In May, the Federal Court handed down its decision in Virgin Australia Airlines Pty Ltd v FCT  FCA 523. It established that for the purposes of determining whether an employer has provided a ‘car parking fringe benefit’, either:
Accordingly, the provision of car parking spaces at the airport does not constitute the provision of a car parking fringe benefit.
This article will revisit the general legislative definition of a car parking fringe benefit before considering the Court’s interpretation in the Virgin decision. Further the article will look at the Commissioner’s draft views in relation to car parking fringe benefits which the ATO anticipates it will soon finalise.
Section 39A of the FBTA Act sets out when a ‘car parking fringe benefit’ has been provided.
In summary, an employer provides a ‘car parking benefit’ on a particular day when, in relation to one or more daylight periods:
Section 136(1) defines an employee’s primary place of employment in relation to a day as meaning business premises, or associated premises, of the employer or an associate of the employer, where:
those premises are or were:
The Virgin decision considers an employee’s primary place of employment in circumstances where the employee performs employment duties in multiple locations, including a mode of transportation, on a particular day.
The following are relevant definitions contained in the FBTA Act or the ITAA 1997.
All-day parking means parking of a car for a continuous period of six hours or more during the ‘daylight period’ — i.e. after 7.00 am to before 7.00 pm — on that day.
Car means a motor-powered road vehicle (including a motor car, sports utility vehicle, van or utility, but not a motor cycle) designed to carry a load of less than one tonne and fewer than nine passengers. The car must be:
Car space refers to a space in which a car can reasonably be parked, and does not need to be on bitumen or a paved surface or marked as a parking bay.
Commercial parking station, in relation to a particular day, means a permanent commercial car parking facility where any or all of the car parking spaces are available in the ordinary course of business to members of the public for all-day parking on that day on payment of a fee, but does not include a parking facility on a public street, road, lane, thoroughfare or footpath paid for by inserting money in a meter or by obtaining a voucher. See draft Ruling TR 2019/D5 for the Commissioner’s preliminary views on what constitutes a commercial parking station.
Daylight period in relation to a day is the period after 7 a.m. and before 7 p.m. on that day.
Minimum parking period is a combined parking period of more than four hours (the four hours do not need to be continuous).
On-street parking is parking on a street, road, lane, thoroughfare or footpath paid for by inserting money in a meter or by obtaining a voucher.
Place of residence is a place where a person resides or has sleeping accommodation. It does not need to be the employee’s usual or normal residence. It could be a place at which the employee sleeps on a temporary basis — e.g. a hotel or serviced apartment.
Work car park is a business premises or associated premises of the provider, where cars are parked in a car space on that day. It does not need to be a commercial parking station and includes an area where pool cars or fleet cars available for employees to use are parked. A business may have multiple locations where car spaces are provided to employees — each is considered to be a work car park. (See TR 2000/4 for the Commissioner’s views on business premises and associated premises.)
The car parking threshold for each income year is published by the ATO here. It is $9.25 for the 2021–22 FBT year.
The Taxpayers were Virgin Australia Airlines Pty Ltd and Virgin Australia Regional Airlines Pty Ltd.
The Taxpayers, whose principal business activity was the transportation of passengers on aircraft, had contracted with commercial car park operators at Sydney, Brisbane and Perth airports for the provision of car parking spaces at those airports. The Taxpayers provided the car parking facilities to the flight and cabin crew employees (the employees) by giving them access cards to the car park at the airport nearest to the location where the employees lived (the origin airport).
During their rostered shifts, the employees performed their duties at both airport terminals and on the aircraft. The type of duties undertaken prior to departure and following arrival of the aircraft were central to the question of whether the airport terminal was the ‘primary place of employment’ of the employees.
The flight crew employees undertook a number of duties at airport terminals, including:
The duties of cabin crew employees included:
In calculating their FBT liabilities for the 2012–13 to the 2015–16 FBT years, the Taxpayers treated the provision of all car parking spaces at the origin airport to the employees as a car parking fringe benefit pursuant to s. 39A of the FBTA Act.
The Commissioner assessed the Taxpayers to FBT on the basis that the employees’ ‘primary place of employment’ was their home base airport terminal in Sydney, Brisbane or Perth. The taxpayer objected to the assessment and the objection was disallowed.
In the Commissioner’s reasons for disallowing the objection, the Commissioner stated that it was understood that ‘the [employees] spend most of their time on the aircraft and are rostered for various routes and differing time schedules’.
The Taxpayers contended that the employees’ primary place of employment was the aircraft on which they carried out their duties, and that the duties performed at terminals were ancillary to the principal duties performed onboard the aircraft. Therefore their cars were not parked at, or in the vicinity of, their primary place of employment.
The Commissioner contended that the employees’ primary place of employment on each working day was the home base airport terminal at which they signed on for a shift. An employee’s car was parked ‘at, or in the vicinity of’ their primary place of employment on each day the employee used the car park at their home base.
Alternatively, their employees’ primary place of employment was the airport at which they commenced their shift if it was other than the home base terminal. In this case, an employee’s car was parked ‘at, or in the vicinity of’ their primary place of employment on each day the employee used the car park at the airport where they commenced their shift.
The Federal Court, allowing the Taxpayers’ appeal against the Commissioner’s objection decisions, held that the Taxpayers did not provide car parking fringe benefits to the employees.
In cases of domestic flights where the employees worked only on one aircraft on a particular day, as well as on international flights, the employees’ primary place of employment on that day was the aircraft which, for the purposes of s. 39A(1)(f), was not within the vicinity of any of the car parks.
In cases of domestic rosters involving multiple sectors using different aircraft on a particular day, there was no primary place of employment and s. 39A(1)(f) did not arise.
The employees did not have a ‘sole’ place of employment but performed their duties of employment in several places. The question was which of the following locations was their ‘primary’ place of their employment:
The ordinary meaning of the word ‘primary’ required a determination as to which place of employment was the first or highest in rank or importance. This requires undertaking a qualitative and quantitative exercise to compare the duties performed at each place.
For domestic flights where the employees worked on only one aircraft during the day, their primary place of employment on that day was that aircraft. Most of the relevant employees’ time was spent performing their duties onboard the aircraft and while it was in flight.
This argument was even stronger for international flights, where the time spent onboard the aircraft was likely to be longer.
In both cases, the duties performed by the employees at airport terminals were ancillary to the principal duties which were performed onboard the aircraft. In a quantitative sense, such duties were of a short duration. In a qualitative sense, they were still ancillary to the onboard duties.
Where employees worked on different aircraft on a particular day, the fact that different aircraft were used did not mean that the ‘home base’ airport, nor the terminal where the employees signed on, was the primary place of employment. The amount of time spent performing duties at airport terminals was far outweighed by the time spent performing duties on the aircrafts. Under these rosters, there was no primary place of employment.
Where the employees operated on only one aircraft on a particular day, that was their primary place of employment, which was plainly not within the vicinity of any of the car parks.
Where more than one aircraft was involved on a particular day, there was no primary place of employment and the vicinity question did not arise.
The outcome of this case may potentially have implications for employers in other industries whose employees perform most of their duties on a mode of transportation — these may include delivery trucks; passenger and freight trains; buses; cargo ships and passenger vessels; hire car drivers; ambulances and similar.
The question to be answered is whether the duties performed at a home depot or home base — where the employer has provided car parking facilities — are merely ancillary to the duties performed elsewhere; that is, where is the primary place of employment?
The Court decision cannot be taken to mean that all employees who work on moving vehicles or other transport have that as their primary place of employment. In each case it must be assessed as to which of the employment duties are principal and ancillary duties and where they are performed. For example, where an employee who does most of their work on aircraft but only when they are stationary and not in flight, the conclusion as to their primary place of employment may be different to that for flight crew.
Of course, a car parking fringe benefit can only exist if all other conditions are met, and no exemption applies.
The ATO anticipates that it will soon finalise its ruling setting out the Commissioner’s views in relation to these conditions. Additionally, from 1 April 2021, the exemption in relation to small business car parking is extended to entities with aggregated turnover up to $50 million.
Draft Ruling TR 2019/D5 titled Fringe benefits tax: car parking benefits (the draft Ruling) was issued on 13 November 2019. It sets out the Commissioner’s preliminary views on when the provision of car parking is a ‘car parking benefit’ for the purposes of the FBTA Act.
When the final Ruling is published, the Commissioner’s revised view on the meaning of the term ‘commercial parking station’ will apply from 1 April 2022.
An updated version of Chapter 16 in the Fringe benefits tax — a guide for employers to reflect the changes will also be published. A draft update for comment was published on 27 November 2019 pending consultation.
In particular, TR 2019/D5 provides guidance on what constitutes a ‘commercial parking station’. The draft Ruling differs from TR 96/26 by recognising that a car park, which satisfies all other requirements, can still be considered a ‘commercial parking station’ even if:
For a ‘car parking benefit’ to arise, the commercial parking station must be located within a one kilometre radius of the work car park — this will be the case if:
The draft Ruling also takes into account significant Court decisions handed down after TR 96/26 was issued.
The Full Federal Court in Virgin Blue Airlines Pty Ltd v FCT  FCAFC 137 held that:
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