Product Ruling PR 2021/9
Date of effect: 1 July 2020

What this ruling is about: 1. This Product Ruling sets out the Commissioner's opinion on the way in which the relevant provisions identified in the Ruling section apply to the defined class of entities that takes part in the scheme to which this Product Ruling relates. All legislative references in this Product Ruling are to the Income Tax Assessment Act 1997 unless otherwise indicated. 2. In this Product Ruling the scheme involves the execution of a Subscription Agreement offered by Motopool Holdings Pty Ltd trading as Motopool (Motopool) pursuant to which a Vehicle is subscribed for from Motopool. 3. This Product Ruling does not address: 4. Subject to paragraph 3 and subparagraph 16(b) of this Product Ruling, this Product Ruling addresses the taxation consequences associated with four different scenarios, described at paragraphs 27 to 30 of this Product Ruling and referred to respectively for the purposes of this Product Ruling as the: Class of entities 5. This part of the Product Ruling specifies which entities can rely on the Ruling section of this Product Ruling and which entities cannot rely on the Ruling section. Those entities that can rely on the Ruling section are referred to as the Individual Customer and the Business Customer. 6. The class of entities that can rely on the Ruling section of this Product Ruling consists of those entities that enter into the scheme described in paragraphs 17 to 31 of this Product Ruling on or after 1 July 2020, and on or before 30 June 2023 and are an: 7. The class of entities that can rely on the Ruling section of this Product Ruling does not include entities that: Superannuation Industry (Supervision) Act 1993 8. This Product Ruling does not address the provisions of the Superannuation Industry (Supervision) Act 1993 (SISA). The Commissioner gives no assurance that the scheme is an appropriate investment for a super fund. The trustees of super funds are advised that no consideration has been given in this Product Ruling as to whether investment in this scheme may contravene the provisions of the SISA. Qualifications 9. The class of entities defined in this Product Ruling may rely on it provided the scheme is actually carried out in accordance with the scheme described in paragraphs 17 to 31 of this Product Ruling. 10. If the scheme actually carried out is materially different from the scheme that is described in this Product Ruling, then this Product Ruling:

Class of entities or scheme: 5. This part of the Product Ruling specifies which entities can rely on the Ruling section of this Product Ruling and which entities cannot rely on the Ruling section. Those entities that can rely on the Ruling section are referred to as the Individual Customer and the Business Customer. 6. The class of entities that can rely on the Ruling section of this Product Ruling consists of those entities that enter into the scheme described in paragraphs 17 to 31 of this Product Ruling on or after 1 July 2020, and on or before 30 June 2023 and are an: 7. The class of entities that can rely on the Ruling section of this Product Ruling does not include entities that: | Superannuation Industry (Supervision) Act 1993: 8. This Product Ruling does not address the provisions of the Superannuation Industry (Supervision) Act 1993 (SISA). The Commissioner gives no assurance that the scheme is an appropriate investment for a super fund. The trustees of super funds are advised that no consideration has been given in this Product Ruling as to whether investment in this scheme may contravene the provisions of the SISA. | Qualifications: 9. The class of entities defined in this Product Ruling may rely on it provided the scheme is actually carried out in accordance with the scheme described in paragraphs 17 to 31 of this Product Ruling. 10. If the scheme actually carried out is materially different from the scheme that is described in this Product Ruling, then this Product Ruling: 11. This Product Ruling applies from 1 July 2020. It applies only to the specified class of entities that enter into the scheme from 1 July 2020 until 30 June 2023, being its period of application. This Product Ruling will continue to apply to those entities even after its period of application has ended for the scheme entered into during the period of application. 12. However, the Product Ruling only applies to the extent that there is no change in the scheme or in the entity's involvement in the scheme. | Changes in the law: 13. Although this Product Ruling deals with the income tax and fringe benefits tax laws enacted at the time it was issued, later amendments may impact on this Product Ruling. Any such changes will take precedence over the application of this Product Ruling and, to that extent, this Product Ruling will have no effect. 14. Entities that are considering participating in the scheme are advised to confirm with their taxation adviser that changes in the law have not affected this Product Ruling since it was issued. | Note to promoters and advisers: 15. Product Rulings were introduced for the purpose of providing certainty about tax consequences for entities in schemes such as this. In keeping with that intention, the Commissioner suggests that promoters and advisers ensure that participants are fully informed of any legislative changes after the Product Ruling has issued. 16. Subject to paragraph 3 of this Product Ruling and the assumptions in paragraph 31 of this Product Ruling: 17. The scheme that is the subject of this Product Ruling is identified and described in the following documents: Note: Certain information has been provided on a commercial-in-confidence basis and will not be disclosed or released under Freedom of Information legislation. 18. For the purposes of describing the scheme to which this Product Ruling applies, there are no other agreements, whether formal or informal, and whether or not legally enforceable, which an Individual Customer or Business Customer, or any associate of an Individual Customer or Business Customer, will be a party to, which are a part of the scheme. Unless otherwise defined, capitalised terms in this Product Ruling take their meaning as per the Subscription Terms and Conditions. 19. All Australian Securities and Investments Commission requirements are, or will be, complied with for the term of the agreements. | Overview: 20. Motopool offers a car subscription service under which the Subscription Agreement between itself and a Subscriber is entered into. 21. The Subscription Agreement, together with the Subscription Terms and Conditions, sets out the terms of the agreement between Motopool and the Subscriber, as well as the terms of the subscription of the Vehicle by Motopool to the Authorised Driver. 22. Depending on which of the four scenarios described at paragraphs 27 to 30 of this Product Ruling applies, the Subscriber and the Authorised Driver of the Vehicle, or both, under a Subscription Agreement can be any one of the Individual Customer, the Business Customer and/or the employee of the Business Customer. Motopool maintains ownership of the Vehicle provided during the subscription period. 23. Under the terms of the Subscription Agreement, Subscribers pay an all-inclusive weekly Subscription Fee to Motopool covering the hire of the Vehicle, insurance, registration, servicing and roadside assistance. 24. The subscription period under the Subscription Agreement is a fixed-term subscription for a predetermined, fixed period of a minimum of 60 days. 25. Subscribers have the option to Swap the Vehicle subscribed for via written request to Motopool no less than 21 days in advance. The option to Swap the Vehicle is available to the Subscriber for a Swap Fee unless made available by Motopool without cost where the Subscriber has maintained a current subscription for 90 consecutive days. 26. The Vehicle subscribed for following a Swap will be subject to a new Subscription Agreement and the Subscription Fee applicable to that Vehicle will apply from the date of the Swap. The term of the subscription period will recommence from the date of the Swap. | Scenarios: 27. Under the Individual Customer Scenario: 28. Under the Business Customer Scenario: 29. Under the Arranger Scenario: 30. Under the Reimbursement Scenario: | Assumptions: 31. This Product Ruling is made on the basis of the following assumptions: Commissioner of Taxation 25 August 2021 | Deductibility of the Subscription Fees and operational costs: 32. Section 8-1 allows a deduction for any loss or outgoing to the extent that it is incurred in gaining or producing assessable income or it is necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income, provided that the loss or outgoing is not of a capital, private or domestic nature. 33. Where the Vehicle subscribed for under the Subscription Agreement by the Individual Customer under the Individual Customer Scenario is used by the Individual Customer in gaining or producing their assessable income, the Individual Customer will be entitled to a deduction under section 8-1 for payments of the Subscription Fee to Motopool, and operational costs incurred in relation to the Vehicle, to the extent that the Vehicle is used in gaining or producing the Individual Customer's assessable income (and not used for private purposes). 34. Where the Vehicle under the Subscription Agreement is subscribed for by an Individual Business Customer, the Individual Business Customer will be entitled to a deduction under section 8-1 for payments of the Subscription Fee to Motopool, and operational costs incurred in relation to the Vehicle, to the extent that the Vehicle is used in carrying on a business for the purpose of gaining or producing the Individual Business Customer's assessable income (and not used for private purposes). 35. Where the Vehicle is subscribed for under the Subscription Agreement by the Business Customer for provision to its employee under either the Business Customer Scenario or the Arranger Scenario, the Subscription Fee payments made by the Business Customer to Motopool in accordance with its obligations under the Subscription Agreement are outgoings of the Business Customer, as an employer, that are necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income (and not outgoings of a private nature). Payments of the Subscription Fee by the Business Customer under the Business Customer Scenario and the Arranger Scenario are therefore deductible pursuant to section 8-1. | Calculation of car expense deductions - Division 28: 36. Division 28 sets out the rules for working out deductions for 'car expenses' in respect of cars that are owned, leased or hired under a hire purchase agreement by an individual or a partnership that includes at least one individual (sections 28-1 and 28-10). 37. Unless an exception under Subdivision 28-J applies, deductions for car expenses can be calculated using one of the two methods (section 28-12). 38. For the purposes of Division 28, section 28-13 provides that a car expense is a loss or outgoing to do with a car and includes a loss or outgoing to do with operating a car. 39. The Subscription Fee payable by the Subscriber under the Subscription Agreement is a loss or outgoing to do with a car. Operational costs (including fuel and tolls) paid in respect of the Vehicle constitute a loss or outgoing to do with operating a car. 40. Subdivision 28-J sets out the situations where neither of the two methods can be used or need to be used. These situations involve either the nature of the car or the way it is used (section 28-160). 41. Certain types of car taken on hire are prohibited by subsection 28-165(1) from using either of the two methods of calculating deductions for car expenses. In particular, subsection 28-165(1) applies to subsection 28-165(4), which states: 42. Where either of the two methods to calculate deductions for car expenses cannot be used as result of the operation of subsection 28-165(4), the individual (or partnership) must instead calculate the deductions under the normal principles governing deductions, including the rules for apportioning a loss or outgoing that is only partly attributable to producing assessable income (subsection 28-165(2)). 43. Since the expression 'short term' is not defined for the purposes of Division 28, it takes its ordinary meaning in the context of subsection 28-165(4). 44. Dictionary meanings of the expression 'short term' (as well as the words 'short' and 'term' separately) indicate a brief, low in amount, time or period through which something lasts, or to which limits have been set, such that it is limited in scope and having a comparatively short period of time, is contemplated. [1] 45. Further, the imposition of a limitation on the scope of the general expression 'short term' by the application of the ejusdem generis principle, presupposes the identification of a group of 'like matters'. In the case of subsection 28-165(4), it is considered that a group of like matters has been created in the form of the words 'hourly, daily, weekly' which operate to limit the general expression 'short term'. Therefore, in considering the expression, 'hourly, daily, weekly or short term' basis, 'short term' must be something of or as the same kind with the words that precede it. 46. Considering these points, the Commissioner is of the view that the expression 'short term' in subsection 28-165(4) means a period of up to one month. 47. The Vehicle under the Subscription Agreement is subscribed for by the Individual Customer or the Individual Business Customer for a subscription period of longer than one month (such that it is hired on a longer than short term basis). That Vehicle will therefore not be taken to be a car to which subsection 28-165(4) applies and subsection 28-165(1) will not apply to prohibit the use of the two methods to calculate their deductions for car expenses. 48. Subsection 28-165(4) requires you to ascertain the true nature of the transaction by a consideration of the character of the agreement, so as to determine whether the agreement itself is of a kind ordinarily entered into by people who take cars on hire intermittently, as the occasion requires, on a short term basis. This is a determination which would be made upon entry into the agreement. 49. Therefore, the option to Swap the Vehicle under that Subscription Agreement does not affect the characterisation of the agreement for the purposes of subsection 28-165(4). Similarly, where the Individual Customer or the Individual Business Customer Swaps the Vehicle within one month of the subscription period commencing, the characterisation of the agreement will not be affected for the purposes of subsection 28-165(4). | FBT consequences in respect of provision of Vehicle: 50. Subsection 7(1) of the FBTAA provides that where, in respect of the employment of an employee, a car held by a person (referred to as the 'provider'): then the application or availability of the car shall be taken to constitute a benefit provided by the provider to the employee in respect of the employment of the employee. 51. Paragraphs 162(1)(a) and (b) of the FBTAA respectively provide that a car is held by a person when the car is owned by that person or leased to that person. Pursuant to the assumption at subparagraph 31(c) of this Product Ruling, the Business Customer under the Business Customer Scenario and Motopool under the Arranger Scenario is a 'person' as defined in subsection 136(1) of the FBTAA. 52. As the Business Customer under the Business Customer Scenario will be the person to whom the Vehicle is leased, subject to subsection 7(7) of the FBTAA the Business Customer will hold the Vehicle (and be the provider) for the purposes of section 7 of the FBTAA. Similarly, as Motopool under the Arranger Scenario will be the person that owns the Vehicle, subject to subsection 7(7) of the FBTAA Motopool will hold the Vehicle (and be the provider) for the purposes of section 7 of the FBTAA. 53. Pursuant to paragraph 7(7)(b) of the FBTAA, a reference in Division 2 of the FBTAA to 'a car held by a person' does not include a reference to a car let on hire to the provider under an agreement of a kind ordinarily entered into by persons taking cars on hire intermittently as occasion requires on an hourly, daily, weekly or other short term basis, unless the car has been, or may reasonably be, expected to be on hire under successive agreements of a kind that result in substantial continuity of the hiring of the car. 54. Chapter 7 (Car fringe benefits) of the Fringe benefits tax - a guide for employers (the Guide) provides that cars hired under an agreement for a period of less than three months are, for the purposes of administering subsection 7(7) FBTAA, considered to be hired under an agreement of a kind ordinarily entered into by persons taking cars on hire intermittently as occasion requires on a short term basis, and therefore not 'held' (subject to the exception for cars hired under successive agreements). Chapter 7.1 of the Guide sets out: 55. Where the Vehicle under the Subscription Agreement is subscribed for by the Business Customer under the Business Customer Scenario for a subscription period of less than three months (on a short term basis), unless the Vehicle has been or may reasonably be expected to be on hire under successive agreements of a kind that result in substantial continuity of the hiring of the Vehicle, that Vehicle will be taken to be a car to which subsection 7(7) of the FBTAA applies. The Business Customer under these circumstances will not, for the purposes of section 7 of the FBTAA, be taken to hold the Vehicle and its provision to the Business Customer's employee will not constitute a car benefit provided by the Business Customer. 56. Where the Vehicle under the Subscription Agreement is subscribed for by the Business Customer under the Business Customer Scenario for a subscription period of less than three months (on a short term basis), and the Vehicle has not been and may not reasonably be expected to be on hire under successive agreements of a kind that result in substantial continuity of the hiring of the Vehicle, the provision of the Vehicle to the Business Customer's employee will constitute a residual benefit under section 45 of the FBTAA (as provided for in the Guide). 57. Where the Vehicle under the Subscription Agreement is subscribed for by the Business Customer under the Business Customer Scenario for a subscription period of three months or longer (such that it is hired on a longer than short term basis), that Vehicle will not be taken to be a car to which subsection 7(7) of the FBTAA applies. Therefore, where the Vehicle subscribed for by the Business Customer under these circumstances is applied to a private use by the employee or (pursuant to subsection 7(2) of the FBTAA) is taken to be available for the private use of the employee, the application or availability of the Vehicle will constitute a car benefit provided by the Business Customer to the employee in respect of the employee's employment pursuant to subsection 7(1) of the FBTAA. 58. As noted at paragraph 48 of this Product Ruling in the context of subsection 28-165(4), where the Business Customer enters into a Subscription Agreement with Motopool for a subscription period that is longer than a short term basis for the purposes of subsection 7(7) of the FBTAA, the option to Swap the Vehicle under that Subscription Agreement will not affect the characterisation of the agreement. Similarly, where the Business Customer enters into a Subscription Agreement with Motopool for a subscription period that is longer than a short term basis but Swaps the Vehicle within three months of the subscription period commencing, the characterisation of the agreement for the purposes of subsection 7(7) of the FBTAA will not be affected. 59. Where the Vehicle under the Subscription Agreement is subscribed for by the Business Customer under the Arranger Scenario and applied to a private use by the employee or (pursuant to subsection 7(2) of the FBTAA) is taken to be available for the private use of the employee, the application or availability of the Vehicle will constitute a car benefit provided by the Business Customer to the employee in respect of the employee's employment pursuant to subsection 7(1) of the FBTAA. As the provider under these circumstances is Motopool (rather than the Business Customer) and the references to 'a car held by a person' under Division 2 of the FBTAA which are excluded by paragraph 7(7)(b) of the FBTAA are limited to cars let on hire to the provider (as per paragraph 53 of this Product Ruling), the duration of the subscription period under the Arranger Scenario is immaterial. | Calculating the taxable value of car fringe benefits: 60. Where the provision of the Vehicle to the employee under the Business Customer Scenario constitutes a car fringe benefit, defined in subsection 136(1) of the FBTAA to mean a fringe benefit that is a car benefit, the taxable value of that car fringe benefit will be calculated by the Business Customer using the statutory formula method in section 9 of the FBTAA, unless the Business Customer elects to use the operating cost method in section 10 of the FBTAA. 61. The statutory formula method applies a statutory rate to the base value of a car. Where the car is owned by the provider, as is the case in respect of Motopool under the Arranger Scenario, the base value of the Vehicle subscribed for under the Subscription Agreement is determined under paragraph 9(2)(a) of the FBTAA by reference to the 'cost price' of the Vehicle to Motopool (excluding registration and stamp duty), the cost of any fitted non-business accessories and dealer delivery charges. [2] 62. Where the car is subscribed for by the provider, as is the case in respect of the Business Customer under the Business Customer Scenario, the base value of the Vehicle subscribed for under the Subscription Agreement is determined under paragraph 9(2)(a) of the FBTAA by reference to the 'leased car value' of the Vehicle and any non-business accessories added after Motopool purchased the Vehicle. 63. Where the subscription period under the Subscription Agreement commenced at or about the time Motopool purchased the Vehicle, the leased car value will be the cost price of the Vehicle to Motopool (inclusive of GST and any luxury car tax), and where Motopool purchased the Vehicle at some other time, the leased car value will be the market value of the Vehicle at the time the subscription period under the Subscription Agreement commenced (that is, the amount a person could reasonably be expected to have paid to purchase the Vehicle under an arm's length transaction). 64. The taxable value of a car fringe benefit calculated under the operating cost method is a percentage (representing the extent of the business use percentage applicable to the car) of the total costs of operating the car during the year. The operating costs of the Vehicle determined under paragraph 10(3)(a) of the FBTAA in respect of both the Business Customer Scenario and the Arranger Scenario will include the Subscription Fees paid by the Business Customer to Motopool and any costs paid for by the Business Customer in relation to the operation of the Vehicle. | FBT consequences under the Reimbursement Scenario: 65. Where a person (referred to as the provider) reimburses another person (referred to as the recipient), in whole or in part, in respect of an amount of expenditure incurred by the recipient, that reimbursement will constitute an expense payment benefit pursuant to section 20 of the FBTAA. 66. The reimbursement of the employee by the Business Customer for the Subscription Fees paid by the employee to Motopool under the Reimbursement Scenario will constitute an expense payment benefit under section 20 of the FBTAA. 67. As the Vehicle under the Reimbursement Scenario is subscribed for by the employee (rather than the Business Customer) the Vehicle is not held by the Business Customer in accordance with section 162 of the FBTAA and the requirements under section 7 of the FBTAA in relation to car benefits are not satisfied. | Anti-avoidance: 68. Provided that the scheme ruled on is entered into and carried out as described in this Product Ruling, it is accepted that the scheme is an ordinary commercial transaction and neither Part IVA of the ITAA 1936 or section 67 of the FBTAA will apply. 69. The following is a detailed contents list for this Product Ruling: © AUSTRALIAN TAXATION OFFICE FOR THE COMMONWEALTH OF AUSTRALIA You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products). Not previously issued as a draft

Ruling: This Product Ruling has been given on the basis that the entity(s) that applied for the Product Ruling, and their associates, will abide by strict terms of use. Any failure to comply with the terms of use may lead to the withdrawal of this Product Ruling. 1. This Product Ruling sets out the Commissioner's opinion on the way in which the relevant provisions identified in the Ruling section apply to the defined class of entities that takes part in the scheme to which this Product Ruling relates. All legislative references in this Product Ruling are to the Income Tax Assessment Act 1997 unless otherwise indicated. 2. In this Product Ruling the scheme involves the execution of a Subscription Agreement offered by Motopool Holdings Pty Ltd trading as Motopool (Motopool) pursuant to which a Vehicle is subscribed for from Motopool. 3. This Product Ruling does not address: 4. Subject to paragraph 3 and subparagraph 16(b) of this Product Ruling, this Product Ruling addresses the taxation consequences associated with four different scenarios, described at paragraphs 27 to 30 of this Product Ruling and referred to respectively for the purposes of this Product Ruling as the: | Class of entities: 5. This part of the Product Ruling specifies which entities can rely on the Ruling section of this Product Ruling and which entities cannot rely on the Ruling section. Those entities that can rely on the Ruling section are referred to as the Individual Customer and the Business Customer. 6. The class of entities that can rely on the Ruling section of this Product Ruling consists of those entities that enter into the scheme described in paragraphs 17 to 31 of this Product Ruling on or after 1 July 2020, and on or before 30 June 2023 and are an: 7. The class of entities that can rely on the Ruling section of this Product Ruling does not include entities that: | Superannuation Industry (Supervision) Act 1993: 8. This Product Ruling does not address the provisions of the Superannuation Industry (Supervision) Act 1993 (SISA). The Commissioner gives no assurance that the scheme is an appropriate investment for a super fund. The trustees of super funds are advised that no consideration has been given in this Product Ruling as to whether investment in this scheme may contravene the provisions of the SISA. | Qualifications: 9. The class of entities defined in this Product Ruling may rely on it provided the scheme is actually carried out in accordance with the scheme described in paragraphs 17 to 31 of this Product Ruling. 10. If the scheme actually carried out is materially different from the scheme that is described in this Product Ruling, then this Product Ruling:


Appendix: Deductibility of the Subscription Fees and operational costs: 32. Section 8-1 allows a deduction for any loss or outgoing to the extent that it is incurred in gaining or producing assessable income or it is necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income, provided that the loss or outgoing is not of a capital, private or domestic nature. 33. Where the Vehicle subscribed for under the Subscription Agreement by the Individual Customer under the Individual Customer Scenario is used by the Individual Customer in gaining or producing their assessable income, the Individual Customer will be entitled to a deduction under section 8-1 for payments of the Subscription Fee to Motopool, and operational costs incurred in relation to the Vehicle, to the extent that the Vehicle is used in gaining or producing the Individual Customer's assessable income (and not used for private purposes). 34. Where the Vehicle under the Subscription Agreement is subscribed for by an Individual Business Customer, the Individual Business Customer will be entitled to a deduction under section 8-1 for payments of the Subscription Fee to Motopool, and operational costs incurred in relation to the Vehicle, to the extent that the Vehicle is used in carrying on a business for the purpose of gaining or producing the Individual Business Customer's assessable income (and not used for private purposes). 35. Where the Vehicle is subscribed for under the Subscription Agreement by the Business Customer for provision to its employee under either the Business Customer Scenario or the Arranger Scenario, the Subscription Fee payments made by the Business Customer to Motopool in accordance with its obligations under the Subscription Agreement are outgoings of the Business Customer, as an employer, that are necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income (and not outgoings of a private nature). Payments of the Subscription Fee by the Business Customer under the Business Customer Scenario and the Arranger Scenario are therefore deductible pursuant to section 8-1. | Calculation of car expense deductions - Division 28: 36. Division 28 sets out the rules for working out deductions for 'car expenses' in respect of cars that are owned, leased or hired under a hire purchase agreement by an individual or a partnership that includes at least one individual (sections 28-1 and 28-10). 37. Unless an exception under Subdivision 28-J applies, deductions for car expenses can be calculated using one of the two methods (section 28-12). 38. For the purposes of Division 28, section 28-13 provides that a car expense is a loss or outgoing to do with a car and includes a loss or outgoing to do with operating a car. 39. The Subscription Fee payable by the Subscriber under the Subscription Agreement is a loss or outgoing to do with a car. Operational costs (including fuel and tolls) paid in respect of the Vehicle constitute a loss or outgoing to do with operating a car. 40. Subdivision 28-J sets out the situations where neither of the two methods can be used or need to be used. These situations involve either the nature of the car or the way it is used (section 28-160). 41. Certain types of car taken on hire are prohibited by subsection 28-165(1) from using either of the two methods of calculating deductions for car expenses. In particular, subsection 28-165(1) applies to subsection 28-165(4), which states: 42. Where either of the two methods to calculate deductions for car expenses cannot be used as result of the operation of subsection 28-165(4), the individual (or partnership) must instead calculate the deductions under the normal principles governing deductions, including the rules for apportioning a loss or outgoing that is only partly attributable to producing assessable income (subsection 28-165(2)). 43. Since the expression 'short term' is not defined for the purposes of Division 28, it takes its ordinary meaning in the context of subsection 28-165(4). 44. Dictionary meanings of the expression 'short term' (as well as the words 'short' and 'term' separately) indicate a brief, low in amount, time or period through which something lasts, or to which limits have been set, such that it is limited in scope and having a comparatively short period of time, is contemplated. [1] 45. Further, the imposition of a limitation on the scope of the general expression 'short term' by the application of the ejusdem generis principle, presupposes the identification of a group of 'like matters'. In the case of subsection 28-165(4), it is considered that a group of like matters has been created in the form of the words 'hourly, daily, weekly' which operate to limit the general expression 'short term'. Therefore, in considering the expression, 'hourly, daily, weekly or short term' basis, 'short term' must be something of or as the same kind with the words that precede it. 46. Considering these points, the Commissioner is of the view that the expression 'short term' in subsection 28-165(4) means a period of up to one month. 47. The Vehicle under the Subscription Agreement is subscribed for by the Individual Customer or the Individual Business Customer for a subscription period of longer than one month (such that it is hired on a longer than short term basis). That Vehicle will therefore not be taken to be a car to which subsection 28-165(4) applies and subsection 28-165(1) will not apply to prohibit the use of the two methods to calculate their deductions for car expenses. 48. Subsection 28-165(4) requires you to ascertain the true nature of the transaction by a consideration of the character of the agreement, so as to determine whether the agreement itself is of a kind ordinarily entered into by people who take cars on hire intermittently, as the occasion requires, on a short term basis. This is a determination which would be made upon entry into the agreement. 49. Therefore, the option to Swap the Vehicle under that Subscription Agreement does not affect the characterisation of the agreement for the purposes of subsection 28-165(4). Similarly, where the Individual Customer or the Individual Business Customer Swaps the Vehicle within one month of the subscription period commencing, the characterisation of the agreement will not be affected for the purposes of subsection 28-165(4). | FBT consequences in respect of provision of Vehicle: 50. Subsection 7(1) of the FBTAA provides that where, in respect of the employment of an employee, a car held by a person (referred to as the 'provider'): then the application or availability of the car shall be taken to constitute a benefit provided by the provider to the employee in respect of the employment of the employee. 51. Paragraphs 162(1)(a) and (b) of the FBTAA respectively provide that a car is held by a person when the car is owned by that person or leased to that person. Pursuant to the assumption at subparagraph 31(c) of this Product Ruling, the Business Customer under the Business Customer Scenario and Motopool under the Arranger Scenario is a 'person' as defined in subsection 136(1) of the FBTAA. 52. As the Business Customer under the Business Customer Scenario will be the person to whom the Vehicle is leased, subject to subsection 7(7) of the FBTAA the Business Customer will hold the Vehicle (and be the provider) for the purposes of section 7 of the FBTAA. Similarly, as Motopool under the Arranger Scenario will be the person that owns the Vehicle, subject to subsection 7(7) of the FBTAA Motopool will hold the Vehicle (and be the provider) for the purposes of section 7 of the FBTAA. 53. Pursuant to paragraph 7(7)(b) of the FBTAA, a reference in Division 2 of the FBTAA to 'a car held by a person' does not include a reference to a car let on hire to the provider under an agreement of a kind ordinarily entered into by persons taking cars on hire intermittently as occasion requires on an hourly, daily, weekly or other short term basis, unless the car has been, or may reasonably be, expected to be on hire under successive agreements of a kind that result in substantial continuity of the hiring of the car. 54. Chapter 7 (Car fringe benefits) of the Fringe benefits tax - a guide for employers (the Guide) provides that cars hired under an agreement for a period of less than three months are, for the purposes of administering subsection 7(7) FBTAA, considered to be hired under an agreement of a kind ordinarily entered into by persons taking cars on hire intermittently as occasion requires on a short term basis, and therefore not 'held' (subject to the exception for cars hired under successive agreements). Chapter 7.1 of the Guide sets out: 55. Where the Vehicle under the Subscription Agreement is subscribed for by the Business Customer under the Business Customer Scenario for a subscription period of less than three months (on a short term basis), unless the Vehicle has been or may reasonably be expected to be on hire under successive agreements of a kind that result in substantial continuity of the hiring of the Vehicle, that Vehicle will be taken to be a car to which subsection 7(7) of the FBTAA applies. The Business Customer under these circumstances will not, for the purposes of section 7 of the FBTAA, be taken to hold the Vehicle and its provision to the Business Customer's employee will not constitute a car benefit provided by the Business Customer. 56. Where the Vehicle under the Subscription Agreement is subscribed for by the Business Customer under the Business Customer Scenario for a subscription period of less than three months (on a short term basis), and the Vehicle has not been and may not reasonably be expected to be on hire under successive agreements of a kind that result in substantial continuity of the hiring of the Vehicle, the provision of the Vehicle to the Business Customer's employee will constitute a residual benefit under section 45 of the FBTAA (as provided for in the Guide). 57. Where the Vehicle under the Subscription Agreement is subscribed for by the Business Customer under the Business Customer Scenario for a subscription period of three months or longer (such that it is hired on a longer than short term basis), that Vehicle will not be taken to be a car to which subsection 7(7) of the FBTAA applies. Therefore, where the Vehicle subscribed for by the Business Customer under these circumstances is applied to a private use by the employee or (pursuant to subsection 7(2) of the FBTAA) is taken to be available for the private use of the employee, the application or availability of the Vehicle will constitute a car benefit provided by the Business Customer to the employee in respect of the employee's employment pursuant to subsection 7(1) of the FBTAA. 58. As noted at paragraph 48 of this Product Ruling in the context of subsection 28-165(4), where the Business Customer enters into a Subscription Agreement with Motopool for a subscription period that is longer than a short term basis for the purposes of subsection 7(7) of the FBTAA, the option to Swap the Vehicle under that Subscription Agreement will not affect the characterisation of the agreement. Similarly, where the Business Customer enters into a Subscription Agreement with Motopool for a subscription period that is longer than a short term basis but Swaps the Vehicle within three months of the subscription period commencing, the characterisation of the agreement for the purposes of subsection 7(7) of the FBTAA will not be affected. 59. Where the Vehicle under the Subscription Agreement is subscribed for by the Business Customer under the Arranger Scenario and applied to a private use by the employee or (pursuant to subsection 7(2) of the FBTAA) is taken to be available for the private use of the employee, the application or availability of the Vehicle will constitute a car benefit provided by the Business Customer to the employee in respect of the employee's employment pursuant to subsection 7(1) of the FBTAA. As the provider under these circumstances is Motopool (rather than the Business Customer) and the references to 'a car held by a person' under Division 2 of the FBTAA which are excluded by paragraph 7(7)(b) of the FBTAA are limited to cars let on hire to the provider (as per paragraph 53 of this Product Ruling), the duration of the subscription period under the Arranger Scenario is immaterial. | Calculating the taxable value of car fringe benefits: 60. Where the provision of the Vehicle to the employee under the Business Customer Scenario constitutes a car fringe benefit, defined in subsection 136(1) of the FBTAA to mean a fringe benefit that is a car benefit, the taxable value of that car fringe benefit will be calculated by the Business Customer using the statutory formula method in section 9 of the FBTAA, unless the Business Customer elects to use the operating cost method in section 10 of the FBTAA. 61. The statutory formula method applies a statutory rate to the base value of a car. Where the car is owned by the provider, as is the case in respect of Motopool under the Arranger Scenario, the base value of the Vehicle subscribed for under the Subscription Agreement is determined under paragraph 9(2)(a) of the FBTAA by reference to the 'cost price' of the Vehicle to Motopool (excluding registration and stamp duty), the cost of any fitted non-business accessories and dealer delivery charges. [2] 62. Where the car is subscribed for by the provider, as is the case in respect of the Business Customer under the Business Customer Scenario, the base value of the Vehicle subscribed for under the Subscription Agreement is determined under paragraph 9(2)(a) of the FBTAA by reference to the 'leased car value' of the Vehicle and any non-business accessories added after Motopool purchased the Vehicle. 63. Where the subscription period under the Subscription Agreement commenced at or about the time Motopool purchased the Vehicle, the leased car value will be the cost price of the Vehicle to Motopool (inclusive of GST and any luxury car tax), and where Motopool purchased the Vehicle at some other time, the leased car value will be the market value of the Vehicle at the time the subscription period under the Subscription Agreement commenced (that is, the amount a person could reasonably be expected to have paid to purchase the Vehicle under an arm's length transaction). 64. The taxable value of a car fringe benefit calculated under the operating cost method is a percentage (representing the extent of the business use percentage applicable to the car) of the total costs of operating the car during the year. The operating costs of the Vehicle determined under paragraph 10(3)(a) of the FBTAA in respect of both the Business Customer Scenario and the Arranger Scenario will include the Subscription Fees paid by the Business Customer to Motopool and any costs paid for by the Business Customer in relation to the operation of the Vehicle. | FBT consequences under the Reimbursement Scenario: 65. Where a person (referred to as the provider) reimburses another person (referred to as the recipient), in whole or in part, in respect of an amount of expenditure incurred by the recipient, that reimbursement will constitute an expense payment benefit pursuant to section 20 of the FBTAA. 66. The reimbursement of the employee by the Business Customer for the Subscription Fees paid by the employee to Motopool under the Reimbursement Scenario will constitute an expense payment benefit under section 20 of the FBTAA. 67. As the Vehicle under the Reimbursement Scenario is subscribed for by the employee (rather than the Business Customer) the Vehicle is not held by the Business Customer in accordance with section 162 of the FBTAA and the requirements under section 7 of the FBTAA in relation to car benefits are not satisfied. | Anti-avoidance: 68. Provided that the scheme ruled on is entered into and carried out as described in this Product Ruling, it is accepted that the scheme is an ordinary commercial transaction and neither Part IVA of the ITAA 1936 or section 67 of the FBTAA will apply.


What this Ruling is about | NOT LEGALLY BINDING SECTION: | If this Ruling applies to you, and you correctly rely on it, we will apply the law to you in the way set out in this Ruling. That is, you will not pay any more tax or penalties or interest in respect of the matters covered by this Ruling. | Potential participants must form their own view about the commercial and financial viability of the product. The Commissioner recommends a financial (or other) adviser be consulted for such information. | This Product Ruling provides certainty for potential participants by confirming that the tax benefits set out in the Ruling part of this document are available, provided that the scheme is carried out in accordance with the information we have been given, and have described below in the Scheme part of this document. If the scheme is not carried out as described, participants lose the protection of this Product Ruling. | If you hire a car for less than three months, you are not considered to 'hold' the car and it will not result in a car fringe benefit. However, if you make a rental car ... available for the private use of an employee, and the car is hired for less than three months, a residual fringe benefit may arise. | Appendix 2 - Detailed contents list


Legislative references: ITAA 1936 Pt IVA ITAA 1997 8-1 ITAA 1997 Div 28 ITAA 1997 28-1 ITAA 1997 28-10 ITAA 1997 28-12 ITAA 1997 28-13 ITAA 1997 Subdiv 28-C ITAA 1997 Subdiv 28-F ITAA 1997 Subdiv 28-J ITAA 1997 28-160 ITAA 1997 28-165(1) ITAA 1997 28-165(2) ITAA 1997 28-165(4) ITAA 1997 28-170 ITAA 1997 28-175 ITAA 1997 28-180 ITAA 1997 28-185 ITAA 1997 Div 40 ITAA 1997 Div 230 ITAA 1997 Div 242 ITAA 1997 995-1(1) FBTAA 1986 Div 2 FBTAA 1986 7 FBTAA 1986 7(1) FBTAA 1986 7(2) FBTAA 1986 7(3) FBTAA 1986 7(7) FBTAA 1986 7(7)(b) FBTAA 1986 8(2) FBTAA 1986 9 FBTAA 1986 9(2)(a) FBTAA 1986 10 FBTAA 1986 10(3)(a) FBTAA 1986 20 FBTAA 1986 45 FBTAA 1986 53 FBTAA 1986 67 FBTAA 1986 136(1) FBTAA 1986 162 FBTAA 1986 162(1)(a) FBTAA 1986 162(1)(b) SISA 1993 TAA 1953
Other references: Fringe benefits tax - a guide for employers