Commonwealth Numbered Acts

FRINGE BENEFITS TAX ASSESSMENT ACT 1986 No. 39 of 1986 - SECT 52

52. (1) Where-

   (a)  the recipient of a residual fringe benefit in relation to an employer
        in relation to a year of tax is an employee of the employer;

   (b)  if the recipient had, at the comparison time, incurred and paid
        expenditure in respect of the provision of the recipients benefit and
        had not been reimbursed in respect of any part of that expenditure-

        (i)    a once-only deduction would, or would but for section 82a, and
               Subdivisions F and G of Division 3 of Part III, of the
               Income Tax Assessment  Act 1936 , have been allowable to the
               recipient under that Act in respect of a
percentage (in this sub-section referred to as the "deductible percentage") of
the expenditure; and

        (ii)   the deduction would not be an eligible rental property
               deduction within the meaning of Subdivision G of Division 3 of
               Part III of that Act;

   (c)  except where the fringe benefit is-

        (i)    an exclusive employee residual benefit;

        (ii)   an extended travel residual benefit; or

        (iii)  a car residual benefit,
the recipient gives to the employer, before the declaration date, a
declaration, in a form approved by the Commissioner, in respect of the
recipients benefit;

   (d)  where the fringe benefit is an extended travel residual benefit-the
        recipient gives to the employer, before the declaration date, a
        travel diary in relation to the travel undertaken by the recipient to
        which the fringe benefit relates; and

   (e)  where the fringe benefit is a car residual benefit in respect of a car
        owned by, or leased to, the recipient during a period (in this section
referred to as the "holding period") in the year of tax-the recipient gives to
the employer, before the declaration date-

        (i)    a declaration, in a form approved by the Commissioner, that
               purports to set out-

                (A)  the holding period;

                (B)  the number of whole business kilometres travelled by the
                     car during the holding period; and

                (C)  the number of whole kilometres travelled by the car
                     during the holding period; or

        (ii)   where the average number of business kilometres per week
               travelled by the car during the holding period exceeded 96-

                (A)  a declaration referred to in sub-paragraph (i); or

                (B)  a declaration, in a form approved by the Commissioner,
                     that purports to set out the holding period and includes
                     a statement by the recipient that the average number of
                     business kilometres per week travelled by the car during
                     the holding period exceeded 96, the taxable value, but
                     for Division 13, of the residual fringe benefit in
                     relation to the year of tax is the amount calculated in
                     accordance with the formula A (1-B), where-
A is the amount that, but for this sub-section and Division 13, would be the
taxable value of the residual fringe benefit in relation to the year of tax;
and
B is-

   (f)  in a case where paragraph (e) does not apply-the deductible
        percentage;

   (g)  where paragraph (e) applies and a declaration referred to in
        sub-paragraph (e) (i) has been given to the employer-

        (i)    in a case to which sub-paragraph (ii) of this paragraph does
               not apply-the deductible percentage or 33 1/3%, whichever is
               the less; or

        (ii)   in a case where the declaration contains a statement that
               relevant car documents were maintained by or on behalf of the
               recipient and the declaration is accompanied by a copy of those
               documents-the deductible percentage; or

   (h)  where sub-paragraph (e) (ii) applies but a declaration referred to in
        sub-paragraph (e) (i) has not been given to the employer-33 1/3%.

(2) For the purposes of the application of this section in relation to a
fringe benefit, where the recipient-

   (a)  while undertaking travel referred to in paragraph (1) (d), engages in
        an activity in the course of producing assessable income of the
        recipient; and
(b) does not make, as mentioned in the definition of "travel diary" in
sub-section 136 (1), an entry relating to the activity, being an entry of the
kind referred to in that definition, the activity shall be deemed not to have
been engaged in by the recipient in the course of producing assessable income.