the provision of tangible property being the clothing provided by The Taxpayer to the employees via redemption of the gift cards constitutes the provision of a property fringe benefit. Furthermore, the provider of the property fringe benefit is the employer, and the provider carries on a business that consists of the provision of identical or similar property (clothing) principally to outsiders. As such, the benefit provided is an in-house property fringe benefit under paragraph (a) of the definition of "in-house property fringe benefit" in subsection 136(1) of the FBTAA. | Detailed Reasoning - Question 3: Will the in-house property fringe benefit be subject to the valuation rules in section 42(1)(b) of the FBTAA and the reduction in aggregated taxable value in section 62 of the FBTAA? | Summary: The taxable value of the in-house property fringe benefit provided to employees will be calculated under paragraph 42(1)(b) of the FBTAA as the benefit pertains to clothing acquired by the employer and not manufactured, produced or processed by The Taxpayer. The taxable value will then be reduced by the reduction amount as specified in section 62 of the FBTAA. | Detailed Reasoning - Detailed Reasoning: The taxable value of the property fringe benefit depends upon whether the benefit is an in-house property fringe benefit or an external property fringe benefit. As discussed in the response to Question 2 above, the benefit being the provision of clothing by the employer to an employee upon redemption of the gift card is an in-house property fringe benefit. The taxable value of an in-house property fringe benefit is calculated under section 42 of the FBTAA. Subsection 42(1) of the FBTAA provides that: 42(1) Subject to this Part, the taxable value of an in-house property fringe benefit in relation to an employer in relation to a year of tax, is: (aa) if the recipient's property was provided to the recipient under a salary packaging arrangement - an amount equal to the notional value of the recipient's property at the provision time; or (ab) if paragraph (aa) does not apply and the benefit is an airline transport fringe benefit - an amount equal to 75% of the stand-by airline travel value of the benefit at the time the transport starts; or (a) if neither paragraph (aa) nor (ab) applies and the recipient's property was manufactured, produced, processed or treated by the provider: (i) if identical property that was manufactured, produced, processed or treated, as the case may be, by the provider was, at or about the provision time, sold by the provider in the ordinary course of business to purchasers being manufacturers, wholesalers or retailers - an amount equal to: (A) if any of that identical property was, at or about the provision time, sold by the provider under an arm's length transaction or arm's length transactions - the lowest price at which it was sold under such a transaction; or (B) if sub-subparagraph (A) does not apply - the lowest price at which any of that identical property could reasonably be expected to have been sold by the provider at or about the provision time under an arm's length transaction; or (ii) if subparagraph (i) does not apply but identical property that was manufactured, produced, processed or treated, as the case may be, by the provider was, at or about the provision time, sold by the provider: (A) in the ordinary course of business to members of the public under an arm's length transaction or arm's length transactions; and (B) in similar circumstances and subject to identical terms and conditions (other than as to price) as those that applied in relation to the provision of the recipient's property to the recipient; an amount equal to 75% of the lowest price at which that property was so sold to a member of the public; or (iii) in any other case - an amount equal to 75% of the notional value of the recipient's property at the provision time; or (b) if none of the above paragraphs applies and the property was acquired by the provider - an amount equal to the lesser of: (i) the arm's length price in respect of the acquisition of the recipient's property by the provider; or (ii) the notional value of the recipient's property at the provision time; or (c) in any other case - an amount equal to 75% of the notional value of the recipient's property at the provision time; reduced by the amount of the recipient's contribution. The FBTAA does not define the meaning of 'acquired'. Its ordinary meaning must therefore be considered. The Macquarie Dictionary (online) defines 'acquire' as: 1. to come into possession of; get as one's own. Subsection 136(1) defines 'notional value' as: notional value , in relation to the provision of property or another benefit to a person, means the amount that the person could reasonably be expected to have been required to pay to obtain the property or other benefit from the provider under an arm's length transaction. Guidance for determining this amount is provided by Taxation Determination TD 93/231 Fringe benefits tax: what is an acceptable method for determining the 'notional value' of a property fringe benefit for the purposes of sections 42 and 43 of the Fringe Benefits Tax Assessment Act 1986? (TD 93/231). Paragraphs two to five of TD 93/231 state: 2. To ascertain the 'notional value' of a property fringe benefit the employer must determine the amount the employee would have to pay for a comparable (on the basis of age, type and condition) benefit under an arm's length transaction. 3. The ATO will accept a number of ways of obtaining the notional value including: • the price of comparable goods advertised in local newspapers and/or relevant magazines or similar publications, • the price paid for comparable goods at a public auction, • the price of comparable goods at a second-hand store, or • the market value of the goods determined by a qualified valuer. 4. The lowest value obtained using any of these methods will be acceptable. 5. Valuation methods which are not acceptable to this Office include the lease residual value, the tax written value or the 'best offer' made by an employee. In Walstern v. Federal Commissioner of Taxation [2003] FCA 1428; (2003) 138 FCR 1; 2003 ATC 5076; (2003) 54 ATR 423, Hill J in discussing notional value stated at ATC 5092: As already noted, the valuation formula depends upon the 'notional value' in relation to the provision whether of property or of a benefit to each of the Medichs. From the definition it follows that the question to be asked is what is the amount that each of the Medichs could reasonably be expected to have been required to pay to obtain the benefit from the provider under an arm's length transaction. The provider in the present case is Walstern. Hence the question in relation to Mr Ronald Medich, is how much he could reasonably be expected to have been required (i.e., by Walstern) to pay to Walstern to obtain the interest obtained by him in the fund, assuming the transaction between Walstern and him to be at arm's length. 'Recipient's contribution' is defined in subsection 136(1) of the FBTAA as: (a) in relation to a car parking fringe benefit, a property fringe benefit, a residual fringe benefit or a board fringe benefit, being a fringe benefit provided in respect of the employment of an employee of an employer, means the amount of any consideration paid to the provider or to the employer by the recipient or by the employee in respect of the provision of the recipients parking, the recipients property, the recipients benefit or the recipients meal, as the case may be, reduced by the amount of any reimbursement paid to the recipient in respect of that consideration; and... In the current circumstances, paragraphs (aa) and (ab) of subsection 42(1) of the FBTAA do not apply, as the benefits are not provided under a salary packaging arrangement nor are they airline transport fringe benefit. As per the facts, the employer's goods are acquired by the employer and are not manufactured, produced, processed or treated. Where the apparel has been acquired by the employer, the taxable value is calculated as per subsection 42(1)(b). That is the taxable value will be the lessor of the arm's length price in respect of employer's acquisition of the apparel that was provided to their employees, or the notional value of those goods. The notional value will not apply in respect of the goods provided to employees of The Taxpayer as it will be a higher value than the arm's length price in respect of the acquisition of the employee's clothing by The Taxpayer. The taxable value will thus be the arm's length price in respect of the acquisition of the goods by The Taxpayer, less any recipient's contribution. Where an employer provides one or more in-house fringe benefits to a particular employee, the aggregate taxable value of those in-house fringe benefits may be reduced under section 62 of the FBTAA. Section 62 states: 62(1) Where one or more in-house fringe benefits in relation to an employer in relation to a year of tax relate to a particular employee of the employer, the taxable value of that fringe benefit, or the sum of the taxable values of those fringe benefits, as the case may be, in relation to that year shall be reduced by: (a) if the taxable value or the sum of the taxable values does not exceed $1,000 - an amount equal to the taxable value or the sum of the taxable values; or (b) in any other case - $1,000. 62(2) Subsection (1) does not apply to an in-house fringe benefit provided under a salary packaging arrangement. As per the responses to Questions 1 and 2 above, the applicable benefit - being the clothing that The Taxpayer provides to its employees upon redemption of the value that has been pre-loaded onto a gift card - is an 'in-house property fringe benefit'. As such, subsection 62(1) of the FBTAA will apply so that the aggregate taxable value of the in-house property fringe benefits for each employee is reduced by up to $1,000. Therefore, for each employee who receives one or more in-house property fringe benefit, the taxable value will be calculated as follows: 1. Calculate the taxable value of each individual in-house property fringe benefit provided to that employee: • for an in-house property benefit provided to an employee (and/or their associate) that was acquired (and not manufactured, produced, processed or treated) by The Taxpayer, the taxable value will be the arm's length price in respect of the acquisition of those goods, less any recipient's contribution, pursuant to paragraph 42(1)(b) of the FBTAA. 2. The taxable value, or the sum of the taxable values where the employee has received more than one in-house property benefit, is then reduced by the amount specified in subsection 62(1) of the FBTAA. | Detailed Reasoning - Question 4: Will a proposed discount of 25% provided to family members of employees for the purchase, in after-tax dollars, of goods that meet the definition of in-house property benefits, result in a nil taxable value? | Summary: The taxable value of the in-house property fringe benefit provided to associates will be calculated under paragraph 42(1)(b) of the FBTAA as the benefit pertains to clothing acquired by the employer and not manufactured, produced or processed by The Taxpayer. The provision of a 25% discount on the retail price of trading stock of the Taxpayer to family members of the Taxpayers' employees will result in the provision of benefits with a nil taxable value, as the price paid for the goods will always exceed the taxable value of the fringe benefit. | Detailed Reasoning - Detailed reasoning: In brief a fringe benefit is a benefit provided by an employer during the year, to an employee or an associate of the employee, in respect of the employment of the employee and the benefit is not one that is specifically excluded. An 'employee' is defined in subsection 136(1) of the FBTAA to mean a current, future or former employee. An 'associate' is defined in subsection 136(1) of the FBTAA to have the meaning given by section 318 of the Income Tax Assessment Act 1936 (ITAA 1936). Subsection 318(1) of the ITAA 1936 states that an associate of a natural person includes a relative of that person. In this case, the employer is proposing to provide family members of the employee ('associates') with a 25% discount on retail prices of clothing ('property') acquired by The Taxpayer. As the provider carries on a business that consists of the provision of identical or similar property (clothing) principally to outsiders the benefit provided is an in-house property fringe benefit under paragraph (a) of the definition of "in-house property fringe benefit" in subsection 136(1) of the FBTAA. As outlined in Question 3, the taxable value of an in-house property fringe benefit is calculated under section 42(1)(b) of the FBTAA where the benefit pertains to general merchandise and apparel acquired by the employer and not manufactured, produced or processed by the employer. However, as the discounted value of the goods is calculated in relation to the retail price of the goods, the property benefit will only eventuate if the amount paid by the associate is less than the valuation arrived at using section 42(1)(b) of the FBTAA. As outlined in the facts, the acquisition price to the Taxpayer of the trading stock is on average less than 40% of the retail price of the goods. As the price being paid by the associate in after tax dollars is equal to 75% of the retail price of the goods, it will always exceed the in-house property taxable value of the goods and as such, after applying the reduction for the price paid by the employees' associate from the value of the in-house property, the taxable value for FBT purposes will be nil.