47Exempt residual benefits

#### 47 Exempt residual benefits (1) Where: (a) in respect of the employment of a current employee, the employer, or an associate of the employer, provides a residual benefit to the employee that consists of transport of the employee, otherwise than in an aircraft: (i) between: (A) the place of residence of the employee; and (B) the place of employment of the employee or any other place from which or at which the employee performs duties of that employment; or (ii) in a case where the place referred to in sub‑subparagraph (i)(B) is in a metropolitan area—on a regular and scheduled service over a route wholly within that metropolitan area; and (b) where the provider is the employer—the employer carries on a business of providing transport to members of the public; and (c) where the provider is an associate of the employer—the employer and the associate each carries on a business of providing transport to members of the public; and (d) the transport referred to in paragraph (a) is provided in the same, or substantially the same, circumstances as transport provided to members of the public in the ordinary course of carrying on a business of providing transport to members of the public; and (e) the employee is employed in the business of providing transport to members of the public; and (f) the benefit is not provided under a salary packaging arrangement; the benefit is an exempt benefit. (1A) Where: (a) a person is an employee of a government body; and (b) the person’s duties of employment are performed in a police service; and (c) the person is provided with a residual benefit consisting of the provision of travel on public transport; and (d) the benefit is provided for the purpose of travel between: (i) the person’s place of residence; and (ii) the person’s primary place of employment; the benefit is an exempt benefit. (2) Where: (a) a residual benefit provided to a current employee in respect of his or her employment consists of: (i) the provision, or use, of a recreational facility; or (ii) the care of children of the employee in a child care facility; and (b) the recreational facility or child care facility, as the case may be, is located on business premises of: (i) the employer; or (ii) if the employer is a company, of the employer or of a company that is related to the employer; the benefit is an exempt benefit. (3) Where a residual benefit provided to a current employee in respect of his or her employment consists of the use of property (other than a motor vehicle) that is ordinarily located on business premises of, and is wholly or principally used directly in connection with business operations of: (a) the employer; or (b) if the employer is a company—the employer or a company that is related to the employer; the benefit is an exempt benefit. (4) For the purposes of subsection (3), toilets, bathroom facilities, food or drink vending machines, tea or coffee making facilities, water dispensers or other amenities (not being facilities for drinking or dining) for the use of employees of an employer shall be taken to be principally used directly in connection with business operations of the employer. (4A) For the purposes of subsection (3), a building site, construction site or any similar place where a person carries on business operations shall be taken to be business premises of the person. (5) Where: (a) a residual benefit consisting of the subsistence, during a year of tax, of a lease or licence in respect of a unit of accommodation is provided to an employee of an employer in respect of his or her employment; and (b) the unit of accommodation is for the accommodation of eligible family members and is provided solely because the duties of that employment require the employee to live away from his or her normal residence; and (ba) the employee satisfies: (i) sections 31C (about maintaining an Australian home) and 31D (about the first 12 months); or (ii) section 31E (about fly‑in fly‑out and drive‑in drive‑out requirements); and (c) the accommodation is not provided while the employee is undertaking travel in the course of performing the duties of that employment; and (d) any of the following conditions is satisfied: (i) subsection (7) applies in relation to the provision of transport for the employee in connection with travel in the period in the year of tax when the lease or licence subsisted, being travel between the employee’s usual place of residence and the employee’s usual place of employment; (ii) if the employee satisfies sections 31C and 31D—the employee gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, purporting to set out the matters in subparagraphs 31F(1)(a)(i) to (iii); (iii) if the employee satisfies section 31E—the employee gives to the employer, before the declaration date, a declaration, in a form approved by the Commissioner, purporting to set out the matters in subparagraphs 31F(1)(b)(i) to (iii); the benefit is an exempt benefit in relation to the year of tax. (6) Where: (a) a residual benefit consisting of the provision or use of a motor vehicle is provided in a year of tax in respect of the employment of a current employee; (aa) the motor vehicle is not: (i) a vehicle used for taxi travel (other than a limousine) let on hire to the provider; or (ii) a car, not being: (A) a panel van or utility truck; or (B) any other road vehicle designed to carry a load of less than 1 tonne (other than a vehicle designed for the principal purpose of carrying passengers); and (b) there was no private use of the motor vehicle during the year of tax and at a time when the benefit was provided other than: (i) work‑related travel of the employee; and (ii) other private use of the motor vehicle by the employee or an associate of the employee, being other use that was minor, infrequent and irregular; the benefit is an exempt benefit in relation to the year of tax. (6A) Where: (a) a residual benefit consisting of the provision or use of a motor vehicle is provided by a particular person (in this subsection called the provider) in a year of tax in respect of the employment of a current employee of an employer; (b) at all times during the year of tax when the motor vehicle was held by the provider, the motor vehicle was unregistered; and (c) during the period in the year of tax when the motor vehicle was held by the provider, the motor vehicle was wholly or principally used directly in connection with business operations of: (i) the employer; or (ii) if the employer is a company—the employer or a company that is related to the employer; the benefit is an exempt benefit in relation to the year of tax. (6B) A reference in subsection (6A) to a motor vehicle held by a provider is a reference to: (a) a motor vehicle owned by the provider; (b) a motor vehicle leased to the provider; or (c) a motor vehicle otherwise made available to the provider by another person. (7) Where, during a period of employment with an employer: (a) an employee’s usual place of employment is: (i) on an oil rig, or other installation, at sea; or (ii) at a location in a State or internal Territory but not in, or adjacent to, an eligible urban area; or (iii) at a remote location that is not in a State or internal Territory; and Note: For the Territory of Christmas Island and the Territory of Cocos (Keeling) Islands, see section 157. (b) the employee is provided with residential accommodation, at or near that usual place of employment, by: (i) the employer; or (ii) an associate of the employer; or (iii) a person (in this subparagraph referred to as the arranger) other than the employer or an associate of the employer under an arrangement between: (A) the employer or an associate of the employer; and (B) the arranger or another person; and (c) the employee, on a regular basis: (i) works for a number of days and has a number of days off; and (ii) on completion of the working days, travels from that usual place of employment to his or her usual place of residence and, on completion of the days off, returns from his or her usual place of residence to that usual place of employment; and (d) the employee is provided with transport on a regular basis in connection with the travel referred to in subparagraph (c)(ii) and that transport is provided by: (i) the employer; or (ii) an associate of the employer; or (iii) a person (in this subparagraph referred to as the arranger) other than the employer or an associate of the employer under an arrangement between: (A) the employer or an associate of the employer; and (B) the arranger or another person; and (e) it would be unreasonable to expect the employee to travel on a daily basis on work days between: (i) that usual place of employment; and (ii) the location of the employee’s usual place of residence; having regard to the location of those places; the residual benefit constituted by the provision of the transport referred to in paragraph (d) is an exempt benefit. (8) If: (a) a residual benefit provided in respect of the employment of an employee arose out of priority of access, for a child or children of the employee, to: (i) a place that is an eligible child care centre for the purposes of any provision of the Child Care Act 1972; or (ii) family day care provided before the commencement of item 1 of Schedule 10 to the A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 2) 1999; or (iii) care outside school hours provided before the commencement of item 1 of Schedule 10 to the A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 2) 1999; or (iv) care in school vacations provided before the commencement of item 1 of Schedule 10 to the A New Tax System (Family Assistance) (Consequential and Related Measures) Act (No. 2) 1999; or (v) an approved child care service within the meaning of the A New Tax System (Family Assistance) (Administration) Act 1999; and (b) in order to obtain that priority of access, the employer of the employee, or an associate of the employer, made a contribution under a program administered by the Families Department; the residual benefit is an exempt benefit.