Fringe Benefits Tax Assessment Act 1986

s 143 — Remote area holiday transport

(1) For the purposes of this Act: (a) the recipients expenditure in relation to an expense payment fringe benefit; (aa) the recipients property in relation to a property fringe benefit; or (b) the recipients benefit in relation to a residual fringe benefit; in relation to an employer, in relation to an employee, in relation to a year of tax shall be taken to be in respect of remote area holiday transport if: (c) in the case of an expense payment fringe benefit—the recipients expenditure is in respect of the provision of transport, or meals or accommodation in connection with transport; (ca) in the case of a property benefit—the recipients property consists of meals in connection with transport; (d) in the case of a residual fringe benefit—the recipients benefit consists of: (i) the provision of transport or accommodation in connection with transport; or (ii) the receipt of an allowance in respect of the cost of obtaining transport, or of obtaining meals or accommodation in connection with transport; (e) the transport, accommodation or meals is for a family member; (f) apart from temporary absences, the employee performs the duties of his or her employment at a place in a State or internal Territory but not at a location in, or adjacent to, an eligible urban area; (g) the transport is provided wholly or principally to enable the family member to have a holiday for a period of not less than 3 days; (h) if the transport is for the employee: (i) the transport is provided while the employee is on recreation leave, being recreation leave of not less than 3 working days; and (ii) at the completion of that recreation leave, the employee resumes the duties of that employment at the place referred to in paragraph (f); (j) either of the following subparagraphs applies: (i) the transport is between: (A) a place at or near the place referred to in paragraph (f); and (B) another place; (ii) the transport is for the spouse, or a child, of the employee, being a spouse or a child of the employee who does not live with the employee at or near the place referred to in paragraph (f), and the transport is between: (A) a place where the spouse or child, as the case may be, meets the employee; and (B) another place; (ja) if the transport is for the spouse, or a child, of the employee—the transport is not provided to enable the spouse or child to accompany the employee: (i) while the employee is undertaking travel in the course of performing the duties of his or her employment; and (ii) where the circumstances referred to in subsection 26 ‑ 30(2) of the Income Tax Assessment Act 1997 do not apply; and (k) either of the following conditions is satisfied: (i) the benefit is provided pursuant to the provisions of an industrial instrument relating to the employment of the employee; (ii) it is customary for employers in the industry in which the employee is employed to provide benefits of the same kind as the benefit provided to the recipient and to provide such benefits in similar circumstances to those that applied in relation to the provision of the benefit to the recipient. (2) For the purposes of this Act, where: (a) the recipients expenditure in relation to an expense payment fringe benefit; (b) the recipients property in relation to a property fringe benefit; or (c) the recipients benefit in relation to a residual fringe benefit; is in respect of remote area holiday transport, the fringe benefit shall be taken to be a remote area holiday transport fringe benefit. (3) Where: (a) one or more remote area holiday transport fringe benefits in relation to a particular employee in relation to a year of tax relate to a holiday for a particular family member; and (b) the transport to which that fringe benefit or those fringe benefits relates does not consist wholly of transport, by the most direct practicable route, between: (i) a place at or near the place referred to in paragraph (1)(f); and (ii) a place in a State or internal Territory, being: (A) a place at or near the place that was the employee’s usual place of residence immediately before the employee began employment at the place referred to in paragraph (1)(f); or (B) the capital city of the State or Territory in which the place referred to in paragraph (1)(f) is located; the benchmark travel amount in relation to that fringe benefit or those fringe benefits in relation to that holiday for that family member is: (c) if either of the following subparagraphs apply: (i) the employee was entitled to be provided with capital city holiday transport assistance pursuant to the provisions of an industrial instrument relating to the employment of the employee; (ii) there was a custom in the industry in which the employee was employed such that the employee could have been provided with capital city holiday transport assistance by the employer; the sum of: (iii) the return economy air fare in respect of the air service, or the total of the return economy air fares in respect of the air services, to which that capital city holiday transport assistance relates; and (iv) the expenses that could reasonably be expected to have been incurred in respect of the family member (whether by way of airport transfer, meals, accommodation, accident insurance, airport or departure tax, passenger movement charge, or any similar matter or thing) in accordance with the entitlement or custom to which that capital city holiday transport assistance relates and in connection with travelling on that return service or those return services; (d) if paragraph (c) does not apply but the following conditions are satisfied in respect of one or more return scheduled passenger air services: (A) the service was operated, at or about the time the holiday commenced, between eligible places; (B) the nature of the service is such that it would not be unreasonable for the family member to travel on the service; the lowest of the return economy air fares for those services; (e) if neither paragraph (c) nor (d) applies but the following conditions are satisfied in respect of one or more combinations of return scheduled passenger air services: (A) the combination was operated at or about the time the holiday commenced and would have enabled a person to travel between eligible places; (B) the nature of the combination, and of the services in the combination, is such that it would not be unreasonable for the family member to travel on the services; the total of the return economy air fares for the combination that has the lowest total of economy return air fares; or (f) in any other case—an amount equal to the lowest return fare, or combination of return fares, in respect of travel services in respect of which the following conditions are satisfied: (A) the service, or combination of services, was operated at or about the time the holiday commenced and would have enabled a person to travel between eligible places; (B) the nature of the service, or the nature of the combination and of the services included in the combination, is such that it would not be unreasonable for the family member to travel on the service or services. (4) For the purposes of the application of this section in relation to a benefit provided in respect of the employment of an employee: (a) a reference in this section to travel, or to the operation of a service or services, between eligible places is a reference to travel, or the operation of a service or services, between: (i) a place at or near the place referred to in paragraph (1)(f); and (ii) the capital city of the State or Territory in which the place referred to in paragraph (1)(f) is located; (b) a reference in this section to the provision of capital city holiday transport assistance to the employee is a reference to: (i) the making of payments in discharge or reimbursement of expenditure incurred by a person in respect of a return scheduled passenger air service or combination of return scheduled passenger air services operated by a carrier or carriers between eligible places; or (ii) the provision of transport on such a service or services; (c) Adelaide shall be treated as the capital city of the Northern Territory; and (d) Perth shall be treated as the capital city of the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands.

Amendment history: Amended by No 139 of 1987, effective 18 Dec 1987 | Amended by No 11 of 1989, effective 16 Mar 1989 | Amended by No 100 of 1991, effective s 3, 5, 7, 10, 12, 13, sch 1: 27 June 1991 (s 2(1)) s 4, 6, 8, 9, 11: 28 June 1991 (s 2(2)) | Amended by No 159 of 1994, effective 16 Dec 1994 | Amended by No 121 of 1997, effective s 4: 8 July 1997 (s 2(1)) Sch 4 (items 139, 140) and Sch 10 (items 16–23): 1 July 1997 (s 2(3))

s 143A — Relocation transport

For the purposes of this Act, where: (a) any of the following benefits is provided in, or in respect of, a year of tax to an employee, or to an associate of the employee, in respect of the employment of the employee: (i) a car benefit relating to a particular car where the application or availability of the car is in respect of the provision of transport; (ii) an expense payment benefit where the recipients expenditure is in respect of the provision of transport, or meals or accommodation in connection with transport; (iii) a property benefit where the recipients property consists of meals in connection with transport; (iv) a residual benefit where the recipients benefit consists of the provision of transport or accommodation in connection with transport; (b) the transport, meals or accommodation is for a family member; (c) the transport is required solely because: (i) the employee is required to live away from his or her usual place of residence in order to perform the duties of that employment; (ii) the employee, having lived away from his or her usual place of residence in order to perform the duties of that employment, is required to return to his or her usual place of residence: (A) in order to perform those duties; or (B) because the employee has ceased to perform those duties; or (iii) the employee is required to change his or her usual place of residence in order to perform the duties of that employment; (d) the transport is provided to enable a family member to: (i) if subparagraph (c)(i) applies—take up residence at or near the place where the employee performs the duties of that employment while living away from his or her usual place of residence; (ii) if subparagraph (c)(ii) applies—take up residence at the employee’s usual place of residence; or (iii) if subparagraph (c)(iii) applies—take up residence at the employee’s new usual place of residence; (e) if the transport is for the spouse, or a child, of the employee—the transport is not provided to enable the spouse or child to accompany the employee: (i) while the employee is undertaking travel in the course of performing the duties of that employment; and (ii) where the circumstances referred to in subsection 26 ‑ 30(2) of the Income Tax Assessment Act 1997 do not apply; and (f) if the transport is for the employee—the transport is not provided while the employee is undertaking travel in the course of performing the duties of that employment; and (g) if subparagraph (c)(iii) applies—the benefit is not provided under a non ‑ arm’s length arrangement; the benefit shall be taken to be in respect of relocation transport.

Amendment history: Inserted by No 139 of 1987, effective 18 Dec 1987 | Amended by No 121 of 1997, effective s 4: 8 July 1997 (s 2(1)) Sch 4 (items 139, 140) and Sch 10 (items 16–23): 1 July 1997 (s 2(3))

s 143B — Overseas employees

For the purposes of this Act, where: (a) an employee’s usual place of residence is in a particular country (in this section called the home country ); (b) apart from temporary absences, the employee performs the duties of his or her employment at: (i) a place outside the home country; or (ii) 2 or more places outside the home country; and (c) the employee is required to live outside the home country in order to perform the duties of his or her employment at the place or places referred to in paragraph (b); the following provisions have effect: (d) the period commencing when the employee commences to perform the duties of his or her employment at: (i) if subparagraph (b)(i) applies—the place referred to in that subparagraph; or (ii) if subparagraph (b)(ii) applies—the first place referred to in that subparagraph at which the employee performs those duties; and ending when the employee ceases, apart from any temporary absences, to perform those duties at: (iii) if subparagraph (b)(i) applies—the place referred to in that subparagraph; or (iv) if subparagraph (b)(ii) applies—the last place referred to in that subparagraph at which the employee performs those duties; shall be taken to be the overseas posting period of the employee; (e) the employee shall be taken to be an overseas employee during the overseas posting period; (f) the place, or each of the places, referred to in paragraph (b) shall be taken to be an overseas employment place.

Amendment history: Inserted by No 139 of 1987, effective 18 Dec 1987

s 143C — Overseas employment holiday transport

(1) For the purposes of this Act, where: (a) any of the following fringe benefits is provided in, or in respect of, a year of tax in respect of the employment of an employee of an employer: (i) an expense payment fringe benefit where the recipients expenditure is in respect of the provision of transport, or meals or accommodation in connection with transport; (ii) a property fringe benefit where the recipients property consists of meals in connection with transport; (iii) a residual fringe benefit where the recipients benefit consists of the provision of transport or accommodation in connection with transport; (b) the transport, accommodation or meals is for a family member; (c) the transport is provided wholly or principally to enable the family member to have a holiday for a period of not less than 3 days; (d) at the time (in this section called the outbound travel time ) immediately before the commencement of travel undertaken by the family member in connection with that holiday: (i) the employee was an overseas employee; and (ii) disregarding days of recreation leave, the employee’s overseas posting period was a period of not less than 28 days; (e) if the transport is for the employee: (i) the transport is provided while the employee is on recreation leave, being recreation leave of not less than 3 working days; and (ii) at the completion of that recreation leave, the employee resumes the duties of that employment at the place that was the employee’s overseas employment place at the outbound travel time; (f) either of the following subparagraphs applies: (i) the transport is between: (A) a place at or near the place that was the employee’s overseas employment place at the outbound travel time; and (B) another place; (ii) the transport is for the spouse, or a child, of the employee, being a spouse or a child of the employee who does not live with the employee at the place that was the employee’s overseas employment place at the outbound travel time, and the transport is between: (A) a place where the spouse or child, as the case may be, meets the employee; and (B) another place; (g) in the case of an expense payment fringe benefit—the recipients expenditure is not in respect of remote area holiday transport; (h) in the case of a property fringe benefit—the recipients property is not in respect of remote area holiday transport; (j) in the case of a residual fringe benefit—the recipients benefit is not in respect of remote area holiday transport; (k) if the transport is for the spouse, or a child, of the employee—the transport is not provided to enable the spouse or child to accompany the employee: (i) while the employee is undertaking travel in the course of performing the duties of his or her employment; and (ii) where the circumstances referred to in subsection 26 ‑ 30(2) of the Income Tax Assessment Act 1997 do not apply; and (m) either of the following conditions is satisfied: (i) the benefit is provided pursuant to the provisions of an industrial instrument relating to the employment of the employee; (ii) it is customary for employers in the industry in which the employee is employed to provide benefits of the same kind as the benefit provided to the recipient and to provide such benefits in similar circumstances to those that applied in relation to the provision of the benefit to the recipient; the following provisions have effect: (n) the fringe benefit shall be taken to be in respect of overseas employment holiday transport; (p) the benchmark travel amount in relation to the family member in relation to the fringe benefit is: (i) if either of the following sub ‑ subparagraphs apply: (A) the employee was entitled to be provided with home country holiday transport assistance pursuant to the provisions of an industrial instrument relating to the employment of the employee; (B) there was a custom in the industry in which the employee was employed such that the employee could have been provided with home country holiday transport assistance by the employer; the sum of: (C) the return economy air fare in respect of the air service, or the total of the return economy air fares in respect of the air services, to which that home country holiday transport assistance relates; and (D) the expenses that could reasonably be expected to have been incurred in respect of the family member (whether by way of airport transfer, meals, accommodation, accident insurance, airport or departure tax, passenger movement charge, or any similar matter or thing) in accordance with the entitlement or custom to which that home country holiday transport assistance relates and in connection with travelling on that return service or those return services; (ii) if subparagraph (i) does not apply but the following conditions are satisfied in respect of one or more return scheduled passenger air services: (A) the service was operated, at or about the outbound travel time, between eligible places; (B) the nature of the service is such that it would not be unreasonable for the family member to travel on the service; the lowest of the return economy air fares for those services; (iii) if neither subparagraph (i) nor (ii) applies but the following conditions are satisfied in respect of one or more combinations of return scheduled passenger air services: (A) the combination was operated at or about the outbound travel time and would have enabled a person to travel between eligible places; (B) the nature of the combination, and of the services in the combination, is such that it would not be unreasonable for the family member to travel on the services; the total of the economy return air fares for the combination that has the lowest total of economy return air fares; or (iv) in any other case—an amount equal to the lowest return fare, or combination of return fares, in respect of travel services in respect of which the following conditions are satisfied: (A) the service, or combination of services, was operated at or about the outbound travel time and would have enabled a person to travel between eligible places; (B) the nature of the service, or the nature of the combination and of the services included in the combination, is such that it would not be unreasonable for the family member to travel on the service or services; (q) if the transport for a particular family member consists wholly of transport: (i) in respect of a holiday taken by the family member; and (ii) by the most direct practicable route between: (A) a place at or near the place that was the employee’s overseas employment place at the outbound travel time; and (B) a place in the country in which the employee’s usual place of residence during the overseas posting period was located; the fringe benefit shall be taken to be a home country fringe benefit in relation to the holiday for the family member. (2) For the purposes of the application of this section in relation to a benefit provided in respect of the employment of an employee: (a) a reference in this section to travel, or to the operation of a service or services, between eligible places is a reference to travel, or the operation of a service or services, between: (i) a place at or near the place that was the employee’s overseas employment place at the outbound travel time; and (ii) a place at or near the usual place of residence of the employee during the overseas posting period; and (b) a reference in this section to the provision of home country holiday transport assistance to the employee is a reference to: (i) the making of payments in discharge or reimbursement of expenditure incurred by a person in respect of a return scheduled passenger air service, or combination of return scheduled passenger air services, operated by a carrier or carriers between eligible places; or (ii) the provision of transport on such a service or services.

Amendment history: Inserted by No 139 of 1987, effective 18 Dec 1987 | Amended by No 159 of 1994, effective 16 Dec 1994 | Amended by No 121 of 1997, effective s 4: 8 July 1997 (s 2(1)) Sch 4 (items 139, 140) and Sch 10 (items 16–23): 1 July 1997 (s 2(3))

s 143D — Employment interviews and selection tests

For the purposes of this Act, where: (a) any of the following benefits is provided in, or in respect of, a year of tax to an employee of an employer in respect of his or her employment: (i) a car benefit relating to a particular car where the application or availability of the car is in respect of the provision of transport; (ii) an expense payment benefit where the recipients expenditure is in respect of the provision of transport, or meals or accommodation in connection with transport; (iii) a property benefit where the recipients property consists of meals in connection with transport; (iv) a residual benefit where the recipients benefit consists of the provision of transport or accommodation in connection with transport; (b) the transport, meals or accommodation is for the employee; (c) the transport is required solely because the employee is required to attend an interview or selection test in connection with an application by the employee for: (i) employment; (ii) promotion; or (iii) job transfer; and (d) the benefit is not provided under a non ‑ arm’s length arrangement; the benefit shall be taken to be in respect of an employment interview or selection test.

s 143E — Work ‑ related medical examinations, work ‑ related medical screening, work ‑ related preventative health care, work ‑ related counselling, migrant language training

For the purposes of this Act, where: (a) any of the following benefits is provided in, or in respect of, a year of tax in respect of the employment of an employee: (i) a car benefit relating to a particular car where the application or availability of the car is in respect of the provision of transport; (ii) an expense payment benefit where the recipients expenditure is in respect of the provision of transport, or meals or accommodation in connection with transport; (iii) a property benefit where the recipients property consists of meals in connection with transport; (iv) a residual benefit where the recipients benefit consists of the provision of transport or accommodation in connection with transport; (b) the transport is required solely because: (i) the employee attends: (A) a work ‑ related medical examination of the employee; (B) work ‑ related medical screening of the employee; (C) work ‑ related preventative health care of the employee; (D) work ‑ related counselling of the employee; or (E) migrant language training of the employee; or (ii) an associate of the employee attends: (A) work ‑ related counselling of the associate; or (B) migrant language training of the associate; (c) if subparagraph (b)(i) applies—the transport, meals or accommodation is for the employee; and (d) if subparagraph (b)(ii) applies—the transport, meals or accommodation is for the associate of the employee; the benefit shall be taken to be associated with: (e) a work ‑ related medical examination of the employee; (f) work ‑ related medical screening of the employee; (g) work ‑ related preventative health care of the employee; (h) work ‑ related counselling of the employee or of the associate of the employee; or (j) migrant language training of the employee or of the associate of the employee; as the case requires.

s 144 — Deemed payment

For the purposes of Part III, any conduct by a person that effects or results in a discharge or extinction of an obligation of another person to pay an amount to a third person shall be taken to constitute the payment of the amount by the first ‑ mentioned person.

s 145 — Consideration not in cash

(1) For the purposes of this Act, where, upon any transaction, any consideration is given by way of the provision of property (other than money), the money value of that consideration shall be deemed to have been paid or given. (2) Subsection (1) does not apply for the purpose of determining whether an act or thing constitutes the provision of a benefit to which a particular provision of this Act applies.

s 146 — Amounts to be expressed in Australian currency

For the purposes of this Act, all amounts and values shall be expressed in terms of Australian currency.

s 147 — Obligation to pay or repay an amount

For the purposes of this Act, a person shall be deemed to be under an obligation to pay or repay an amount notwithstanding that the amount is not due for payment or repayment.

s 148 — Provision of benefits

(1) A reference in this Act to the provision of a benefit to a person in respect of the employment of an employee is a reference to the provision of such a benefit: (a) whether or not the benefit is also provided in respect of, by reason of, by virtue of, or for or in relation directly or indirectly to, any other matter or thing; (b) whether the employment will occur, is occurring, or has occurred; (c) whether or not the benefit is surplus to the needs or wants of the recipient; (d) whether or not the benefit is also provided to another person; (e) whether or not the benefit is, to any extent, offset by any inconvenience or disadvantage; (f) whether or not the benefit is provided or used, or required to be provided or used, in connection with that employment; (g) whether or not the provision of the benefit is, or is in the nature of, income; and (h) whether or not the benefit is provided as a reward for services rendered, or to be rendered, by the employee. (2) Where, in respect of the employment of an employee, a benefit is provided by a person (in this subsection referred to as the provider ) to a person other than: (a) the employee; or (b) a person who, but for this subsection, is an associate of the employee; under an arrangement between: (c) the provider, the employer or an associate of the employer; and (d) the employee or a person who, but for this subsection, is an associate of the employee; the recipient of the benefit shall be deemed to be an associate of the employee for the purposes of the application of this Act in relation to the provision of that benefit. (2A) Subsection (2) does not apply if the employee would be entitled to a deduction under Division 30 (Gifts or contributions) of the Income Tax Assessment Act 1997 if the employee, rather than the provider, provided the benefit to the recipient. (3) Where: (a) but for the prohibition on the doing of an act or thing, the doing of the act or thing would result in the provision of a benefit in respect of the employment of a person by another person (in this subsection referred to as the provider ); and (b) the prohibition is not consistently enforced; the provider shall be deemed, for the purposes of this Act, to have provided that benefit in respect of that employment. (4) For the purposes of this Act, a benefit that is received or obtained by an employee, or by an associate of an employee, in respect of the employment of the employee shall be deemed to have been provided by the provider in respect of that employment. (5) A provision of this Act that deems a benefit to have been provided in particular circumstances shall not, by implication, limit the meaning of the expression provide when used in relation to the provision of a benefit in other circumstances.

Amendment history: Amended by No 88 of 2009, effective Sch 5 (items 19, 20, 288–305): (s 2(1) items 7, 10)

s 149 — Provision of benefit during a period

(1) For the purposes of this Act, a benefit shall be taken to be provided during a period if, and only if, the benefit: (a) is provided, or subsists, during a period of more than 1 day; and (b) is not deemed by a provision of this Act to be provided at a particular time or on a particular day. (2) For the purposes of subsection (1), but without limiting the generality of that subsection, a benefit constituted by the subsistence of a lease or licence in respect of property, or a benefit in respect of a loan, shall be taken to be provided during the period when the lease or licence subsists or while a person is under an obligation to repay the whole or any part of the loan, as the case may be.

s 149A — What is a GST ‑ creditable benefit ?

(1) A benefit provided in respect of the employment of an employee is a GST ‑ creditable benefit if either of the following is or was entitled to an input tax credit under Division 111 of the A New Tax System (Goods and Services Tax) Act 1999 because of the provision of the benefit: (a) the person who provided the benefit; (b) a person who is or was a member of the same GST group (as defined in that Act) as the person who provided the benefit. (2) A benefit provided in respect of the employment of an employee is also a GST ‑ creditable benefit if: (a) the benefit consists of: (i) a thing (as defined in the A New Tax System (Goods and Services Tax) Act 1999 ); or (ii) an interest in such a thing; or (iii) a right over such a thing; or (iv) a personal right to call for or be granted any interest in or right over such a thing; or (v) a licence to use such a thing; or (vi) any other contractual right exercisable over or in relation to such a thing; and (b) the thing was acquired (within the meaning of that Act) or imported (within the meaning of that Act) and either of the following is or was entitled to an input tax credit under that Act because of the acquisition or importation: (i) the person who provided the benefit; (ii) a person who is or was a member of the same GST group (as defined in that Act) as the person who provided the benefit.

Amendment history: Inserted by No 52 of 2000, effective Sch 1: 30 May 2000 (s 2)

s 150 — Credit cards

For the purposes of this Act, where, in respect of the employment of an employee of an employer, the employee or an associate of the employee uses a credit card issued by a third person to, or to an associate of, the employer to obtain the provision of a benefit on credit from a fourth person, the following provisions have effect: (a) the fourth person shall be taken to have provided the benefit, in respect of that employment, under an arrangement between: (i) the employer or the associate of the employer, as the case requires; and (ii) the fourth person; (b) where the employer or the associate of the employer, as the case may be, incurred expenditure to the third person under an arm’s length transaction in respect of the provision of the benefit—the employer or the associate of the employer, as the case requires, shall be taken to have incurred that expenditure to the fourth person under an arm’s length transaction.

s 151 — Employee performing services for person other than employer

Where the employer of an employee contracts with another person (in this section referred to as the purchaser ) for the employee to perform services for the purchaser, the following provisions have effect for the purposes of the application of section 54 and the definition of board meal in subsection 136(1) in relation to the provision of a meal, or food or drink, to the employee in respect of, by reason of, by virtue of, or for or in relation directly or indirectly to, the performance of those services: (a) premises of the purchaser shall be taken to be eligible premises of the employer; (b) a meal, or food or drink, provided by the purchaser to the employee shall be taken to have been provided by the employer.

s 152A — Recurring fringe benefit declaration

Recipient may make recurring fringe benefit declaration (1) If a person is provided with a benefit (the declaration benefit ), the person may make a recurring fringe benefit declaration in relation to the declaration benefit. Expense payment fringe benefits covered by declaration (2) If the recurring fringe benefit declaration covers another benefit (the later benefit ) that is an expense payment fringe benefit: (a) the recurring fringe benefit declaration is taken to have been made under paragraph 24(1)(e) in respect of the recipients expenditure for that benefit; and (b) the gross deduction in paragraph 24(1)(b) in relation to the later benefit is taken to be the amount worked out using the formula: where: Gross expenditure (later benefit) is the gross expenditure mentioned in paragraph 24(1)(b) in relation to the later benefit. Deductible proportion of declaration benefit is the deductible proportion of the declaration benefit as worked out under subsection (9). Note: The gross deduction is used as component GD in the formula in paragraph 24(1)(ba). Property fringe benefits covered by declaration (3) If the recurring fringe benefit declaration covers another benefit (the later benefit ) that is a property fringe benefit: (a) the recurring fringe benefit declaration is taken to have been made under paragraph 44(1)(c) in respect of the recipients property for that benefit; and (b) the gross deduction in paragraph 44(1)(b) in relation to the later benefit is taken to be the amount worked out using the formula: where: Gross expenditure (later benefit) is the gross expenditure mentioned in paragraph 44(1)(b) in relation to the later benefit. Deductible proportion of declaration benefit is the deductible proportion of the declaration as worked out under subsection (9). Note: The gross deduction is used as component GD in the formula in paragraph 44(1)(ba). Residual fringe benefits covered by declaration (4) If the recurring fringe benefit declaration covers another benefit (the later benefit ) that is a residual fringe benefit: (a) the recurring fringe benefit declaration is taken to have been made under paragraph 52(1)(c) in respect of the recipients benefit for that benefit; and (b) the gross deduction in paragraph 52(1)(b) in relation to the later benefit is taken to be the amount worked out using the formula: where: Gross expenditure (later benefit) is the gross expenditure mentioned in paragraph 52(1)(b) in relation to the later benefit. Deductible proportion of declaration benefit is the deductible proportion of the declaration benefit as worked out under subsection (9). Note: The gross deduction is used as component GD in the formula in paragraph 52(1)(ba). (5) The declaration must be in a form approved in writing by the Commissioner and be made, and given to the employer, by the declaration date for the employer for the FBT year in which the declaration benefit is provided. What benefit declaration covers (6) The declaration covers all benefits that are identical to the declaration benefit received by the person before the earlier of: (a) the time when the person revokes the declaration; and (b) the end of 5 years starting when the declaration is made. (7) The declaration does not cover a benefit if the deductible proportion of the benefit is more than 10 percentage points less than the deductible proportion of the declaration benefit. (8) If a taxpayer makes a declaration for a benefit that is an identical benefit to a benefit covered by an earlier declaration, the earlier declaration is revoked. Meaning of deductible proportion (9) The deductible proportion of a benefit is the percentage worked out using the formula: where: gross deduction means the gross deduction mentioned in whichever of paragraph 24(1)(b), 44(1)(b) or 52(1)(b) applied to the benefit. gross expenditure means the gross expenditure mentioned in whichever of paragraph 24(1)(b), 44(1)(b) or 52(1)(b) applied to the benefit. Meaning of identical (10) A benefit is identical to another benefit if the benefits are the same in all respects except for any differences: (a) that are minimal or insignificant; or (b) that relate to the value of the benefits; or (c) in the deductible proportion of the benefits.

Amendment history: Inserted by No 145 of 1995, effective 12 Dec 1995 | Amended by No 145 of 2008, effective Sch 4 (items 1–75): 9 Dec 2008 (s 2)

s 152B — Employer may elect 50/50 split method for entertainment facility leasing costs

(1) If: (a) the taxable value of one or more fringe benefits of an employer for an FBT year is attributable, in whole or in part, to entertainment facility leasing expenses incurred by the employer in the FBT year; and (b) the employer elects that this section applies for the FBT year; then: (c) the aggregate fringe benefit amount for the employer for the FBT year is to be reduced by so much of the total taxable value of all fringe benefits as is attributable to entertainment facility leasing expenses; and (d) the aggregate fringe benefit amount for the employer for the FBT year is to then be increased by 50% of the total of entertainment facility leasing expenses incurred by the employer in the FBT year (including expenses not taken into account under paragraph (a)). Note: The effect of this is that the employer’s aggregate fringe benefits amount (see section 5C) for the FBT year will include 50% of the entertainment facility leasing expenses incurred by the employer for the FBT year. (2) This section does not apply to a fringe benefit provided under a salary packaging arrangement.

Amendment history: Inserted by No 145 of 1995, effective 12 Dec 1995 | Amended by No 17 of 1999, effective Schedule 1 (items 1–16): 19 Apr 1999 (s 2(1)) | Amended by No 162 of 2015, effective Sch 1 (items 4–20) and Sch 3: 30 Nov 2015 (s 2(1) item 2)

s 153 — Residual benefits to include provision of property in certain circumstances

For the purposes of this Act, where: (a) a person carries on a business that consists of, or includes, the entering into of contracts for the provision of property together with the provision of residual benefits; (b) the person provides property (other than food or drink) and residual benefits to another person; (c) but for this section, the provision would constitute a property benefit and a residual benefit; and (d) the provision is made in the same, or substantially the same, circumstances as a provision of the kind mentioned in paragraph (a); the provision of the residual benefit shall be taken to include the provision of the property and the provision of the property shall not be taken to constitute a property benefit.

Amendment history: Amended by No 139 of 1987, effective 18 Dec 1987

s 154 — Creation of property

For the purposes of this Act, where a person does anything that results in the creation of property in another person, the first ‑ mentioned person shall be deemed to have provided that property to the other person at the time when the property comes into existence.

s 155 — Use of property before title passes

(1) Subject to subsection (2), where, under a transaction, the use of property is obtained by a person for a period at the end of which the title to the property will or may pass to the person, the property shall be deemed, for the purposes of this Act, to have been provided to the person at the time when the use of the property was obtained by the person. (2) Property shall not be taken to have been provided to a person by virtue of subsection (1) if the period for which the person has the use of the property terminates without the title to the property passing to the person, and nothing in section 74 prevents the amendment of an assessment for the purpose of giving effect to this subsection.

s 156 — Supply of electricity or gas through reticulation system

For the purposes of this Act, the supply of electricity or gas through a reticulation system shall be deemed not to constitute the provision of property.

s 157 — Christmas Island and Cocos (Keeling) Islands

(1) A reference in this Act to an internal Territory includes a reference to the Territory of Christmas Island and to the Territory of Cocos (Keeling) Islands. (2) For the purposes of this Act, a location in the Territory of Christmas Island or the Territory of Cocos (Keeling) Islands shall be taken not to be situated in, or adjacent to, an eligible urban area.

Amendment history: Amended by No 100 of 1991, effective s 3, 5, 7, 10, 12, 13, sch 1: 27 June 1991 (s 2(1)) s 4, 6, 8, 9, 11: 28 June 1991 (s 2(2))

s 158 — Related companies

(1) For the purposes of this Act, a company shall be taken to be related to another company if: (a) one of the companies is a subsidiary of the other company; or (b) each of the companies is a subsidiary of the same company. (2) For the purposes of this section, a company (in this subsection referred to as the subsidiary company ) shall be taken to be the subsidiary of another company (in this subsection referred to as the holding company ) if: (a) all the shares in the subsidiary company are beneficially owned by: (i) the holding company; (ii) a company that is, or 2 or more companies each of which is, a subsidiary of the holding company; or (iii) the holding company and a company that is, or 2 or more companies each of which is, a subsidiary of the holding company; and (b) there is no agreement in force by virtue of which any person is in a position to affect rights of the holding company or of a subsidiary of the holding company in relation to the subsidiary company. (3) For the purposes of this section, where a company is a subsidiary of another company (including a company that is such a subsidiary by virtue of another application or other applications of this subsection), every company that is a subsidiary of the first ‑ mentioned company shall be taken to be a subsidiary of that other company. (4) For the purposes of subsection (2), a person shall be taken to be in a position to affect any rights of a company in relation to another company if that person has a right, power or option (whether by virtue of any provision in the constituent document of either of those companies or by virtue of any agreement or instrument or otherwise) to acquire those rights or do an act or thing that would prevent the first ‑ mentioned company from exercising those rights for its own benefit or receiving any benefits accruing by reason of those rights.

s 159 — Associates and relatives

(2) For the purposes of this Act, but without limiting the generality of the expression associate : (a) a company that is related to another company shall be deemed to be an associate of that other company; (b) the Commonwealth shall be deemed to be an associate of each authority of the Commonwealth; (c) an authority of the Commonwealth shall be deemed an associate of each other authority of the Commonwealth; (d) a State shall be deemed to be an associate of each authority of the State; (e) an authority of a State shall be deemed to be an associate of each other authority of the State; (f) a Territory shall be deemed to be an associate of each authority of the Territory; and (g) an authority of a Territory shall be deemed to be an associate of each other authority of the Territory. (3) Where a person is an associate of another person by virtue of paragraph (2)(b), (c), (d), (e), (f) or (g), Part III has effect as if those persons were companies and were related to each other. (4) For the purposes of this Act, section 318 of the Income Tax Assessment Act 1936 has effect as if “a partnership in which the primary entity is a partner” were omitted from paragraphs (1)(b) and (2)(a) of that section and “a partnership in which the primary entity is or was a partner (whether or not the partnership still exists)” were substituted.

Amendment history: Amended by No 139 of 1987, effective 18 Dec 1987 | Amended by No 101 of 2006, effective Sch 1 (items 1, 4), Sch 2 (items 81–112, 1017, 1020, 1021), Sch 5 (items 119–123) and Sch 6 (items 1, 5–11): 14 Sept 2006 (s 2(1) items 2, 4)

s 160 — Continuity of employment where business disposed of etc.

(1) Where: (a) a person (in this subsection referred to as the former employer ) disposes of the whole or a part of a business or undertaking to another person (in this subsection referred to as the new employer ); and (b) an arrangement relating to the disposal provides for the new employer or an associate of the new employer to provide or to continue to provide, or to arrange for the provision or continued provision of, benefits in respect of the employment of a person (in this subsection referred to as the former employee ) by the former employer; the following provisions have effect: (c) this Act applies, in relation to any benefit so provided or continued to be provided, as if the employment of the former employee by the former employer were, instead, employment by the new employer; (d) where the arrangement provides for the new employer or an associate of the new employer to assume, or arrange for the assumption of, the rights of: (i) a lender under a loan; (ii) a lessor under a lease; or (iii) a licensor under a licence; being a loan, lease or licence, as the case may be, granted in respect of the employment of the former employee by the former employer, this Act has effect, after the assumption of those rights, as if the employment of the former employee by the former employer were, instead, employment by the new employer and the loan, lease or licence had been granted in respect of that employment by the person who assumed the rights. (2) Where, for any reason, including: (a) the formation or dissolution of a partnership; or (b) a variation in the constitution of a partnership, or in the interests of the partners; a change has occurred in the ownership of, or in the interests of persons in, property constituting the whole or a part of the assets of a business and the person, or one or more of the persons, who owned the property before the change has or have an interest in the property after the change, this Act has effect as if the persons who owned the property before the change had, on the day on which the change occurred: (c) disposed of the whole of that business to the person, or all of the persons, by whom the property is owned after the change; and (d) disposed of the whole of the property to the person, or all of the persons, by whom the property is owned after the change for an amount equal to the notional value of the property. (3) For the purposes of this Act, the trustee or trustees from time to time of a trust, being an employer or employers, shall be deemed to be one employer.

s 161 — Business journeys in car

(1) For the purposes of this Act, where: (a) during a particular period during a day, 2 or more journeys are undertaken in a car; and (b) each of the journeys in the car during that period is a business journey; the journeys referred to in paragraph (b) shall be deemed to constitute a single journey.

s 162 — Holding of car

(1) In this Act, unless the contrary intention appears, a reference to a car held by a person is a reference to: (a) a car owned by the person; (b) a car leased to the person; or (c) a car otherwise made available to the person by another person. (2) For the purposes of the application of section 10 in relation to car fringe benefits in relation to an employer in relation to a particular car, the car shall be taken to be held by a particular person if, and only if, the car is held by the person for use in providing those fringe benefits (whether or not the car was used for any other purpose while it was so held). (3) For the purposes of the application of sections 19, 24, 44 and 52 in relation to a loan fringe benefit, expense payment fringe benefit, property fringe benefit or residual fringe benefit, as the case requires, a car shall be taken to be held by the recipient of the fringe benefit if, and only if, the car is owned or leased by the recipient for use in the course of producing assessable income of the recipient (whether or not the car was used for any other purpose while it was so owned or leased). (4) A reference in this Act to a period during which a car was held by a person is a reference to a period during which the car was continuously held by the person.

s 162B — When car used for the purpose of producing assessable income

For the purposes of the application of sections 19, 24, 44 and 52 in relation to a loan fringe benefit, expense payment fringe benefit, property fringe benefit or residual fringe benefit, as the case requires, the question whether a car is used by a person for the purposes of producing assessable income shall be determined in the same manner as the question whether property is used by a taxpayer for the purpose of producing assessable income is determined under the Income Tax Assessment Act 1997 .

Amendment history: Inserted by No 139 of 1987, effective 18 Dec 1987 | Amended by No 58 of 2006, effective Sch 7 (items 32–34, 239, 240): 22 June 2006 (s 2(6), (24))

s 162C — Holding period of car

Unless the contrary intention appears, a reference in this Act to a period in a year of tax during which a person held a car is a reference to the period that: (a) commences on whichever of the following times is applicable: (i) if the person held the car at the time of commencement of the year of tax—that time; (ii) in any other case—the time in the year of tax when the person commenced to hold the car; and (b) ends at whichever of the following times is applicable: (i) if the person continued to hold the car until the time of the end of the year of tax—that time; (ii) in any other case—the time in the year of tax when the person ceased to hold the car.

Amendment history: Inserted by No 139 of 1987, effective 18 Dec 1987

s 162F — Reasonable estimate of number of business kilometres

For the purposes of this Act, the number of kilometres that represents a reasonable estimate of the number of business kilometres applicable to a car held by a person during a period in a year of tax shall be determined having regard to all relevant matters including, but without limiting the generality of the foregoing: (a) any log book records, odometer records or other records maintained by or on behalf of the person; and (b) any variations in the pattern of use of the car.

Amendment history: Inserted by No 139 of 1987, effective 18 Dec 1987 | Amended by No 145 of 1995, effective 12 Dec 1995

s 162G — Log book year of tax

(1) For the purposes of the application of section 10 in relation to a car fringe benefit in relation to an employer in relation to a particular car while it was held by a particular person (in this subsection called the provider ) during a particular period (in this subsection called the holding period ) in a year of tax (in this subsection called the current year of tax ), the current year of tax is a log book year of tax of the employer in relation to the car if, and only if: (a) none of the previous 4 years was a log book year of tax of the employer in relation to the car; Note: This paragraph will apply if it is the first year that the employer uses the cost basis method. (b) the employer elects that the current year of tax be treated as a log book year of tax of the employer in relation to the car; or (h) the Commissioner causes a notice in writing to be served on the employer before the commencement of the current year of tax requiring the employer to treat the current year of tax as a log book year of tax of the employer in relation to the car. (2) For the purposes of the application of sections 19, 24, 44 and 52 in relation to a loan fringe benefit, expense payment fringe benefit, property fringe benefit or residual fringe benefit, as the case requires, in relation to an employer in relation to a particular car held by the recipient of the fringe benefit during a particular period (in this subsection called the holding period ) in a year of tax (in this subsection called the current year of tax ), the current year of tax is a log book year of tax of the recipient in relation to the car if, and only if: (a) none of the previous 4 years was a log book year of tax of the employer in relation to the car; (b) the employer elects that the current year of tax be treated as a log book year of tax of the recipient in relation to the car; or (h) the Commissioner causes a notice in writing to be served on the employer before the commencement of the current year of tax requiring the employer to treat the current year of tax as a log book year of tax of the recipient in relation to the car. (3) An election under this section is to be in writing.

s 162H — Applicable log book period

(1) For the purposes of the application of section 10 in relation to a car fringe benefit in relation to an employer in relation to a car while it was held by a particular person during a particular period (in this subsection called the holding period ) starting or ending in a year of tax, a reference to the applicable log book period is a reference to: (a) if the holding period is a period of less than 12 weeks—the holding period; or (b) in any other case—a continuous period of not less than 12 weeks that begins and ends during the holding period. (2) For the purposes of the application of sections 19, 24, 44 and 52 in relation to a loan fringe benefit, expense payment fringe benefit, property fringe benefit or residual fringe benefit, as the case requires, in relation to an employer in relation to a car held by the recipient of the fringe benefit during a particular period (in this subsection called the holding period ) starting or ending in a year of tax, a reference to the applicable log book period is a reference to: (a) if the holding period is a period of less than 12 weeks—the holding period; or (b) in any other case—a continuous period of not less than 12 weeks that begins and ends during the holding period. (3) The applicable log book period must be specified in the log book records for the period at, or as soon as possible after, the end of the period.

s 162K — Replacement cars—car fringe benefits

(1) This section has effect for the purposes of the application of section 10 in relation to car fringe benefits in relation to an employer in relation to a year of tax (in this section called the current year of tax ) or a subsequent year of tax. (2) Where the employer nominates a particular car (in this section called the replacement car ) as having replaced another car (in this section called the original car ) with effect from a specified date in the current year of tax: (a) the original car shall be treated, with effect from that date, as a different car; and (b) the replacement car shall be treated, with effect from that date, as the same car as the original car. (2A) A nomination shall be made in writing on or before the declaration date for the current year of tax. (3) A nomination shall specify the make, model and registration number (if any) of the original car and of the replacement car. (4) This section does not apply for the purposes of the application of subsection 10(5) or section 11 or 12.

s 162L — Replacement cars—otherwise deductible provisions

(1) This section has effect for the purposes of the application of sections 19, 24, 44 and 52 in relation to a loan fringe benefit, expense payment fringe benefit, property fringe benefit or residual fringe benefit, in relation to an employer in relation to a year of tax (in this section called the current year of tax ) or a subsequent year of tax. (2) Where the employer nominates a particular car (in this section called the replacement car ) as having replaced another car (in this section called the original car ) with effect from a specified date in the current year of tax: (a) the original car shall be treated, with effect from that date, as a different car; and (b) the replacement car shall be treated, with effect from that date, as the same car as the original car. (2A) A nomination shall be made in writing on or before the declaration date for the current year of tax. (3) A nomination shall specify the make, model and registration number (if any) of the original car and of the replacement car.

s 162N — Registration of motor vehicle

For the purposes of this Act, a motor vehicle shall be taken to be registered in a particular place if it may be driven on a public road in that place without contravening the law in force in that place.

Amendment history: Inserted by No 139 of 1987, effective 18 Dec 1987

s 164 — Residence

(1) For the purposes of this Act, a person shall be taken to have been a non ‑ resident at a particular time if the person was not a resident of Australia at that time. (2) For the purposes of this Act, a person shall be taken to have been a resident of Australia at a particular time if: (a) in the case of a natural person: (i) the person resided in Australia at that time; or (ii) except in the case where the Commissioner is satisfied that that person’s permanent place of residence at that time was outside Australia—the person was domiciled in Australia at that time; (b) in the case of an incorporated company: (i) the company was incorporated in Australia at that time; or (ii) at that time the company carried on business in Australia and: (A) had its central management and control in Australia; or (B) had its voting power controlled by shareholders who were residents of Australia; or (c) in the case of a partnership or an unincorporated company—any member of the partnership or company was a resident of Australia at that time by virtue of paragraph (a) or (b).

s 165 — Partnerships

(1) Subject to this section, this Act applies to a partnership as if the partnership were a person. (2) Where, but for this subsection, an obligation would be imposed on a partnership by virtue of the operation of subsection (1), the obligation is imposed on each partner, but may be discharged by any of the partners. (3) Where, by virtue of the operation of subsection (1), an amount is payable under this Act by a partnership, the partners are jointly and severally liable to pay that amount. (4) Where, by virtue of the operation of subsection (1), an offence against this Act is deemed to have been committed by a partnership, that offence shall be deemed to have been committed by each of the partners. (5) In a prosecution of a person for an offence by virtue of this section, it is a defence if the person proves that the person: (a) did not aid, abet, counsel or procure the act or omission by virtue of which the offence is deemed to have been committed; and (b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission by virtue of which the offence is deemed to have been committed. (6) A reference in this section to this Act includes a reference to Part III of the Taxation Administration Act 1953 to the extent to which that Part of that Act relates to this Act.

s 166 — Unincorporated companies

(1) Subject to this section, this Act applies to an unincorporated company as if the company were a person. (2) Where, but for this subsection, an obligation would be imposed on an unincorporated company by virtue of the operation of subsection (1), the obligation is imposed on each member of the committee of management of the company, but may be discharged by any of those members. (3) Where, by virtue of the operation of subsection (1), an offence against this Act is deemed to have been committed by an unincorporated company, that offence shall be deemed to have been committed by each member of the committee of management of the association. (4) In a prosecution of a person for an offence by virtue of this section, it is a defence if the person proves that the person: (a) did not aid, abet, counsel or procure the act or omission by virtue of which the offence is deemed to have been committed; and (b) was not in any way, by act or omission, directly or indirectly, knowingly concerned in, or party to, the act or omission by virtue of which the offence is deemed to have been committed. (5) A reference in this section to this Act includes a reference to Part III of the Taxation Administration Act 1953 to the extent to which that Part of that Act relates to this Act.

s 167 — Offences by government bodies

Notwithstanding anything in this Act or any other Act, a government body shall not be taken to have committed an offence against this Act.

Amendment history: Amended by No 4 of 2016, effective Sch 4 (item 391): 10 Mar 2016 (s 2(1) item 6)