In a decision handed down on Tue 9.12.2014, the Full Federal Court allowed the Commissioner’s appeal and found that the taxpayer was liable for FBT in relation to parking provided to employees at a Canberra airport. At the same time, it dismissed the taxpayer’s appeal in regards to FBT liabilities with regards to car parking provided to employees at other airport locations.
Previously in [2014] AATA 316 Re Qantas Airways Ltd and FCT, the AAT affirmed the Commissioner’s objection decision and held that the taxpayer was liable for FBT associated with parking provided to employees at all airports other than the Canberra airport. In relation to the Canberra airport, the AAT found that because there were no parking spaces available to members of the public and there was no commercial parking station within 1km of the premises, s 39A(1)(a)(ii) of the FBTAA was not satisfied, hence the taxpayer was not liable for FBT for parking provided to employees. Both the taxpayer and the Commissioner appealed the decision.
The Full Court noted that the word “public” in the FBTAA should be given its ordinary meaning and that the necessity that there be a commercial parking station within 1km of the employee’s premises is only a trigger for the liability to the tax but not the concept which is taxed. Having noted the above, it said it was incorrect for the Tribunal to seek to ascertain the meaning of the word “public” in the definition of “commercial parking station” by asking whether employees could, in fact, use the posited parking stations.
The Full Court found that in this case, whilst it was true that the operator of the parking station in Canberra imposed restrictions (ie only available to airline passengers and meeters and greeters of passengers), the car parks were nonetheless public car parks in the sense that in the ordinary course of the business, the car spaces were available to any member of the public on the contractual terms stipulated.
(FCT v Qantas Airways Ltd [2014] FCAFC 168, Full Federal Court, Perram, Robertson and Davies JJ, 9 December 2014.)
[LTN 238, 9/12/14]
s39A of the Fringe Benefits Tax Assessment Act 1986
Car parking benefits
(1) If the following conditions are satisfied in relation to a daylight period, or a combination of daylight periods, on a particular day:
(a) during the period or periods, a car is parked on one or more premises of a person (the provider ), where:
(i) the premises, or each of the premises, on which the car is parked are business premises, or associated premises, of the provider; and
(ii) a commercial parking station is located within a 1 km radius of the premises, or each of the premises, on which the car is parked; and
(iii) the lowest fee charged by the operator of any such commercial parking station in the ordinary course of business to members of the public for all-day parking on the first business day of the FBT year is more than the car parking threshold;
(b) the total duration of the period or periods exceeds 4 hours;
(c) any of the following applies:
(i) a car benefit relating to the car is provided on that day to an employee or an associate of an employee in respect of the employment of the employee;
(ii) the car is owned by, or leased to, an employee or an associate of an employee at any time during the period or periods;
(iii) the car is made available to an employee or an associate of an employee at any time during the period or periods by another person, where:
(A) the other person is neither the employer of the employee nor an associate of the employer of the employee; and
(B) the other person did not make the car available under an arrangement to which the employer of the employee, or an associate of the employer of the employee, is a party;
(d) the provision of parking facilities for the car during the period or periods is in respect of the employment of the employee;
(e) on that day, the employee has a primary place of employment;
(f) during the period or periods, the car is parked at, or in the vicinity of, that primary place of employment;
(g) on that day, the car is used in connection with travel by the employee between:
(i) the place of residence of the employee; and
(ii) that primary place of employment;
(h) the provision of parking facilities for the car during the period or periods is not taken, under the regulations, to be excluded from this section;
(i) the day is on or after 1 July 1993;
the provision of parking facilities for the car during the period or periods is taken to constitute a benefit provided by the provider to the employee or the associate of the employee in respect of the employment of the employee.
(2) For the purposes of this section:
(a) the carparking threshold for the FBT year beginning on 1 April 1995 is $5.00; and
(b) for later years the carparking threshold is the threshold for the previous FBT year as adjusted on the first business day of the later FBT year by a factor equivalent to the movement in the preceding twelve months in the All Groups Consumer Price Index number (being the weighted average of the 8 capital cities) published by the Australian Statistician.
(2A) However, the factor mentioned in paragraph (2)(b) is taken to be 1 if the movement described in that paragraph is down.
(3) Subject to subsection (4), if at any time, whether before or after the commencement of this Act, the Australian Statistician has published or publishes an index number in respect of a quarter in substitution for an index number previously published by the Australian Statistician in respect of that quarter, the publication of the later index number is to be disregarded for the purposes of this section.
(4) If at any time, whether before or after the commencement of this section, the Australian Statistician has changed or changes the reference base for the Consumer Price Index, then, for the purposes of the application of this section after the change, regard is to be had only to the index numbers published in terms of the new reference base.