Uber v Taxis

Background

Since the Federal Court confirmed in 2017 that an Uber driver was supplying taxi travel for the purposes of the GST Act when he was operating as an uberX Partner, there has been a cloud of doubt hanging over whether employers are entitled to the FBT exemptions available to taxis when they use an Uber and similar ride-sourcing services. In recent guidance on the operation of the FBT exemption for taxi travel, the ATO has clarified its view that the FBT exemption does not extend to ride-sourcing services provided in a vehicle that is not licensed to operate as a taxi.

GST treatment

Federal Court case

The case of Uber B.V. v FCT [2017] FCA 110 (‘the Uber decision’) in the Federal Court turned on whether carrying on the enterprise of providing uberX services to passengers constituted a supply of ‘taxi travel’ within the meaning of s. 144-5(1) of the GST Act which requires that an entity is:

required to be registered if, in *carrying on your enterprise, you supply *taxi travel.

Taxi travel is defined in s. 195 of the GST Act to mean:

travel that involves transporting passengers, by taxi or limousine, for fares.

Taxpayer’s contentions

The taxpayer contended that the provision of uberX ride-sharing services was not travel that involves transporting passengers by taxi because:

• the statutory context indicated that the provisions were intended to create an exception for a specific industry — i.e. taxi operators;
• the word taxi cannot simply mean any vehicle available for hire, at a fare, by members of the public; and
• a taxi is identified by particular features as regulated by the States and Territories, for example, broadly taxis:
  • contain physical markings which identify them as such, e.g. signs and roof lights;
  • generally cannot refuse a hire;
  • are permitted to use taxi ranks; and
  • contain a taximeter which displays the progressive fare.

Commissioner’s contentions

The Commissioner contended that the definition of taxi travel should be construed as a whole and connotes:

the transportation, by a person driving a private vehicle, of a passenger from one point to another at the passenger’s discretion and for a fare, irrespective of whether the fare is calculated by reference to a taximeter.

Decision

On 17 February 2017, the Federal Court dismissed the taxpayer’s application and made a declaratory order to the effect that the uberX service supplied by the Uber driver constituted ‘taxi travel’ within the meaning of s. 144-5(1) of the GST Act.

GST implications

All ride-sourcing (sometimes referred to as ride-sharing) arrangements — encompassing uberX, uberXL, UberSELECT, UberBLACK, Hi Oscar, Shebah, GoCatch and similar services — constitute ‘taxi travel’ for GST purposes. All these services are subject to GST. Accordingly, ride-sourcing drivers must have an ABN and be registered for GST. The usual turnover threshold of $75,000 does not apply in the case of ‘taxi travel’.

The ATO has reminded those providing ride-sourcing services that they will need:

• an ABN;
• to register for GST from the day they start, regardless of how much they earn;
• to pay GST on the full fare (see below);
• to lodge business activity statements (BAS) on a monthly or quarterly basis (annual lodgment is not available); and
• to know how to issue a tax invoice (tax invoices will need to be provide for fares over $82.50 if asked by the passenger).

Calculate GST on the full fare

GST must be calculated on the full fare, not on the net amount received after deducting any fees or commissions.

Income tax implications

There are also income tax issues for those earning ride-sourcing income. They will need to:

• include income earned in their income tax return;
• only claim deductions related to transporting passengers for a fare, including apportioning car expenses limited to the time actually providing a ride-sourcing service (driving around looking for a passenger does not count towards the taxable use of the vehicle); and
• keep accurate records of all income and expenses, in particular:
  • statements showing income from ride-sourcing;
  • receipts for any claimable expenses; and
  • a car logbook to track their trips (and claim only the business portion) — a GPS or odometer will need to be used to calculate the distance travelled while driving passengers to their destination to accurately record their car trips.

Note

The ATO is conducting a data matching program in relation to ride-sourcing for the 2015–16 to the 2018–19 income years. The ATO is acquiring the following information from ride-sourcing facilitators:

• • the identification of drivers and their vehicle registration details; and
  • details of the payments made to the drivers.

FBT treatment

Legislative references

FBT exemption for taxi travel

Section 58Z of the FBT Assessment Act 1986 (FBTAA) provides employers with an exemption for taxi travel in certain circumstances. It provides that:

1. Any benefit arising from taxi travel by an employee is an exempt benefit if the travel is a single taxi trip beginning or ending at the employee’s place of work.
2. Any benefit arising from taxi travel by an employee is an exempt benefit if the travel:
   1. is as a result of sickness of, or injury to, the employee; and
   2. is the whole or a part of the journey directly between any of the following:
      1. the employee’s place of work; or
      2. the employee’s place of residence; or
      3. any other place that it is necessary, or appropriate, for the employee to go as a result of the sickness or injury.

Taxi is defined in s. 136 of the FBTAA to mean:

a motor vehicle that is licensed to operate as a taxi.

Other references to taxis in the FBTAA

Other references to taxis in the FBTAA include:

• a taxi or short-term hire-car is not treated as a car ‘held’ by an employer under s. 7(7);
• a taxi (and certain other vehicles) is an exempt car fringe benefit under s. 8(2) provided that there is no private use of the car other than:
  • work related travel of the employee — i.e. travel between home and work, or travel that is incidental to travel undertaken in the course of work; or
  • minor, infrequent or irregular private use.

FBT issue following the Uber decision

Following the Uber decision in February 2017, TaxBanter (and other tax professionals) promptly identified that there could be an inconsistency between the GST legislation and the FBT legislation, depending on whether the meaning of ‘taxi travel’ for GST purposes which was determined to include ride-sourcing services also applied for the purposes of the FBT exemption for ‘taxi travel’. There was speculation that the ATO would consider the FBT exemption as being confined to traditional taxi services. On 27 September 2017, the ATO issued a discussion paper titled TDP 2017/2: Fringe Benefits Tax – Definition of Taxi. The discussion paper set out the ATO’s preliminary views on the meaning of ‘taxi’ for FBT purposes, having regard to the Uber decision and the proposed changes to taxi licensing regulations in a number of States and Territories. In the discussion paper, the ATO stated:

It is the ATO’s preliminary view that it is appropriate to interpret the meaning of ‘taxi’ in the FBTAA in a manner that encompasses the Federal Court’s finding in Uber. Accordingly, the ATO is proposing that a ‘taxi’ — as defined in the FBTAA — should be interpreted to mean a vehicle that is available for hire by the public and is licensed to transport a passenger at his or her direction for the payment of a fare that will often, but not always, be calculated by reference to a taximeter.

Consultation questions

Feedback was requested in relation the following questions:

1. Should a ‘motor vehicle that is licensed to operate as a taxi’ be interpreted to mean a motor vehicle that is statutorily permitted to transport a passenger at his or her direction for the payment of a fare that will often, but not always, be calculated by reference to a taximeter?
2. Should the definition of ‘taxi’ in s. 136(1) of the FBTAA be interpreted to include not just vehicles licensed to provide taxi services, including rank and hail services, but ride-sourcing vehicles and other vehicles for hire?
3. If the proposed definition is adopted, the result will be an expansion of the exemption. Are there consequences of taking this approach that the ATO should be aware of?
4. Have you identified any issues with the proposed interpretation of ‘taxi’ in its application to other provisions within the FBTAA?

Recent ATO guidance

In early July 2019, the ATO clarified that the FBT exemption for taxi travel does not extend to ride-sourcing services provided in a vehicle that is not licensed to operate as a taxi. This is because the FBT exemption is limited to travel undertaken in a vehicle that is licensed to operate as a taxi by the relevant State or Territory. This position is based on the definition of ‘taxi’ in the FBTAA which differs to ‘taxi travel’ as defined in the GST Act. Notably, this view differs from the ATO’s preliminary view expressed in its September 2017 discussion paper.

Other FBT exemptions may apply

The ATO holds the view that the FBT exemption for certain taxi travel does not apply where the employee travels using a ride-sourcing services such as Uber — but all is not lost. The fringe benefit may be eligible for other FBT relief.

Minor benefits exemption

Section 58P of the FBTAA provides an exemption for minor benefits. For the benefit to be considered ’minor’, the notional taxable value of the benefit must be less than $300 and it would be unreasonable to treat it as a fringe benefit, having regard to a number of factors including whether the benefit is provided infrequently and irregularly. It would be expected (and hoped) that becoming ill or injured in the workplace and requiring a ride home or to hospital is an infrequent event for any employee.

Where the minor benefits exemption is not available, two other options may be considered.

Otherwise deductible rule

Under  the ’otherwise deductible rule’, the taxable value of a benefit is reduced by the amount that would have been allowed as a deduction to the employee had they incurred the cost themselves (s. 24). Whether the Uber fare would have been allowable as a deduction to the employee depends on the facts and circumstances.

Employee contributions

Broadly, the employer’s FBT liability in respect of an expense payment fringe benefit is reduced to the extent that the employee makes a payment to the employer as a contribution towards part or all of the cost of the benefit (s. 23 of the FBTAA). However, it is unlikely, in practice, that an employer would pay for an employee’s ride in an Uber then receive a payment for that ride from the employee that reduces the taxable value of the fringe benefit.

So how is the taxable FBT treatment of ride-sourcing services an issue?

There may be a number of scenarios where the inability to access the taxi travel exemption in s. 58Z of the FBTAA will be an issue, but consider an employee who salary packages the cost of travelling to or from work in a taxi versus an Uber. If the employee salary packages taxi travel from their home to their place of work, or from their place of work to their home, the provision of the benefit is exempt under s. 58Z because the trip either begins or ends at the employee’s place of work and the travel is undertaken in a taxi. However, equivalent travel using an Uber would not qualify as an exempt benefit under s. 58Z; nor would it be otherwise deductible under s. 24.

Proposed amendment to remove anomaly in law

On 6 September 2019, the Government released for comment draft legislation titled Treasury Laws Amendment (Measures for a Later Sitting) Bill 2019: Miscellaneous Amendments. Part 2 of the draft Bill proposes to amend the definition of ‘taxi’ in s. 136(1) of the FBT Act to replace the reference to ‘taxi’ with ‘a car used for taxi travel (other than a limousine)’ (see paras. 1.61 and 1.62 of the draft EM).

The term ‘taxi travel’ will be defined as having the same meaning as in the GST Act, namely:

travel that involves transporting passengers by taxi or limousine, for fares.

This will address concerns that the current meaning of ‘taxi’ (i.e. ‘a motor vehicle licenced to operate as a taxi’) in the FBT Act prevents the FBT exemptions from applying to ride sharing providers such as Uber.

Since the Federal Court’s decision in Uber B.V. v FCT [2017] FCA 110, Ubers have been treated the same as taxis for GST purposes. However, the distinction for FBT purposes has been an issue, as this article has discussed.

The application of the proposed amendment is the provision of a fringe benefit on or after the day of Royal Assent.

Final observations

From a policy perspective, this illustrates, yet again, how similar terms in the tax law can have very different meanings within specific statutes. Such inconsistencies lead to confusion, make the tax law more complex and can ultimately result in higher compliance costs. Practically, the difference in the meaning of ‘taxi’ for FBT purposes and ‘taxi travel’ for GST purposes has the following implications:

• an employer can utilise the FBT exemption for certain trips by their employees provided they use a taxi service which will generally cost more than a ride-sourcing service; or
• to try and save money the employer can a use a ride-sourcing service, but the trip will be subject to FBT …

… take your pick.

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