Fringe Benefits Tax Assessment (Adequate Alternative Records – Living-Away-From-Home – Maintaining an Australian Home) Determination 2024

The instrument rests on a small set of statutory references and factual predicates. The main concepts, as defined or referenced in the determination, are:

• The statutory authority: the instrument is made under s123AA of the Act (Authority). The text uses subsection 123AA(1) as the legal hook that allows employers to rely on "adequate alternative records" where the statutory declaration is not provided (s5(2)(e)). The instrument therefore operates as an administrative specification under that head of the Act. The instrument itself does not reproduce s123AA, s31F, s31C, s31D, s31, s21 or s47(5); it refers to those provisions and to definitions in section 136 of the Act (Definitions note and s4).

• The class of employers: those reducing the taxable value of a living‑away‑from‑home allowance fringe benefit (section 31), or that have provided certain exempt benefits (section 21 or subsection 47(5)), where a set of conditions are satisfied (s5(2)). The determination explicitly frames the class in terms of employer behaviour with respect to particular fringe benefits and specified employee circumstances.

• The 12‑month limitation: the instrument applies to benefits that relate to the first 12‑month period the employee’s duties of employment require them to live away from the place in Australia where they usually reside when in Australia, such that section 31D is satisfied (s5(2)(c)). The phrase “first 12 month period” is incorporated by reference to s31D and is a factual trigger for the availability of the alternative records route.

• The missing statutory declaration: the instrument is explicitly directed at situations where the employer was not given a declaration that satisfies paragraph 31F(1)(a) and subsection 31F(2) (s5(2)(d)). The statutory declaration identified in s5(1)(b) is the evidentiary document referred to in paragraph 31F(1)(a) of the Act.

• Adequate alternative records: section 6 sets out the required content. The records must be written in English and must contain the enumerated items (s6(1)). The instrument also relaxes formality by allowing the information to be recorded in any type of record and in any number of records (s6(2)), that is, it does not prescribe a single form, format or document.

• Defined terms and cross‑references: the instrument notes that several expressions used are defined in section 136 of the Act, including "living‑away‑from‑home allowance fringe benefit" and "unit of accommodation" (s4 note). The determination therefore relies on the Act for key substantive definitions and for other operative provisions it references.

The practical effect of these concepts is to create an administratively defined, content‑based means for employers to meet the evidentiary requirement in s123AA(1) where the statutory declaration under s31F was not supplied. The instrument sets the minimum content of records that will be treated as “adequate” for that purpose, while leaving format and multiplicity unspecified.

The instrument identifies a narrow, specified class of persons who may rely on the alternative records. That class is employers meeting the criteria in subsection 5(2) (s5(1)(c) and s5(2)). The determination therefore primarily affects employers that:

• provide a living‑away‑from‑home allowance fringe benefit described in section 31 of the Act, or provide an exempt accommodation expense payment benefit described in section 21, or provide an exempt residual benefit described in subsection 47(5) (s5(2) opening and s5(2)(a));

• do so in respect of an employee who maintained a home in Australia such that section 31C is satisfied (s5(2)(b));

• do so in respect of the first 12‑month period the employee’s duties require them to live away from their usual Australian residence, such that section 31D is satisfied (s5(2)(c));

• did not receive a declaration that satisfies paragraph 31F(1)(a) and subsection 31F(2) from the employee (s5(2)(d)); and

• rely on the adequate alternative records provision contained in subsection 123AA(1) of the Act (s5(2)(e)).

Because the instrument is framed around subsection 123AA(1) and paragraph 31F(1)(a), it is implicitly targeted at employers who otherwise would rely on the statutory declaration mechanism but, in a given case, do not have that declaration. The instrument does not, on its face, create new obligations for employees, nor does it change the underlying statutory entitlement or tax treatment in the Act; instead it prescribes the content of the alternative documentation employers must hold to meet the evidentiary test in the absence of a s31F declaration (s6).

Secondary effects are likely limited to the employees concerned, insofar as employers will seek records from them that meet the subsection 6(1) requirements. The instrument requires information about the employee’s usual Australian residence, ownership interest (employee or spouse), availability of the residence for immediate use and enjoyment, the reasonable expectation the employee will resume living there, and the dates and addresses of where they actually resided while living away (s6(1)(a)-(e)). Those are employee‑level facts; employers will need to obtain them, retain them and rely on them when reducing taxable value or applying exemptions.

The broader FBT system and the Commissioner’s administrative practices are also implicated because the instrument designates what will count as adequate alternative records for the purposes of subsection 123AA(2) (s5(1)). The Commissioner, through this determination, specifies administrative evidence standards for a subset of benefits and circumstances.

The determination does not create freestanding tax liabilities; rather, it defines the content of records that will be taken as adequately meeting the evidentiary requirement in subsection 123AA(1) where the statutory declaration is absent. The immediate duties and rights created or clarified by the instrument are as follows:

• Employers’ right to rely on alternative records: employers who meet the factual conditions in s5(2) and who have not been given a declaration satisfying paragraph 31F(1)(a) and subsection 31F(2) may rely on the adequate alternative records described in section 6 for the purposes of subsection 123AA(1) of the Act (s5(2)(d)-(e) and s6). That is the principal “right” or administrative accommodation created by the determination.

• Employers’ duty to hold specified information: to be able to rely on subsection 123AA(1) by means of this determination, employers must hold records written in English containing the items listed in s6(1)(a)-(e). The records must show the employee’s name, the usual residence address in Australia, the three confirmations about that residence (ownership interest by employee or spouse; continued availability for immediate use and enjoyment during the period required to live away; reasonable expectation employee will resume living there), inclusive dates when duties required living away, and the address(es) actually occupied while living away (s6(1)).

• Duty of specificity and temporal scope: the instrument ties the availability of the alternative records to a specific temporal circumstance, namely the first 12‑month period the employee’s duties require them to live away from their usual Australian residence such that s31D is satisfied (s5(2)(c)). Employers must therefore determine whether the benefit in question relates to that initial 12‑month period.

• Formality and format: the instrument relaxes formality by permitting the required information to be contained in any type of record and any number of records (s6(2)). The duty is therefore not to retain a specific form of document, but to ensure the required information exists in English in one or more records.

• Interaction with the statutory declaration regime: the determination presumes the statutory declaration referred to in paragraph 31F(1)(a) and subsection 31F(2) is the primary statutory evidentiary document (s5(1)(b) and s5(2)(d)). Where that declaration exists and satisfies the statutory requirements, the employer would not need to rely on the alternative records specified here. The employer’s practical duty is therefore to ascertain whether they were given such a declaration before relying on these alternative records.

• Reliance on the Act for substantive definitions: the instrument itself refers to defined expressions set out in s136 of the Act (s4 note). Employers and advisers therefore have the duty to consult those definitions in the Act to determine whether a particular benefit falls within the classes described in s5(2).

The determination does not itself specify retention periods, penalty regimes, or enforcement procedures. Those matters, if relevant, are to be found in the Act and other instruments and are not reproduced in this determination.

The determination does not include express penalty provisions, sanctioning rules, or enforcement processes. It is an administrative specification made under section 123AA of the Act that prescribes the content of "adequate alternative records" (Authority and s5). The text of the instrument confines itself to specifying matters and the content of records; it does not, for example, set out time limits for retention, inspection rights, or fixed penalties for non‑compliance.

Because the instrument is made under a specific provision of the Act, questions about penalties, compliance notices, or audit treatment are matters for the Act and the Commissioner’s broader administration of the FBT regime. This determination does, however, have clear evidentiary implications: an employer that claims to rely on subsection 123AA(1) and is unable to produce records that satisfy the content requirements in section 6 may lack the administrative evidence the Commissioner will treat as “adequate” for the purposes of the subsection. The determination therefore operates as a statement of what records the Commissioner has determined will count as adequate alternative records in the specified circumstances (s5(1)(d) and s6).

In practice, enforcement or challenge would occur under the Act’s mechanisms, for example through audit, objection and review processes available under the tax law. The instrument itself does not describe those processes, nor does it purport to vary the operation of any penalty or remedial provisions of the Act. The absence of penalty text in the instrument means that:

• the instrument does not, by itself, create criminal or civil penalties; and

• whether an employer is subject to penalties for incorrect reporting or failing to meet evidentiary requirements depends on the Act and its enforcement apparatus, rather than on this determination’s text.

Advisers and employers should therefore treat the determination as an administrative evidentiary standard. Failure to hold the specified records will limit the employer’s ability to rely on subsection 123AA(1) under the administrative approach set out here, and any subsequent compliance consequences will be determined under the Act.

This determination is explicitly integrative rather than standalone, and it operates by cross‑reference to a number of provisions of the Fringe Benefits Tax Assessment Act 1986. The instrument:

• is made under section 123AA of the Act (Authority), and for the purposes of subsection 123AA(2) it specifies matters that include the statutory evidentiary document in paragraph 31F(1)(a) and the class of employers that may rely on subsection 123AA(1) (s5(1)(b)-(c));

• refers to substantive benefits and exemptions defined elsewhere in the Act, specifically section 31 (living‑away‑from‑home allowance fringe benefit), section 21 (exempt accommodation expense payment benefit), and subsection 47(5) (exempt residual benefit) (s5(2) opening);

• requires that the employee have maintained a home in Australia such that section 31C is satisfied, and that the benefit relate to the first 12‑month period such that section 31D is satisfied; thus the application of the alternative records route is conditional on the factual thresholds in s31C and s31D (s5(2)(b)-(c));

• identifies the statutory declaration referred to in paragraph 31F(1)(a) and subsection 31F(2) as the primary evidentiary document (s5(1)(b) and s5(2)(d)); the alternative records route only applies where that declaration was not given to the employer (s5(2)(d));

• relies on definitions contained in section 136 of the Act for expressions used in the instrument, including “living‑away‑from‑home allowance fringe benefit” and “unit of accommodation” (s4 note).

Because the instrument does not restate or alter the words of the referenced Act provisions, it must be read alongside them. The determination tells users what will constitute adequate alternative records for the purposes of subsection 123AA(1), but whether an employer may ultimately apply a particular exemption, reduction in taxable value, or other tax outcome will require reference to the substantive sections of the Act (s31, s21, s47(5), s31C, s31D, s31F and s136). The instrument therefore functions as an evidentiary adjunct to those provisions: it specifies what documentary content the Commissioner will accept as adequate where the statutory declaration is absent, without changing the substantive tests in the Act.

The determination also makes an administrative point about format and multiplicity: the required information may be contained in any type and any number of records (s6(2)). That interacts with record‑keeping obligations more generally by permitting flexibility in format while insisting on specific content. Practitioners must therefore consult the Act for retention periods, offences, and audit frameworks, because those matters are not addressed in this instrument.

The instrument records its original making date and commencement details. It was made by Ben Kelly, Deputy Commissioner of Taxation, and dated 28 February 2024 (front page and signature line). The Commencement provision records that the whole instrument commences on 1 April 2024 and that the table relates only to the provisions of the instrument as originally made (s2(1) and note). The instrument contains an express note that any information in column 3 of the commencement table is not part of the instrument and that information may be inserted or edited in any published version without forming part of the instrument (s2(2)). No amendments to the instrument are recorded within the text provided.

Accordingly, the amendment history contained in the instrument itself is limited to:

• date of making: 28 February 2024 (maker and signature lines);

• commencement: all provisions commence 1 April 2024 for the FBT year ending 31 March 2025 and subsequent FBT years (s2 and s5(1)(a)); and

• an explicit statement that the commencement table relates only to the instrument as originally made and will not be amended in that table to deal with later amendments of the instrument (s2(1) note).

There are no later amendments, revocations, or transitional provisions recorded in the supplied text. If users require information on any subsequent legislative or administrative amendments, they will need to consult the official register of legislative instruments or the Commissioner’s published updates, because no amendment history beyond the original making and commencement is provided in this determination.

The determination does not record any cases, challenges, or litigation. There are no judicial or administrative decisions cited in the document, and the instrument itself contains no statement of legal precedent or reference to past litigation. The text is an administrative determination setting out how the Commissioner will treat certain records for the purposes of subsection 123AA(1) in specified circumstances; it does not include or summarise any disputes or outcomes.

Accordingly, based solely on this instrument, there is no litigation history to report. Practitioners seeking to know whether the administrative treatment set out in the determination has been litigated or tested should search case law and administrative review records external to this instrument. The instrument does not purport to summarise or report any such history.

The determination is concise but contains several features that create specific compliance and evidentiary points to watch for:

• Scope limited to first 12 months: the alternative records route is confined to benefits that relate to the first 12‑month period the employee’s duties require them to live away from their usual Australian residence such that s31D is satisfied (s5(2)(c)). Employers must determine whether the benefit actually relates to that initial 12‑month period because the instrument does not state it applies beyond that period.

• Missing statutory declaration is required to trigger alternative records: the employer must not have been given a declaration that satisfies paragraph 31F(1)(a) and subsection 31F(2) (s5(2)(d)). If a declaration exists and does satisfy the statutory requirements, the alternative records route is not the instrument’s intended avenue.

• Language requirement: records must be written in English (s6(1)). That is an explicit requirement; records in other languages will not, on the face of the instrument, constitute adequate alternative records unless translated into English.

• Content specificity versus formality of format: while the instrument allows “any type of record” and “any number of records” (s6(2)), it is strict about the information that must be present (s6(1)(a)-(e)). Employers who rely on multiple documents must ensure the full set of required elements is present and can be assembled coherently.

• Subjective confirmations: subsection 6(1)(c) requires confirmation that the residence “continues to be available for the employee’s immediate use and enjoyment” and that “it is reasonable to expect that the employee will resume living at the residence when their duties of employment no longer require them to live away from it” (s6(1)(c)(ii)-(iii)). Those are qualitative and, in part, prospective statements about expectation and availability. The instrument does not define the standard of proof for these confirmations, so employers should be aware of potential dispute about the adequacy or truth of such statements.

• Ownership interest by spouse also counts: the confirmation in s6(1)(c)(i) is satisfied if the employee or their spouse has an ownership interest in the unit of accommodation. The instrument does not define “ownership interest” in this text; the instrument notes that “unit of accommodation” and other expressions are defined in s136 of the Act (s4 note), so ownership issues may require reference to the Act.

• Addresses actually resided at: subsection 6(1)(e) requires the address of each place the employee actually resided at when their duties required them to live away (s6(1)(e)). This may be multiple addresses, and employers must record them. The test is fact‑based about where the employee “actually resided”.

• Interplay with substantive tests in the Act: the determination does not alter statutory thresholds in s31, s21, s47(5), s31C, s31D or s31F. Employers must ensure the substantive conditions of those provisions are met in addition to holding the records specified here.

• No retention or procedural guidance: the instrument does not state retention periods, form of attestation, who must sign the records, or whether the records must be contemporaneous. The flexibility provided (any type, any number) increases practical discretion but also increases potential for dispute over the probative value of the records.

• Evidentiary risk in audits: because the instrument prescribes what will count as adequate alternative records, failure to hold these items in English may mean the employer cannot rely on subsection 123AA(1) administratively. The instrument does not specify remedial steps if records are deficient; that will be resolved under the Act’s broader enforcement processes.

These features translate into practical risks: employers must carefully map the precise factual circumstances for each employee benefit, obtain and keep English records that cover all elements in s6(1), and be prepared to justify subjective confirmations if audited.

The instrument defines a clear, element‑based pathway for employers to comply if they did not receive a s31F declaration and wish to rely on subsection 123AA(1). The compliance steps below track the instrument’s requirements and point to what employers should collect and retain in order to treat their records as “adequate alternative records” under this determination.

Step 1 , Confirm applicability

• Confirm that the employer’s situation fits the class described in s5(2): the employer has provided, in a year of tax, either (i) a living‑away‑from‑home allowance fringe benefit under s31, (ii) an exempt accommodation expense payment benefit under s21, or (iii) an exempt residual benefit under s47(5) consisting of use of a unit of accommodation (s5(2) opening and s5(2)(a)).
• Confirm the employee maintained a home in Australia such that s31C is satisfied, and that the benefit relates to the first 12‑month period the employee’s duties required them to live away from their usual Australian residence such that s31D is satisfied (s5(2)(b)‑(c)).
• Confirm that the employer was not given a declaration that satisfies paragraph 31F(1)(a) and subsection 31F(2) (s5(2)(d)). If such a declaration exists and satisfies the statutory requirements, this alternative records route is unnecessary.

Step 2 , Collect the required items of information in English

• Ensure the following are recorded in writing in English (s6(1)):
  • the employee’s full name (s6(1)(a));
  • the address of the place in Australia where the employee usually resides when in Australia (s6(1)(b));
  • confirmation that, in respect of that usual residence:
    • the employee or their spouse has an ownership interest in the unit of accommodation (s6(1)(c)(i));
    • the residence continues to be available for the employee’s immediate use and enjoyment during the period that their duties require them to live away from it (s6(1)(c)(ii));
    • it is reasonable to expect that the employee will resume living at the residence when their duties no longer require them to live away from it (s6(1)(c)(iii));
  • the inclusive dates that the employee’s duties required them to live away from their usual residence (s6(1)(d));
  • the address of each place the employee actually resided at during the period their duties required them to live away (s6(1)(e)).

Step 3 , Form and multiplicity

• The information may be contained in any type of record and any number of records (s6(2)). Employers may therefore assemble the required elements across multiple documents provided they are in English and collectively contain the specified content.

Step 4 , Record assembly and verification

• Assemble the records so that the required elements can be presented together if requested. The instrument does not require a particular format, but s6(1) lists discrete items the Commission will treat as adequate alternative records; ensure each element is present and attributable to the employee (for example, employee‑signed statements or employer records summarising employee confirmations).

Step 5 , Retention and readiness for reliance

• Keep the assembled records for the relevant FBT year(s) covered by the determination (the instrument applies to the FBT year ending 31 March 2025 and subsequent FBT years, s5(1)(a)). The instrument does not prescribe retention periods, but the employer will need to retain the records to rely on subsection 123AA(1) administratively and to respond to any compliance queries.

Step 6 , Cross‑check with the Act’s substantive tests

• Before applying any adjustment to taxable value or claiming an exemption under the referenced sections (s31, s21, s47(5)), confirm that the substantive requirements in the Act are satisfied. This determination supplies the alternative evidentiary route only where a s31F declaration was not provided.

Step 7 , Address subjective confirmations

• The confirmations required by s6(1)(c)(ii) and s6(1)(c)(iii) are prospective and qualitative. Employers should obtain clear written confirmations from the employee that explicitly address availability of the residence for immediate use and enjoyment during the period away, and the reasonable expectation the employee will resume living there. Although the instrument does not specify wording or standard of evidence, precise and contemporaneous written statements will better support reliance in any later review.

Step 8 , Translate non‑English materials into English

• If relevant source materials exist in other languages, ensure an accurate English record is created because the instrument requires records to be written in English (s6(1)). The instrument does not specify qualifications for translators; employers should ensure any translation is reliable and documented.

Step 9 , Advise payroll and FBT officers

• Ensure payroll, tax and FBT officers in the organisation understand that the alternative route is conditional on not having a s31F declaration and on meeting the instrument’s content requirements. Recordkeeping protocols should require the itemised elements in s6(1) to be captured and stored in English.

Step 10 , Seek advice where uncertain

• Because the determination is integrative with multiple substantive sections of the Act it references (s31, s21, s47(5), s31C, s31D, s31F and s136), employers should seek authoritative guidance if there is uncertainty about whether those substantive tests are met or whether a particular form of record will be accepted in a given case. The determination does not provide procedural details about audit handling or remedial steps for deficient records; adjudication of disputes will be under the Act and administrative practices.

Following these steps will align an employer’s recordkeeping with the content requirements of the instrument (s6(1) and s6(2)) and the temporal and factual prerequisites in s5(2). The instrument’s flexibility on format reduces formality burden, but places a premium on ensuring that the specific informational elements are present and in English.