21 May 14 Are airport car parking facilities commercial parking stations? - Qantas Airways Ltd
The Administrative Appeals Tribunal has found that Qantas was liable to FBT on parking provided to its employees at or near airports around Australia, with the exception of the Canberra airport. This was because, with the exception of Canberra, the airport car parking facilities were “commercial parking stations” within the meaning of s 136(1) of the Fringe Benefits Tax Assessment Act 1986 (Cth).
In the 2007 to 2010 FBT years Qantas and its associates provided car parking facilities to their employees whose primary places of work were at or very near the airports. With the exception of the Canberra airport, each of the airports had either or both long term and short term car parking facilities that were available for use upon payment of fees without further restriction as to eligibility of user. Use of the Canberra airport car park was restricted to airline travellers and meeters and greeters of airline travellers. There was no other car parking facility within the one kilometre radius of the airports that qualified as commercial parking stations within the meaning of that term as defined in s 136(1) of the FBT Assessment Act in the 2007 to 2010 FBT years.
Qantas contended that the short and long term car parks at the airports were not commercial parking stations primarily because those car parks were not provided principally, or primarily, for use by commuters driving their cars to and from work. In the alternative, Qantas contended that, for some of the airports, the fees charged were such that they were not car parks intended for all-day parking and/or, again for some of the airports, the lowest fees charged for all-day parking were less than the car parking threshold. Qantas also contended that the Canberra airport car park was not a commercial parking station for the additional reason that it was only available for use by airline travellers and meeters and greeters of airline travellers.
The Commissioner contended that, subject to an exception for the short term car park at the Brisbane airport for the 2009 and 2010 FBT years, all of the car parks at the airports were commercial parking stations as they were all available to the public for all-day parking for a fee that exceeded the car parking threshold within the words of the statute. The Commissioner contended that to be a commercial parking station all that is required is that there is a permanent commercial car parking facility where car parking spaces are available in the ordinary course of business to members of the public for all-day parking on payment of a fee, without any further qualification as to intended customers thereof. The Commissioner accepted that for the 2009 and 2010 FBT years the short term car park at the Brisbane Airport was not a commercial parking station because for those two years there was a fee structure which operated as a penalty to discourage all-day parkers, and publicity that encouraged all-day parkers to use the long term car park. In the Commissioner’s view, in certain circumstances the fee structure for a commercial car park may indicate that it is not, in fact, available for all-day parking, because the fee structure makes all-day parking uneconomic in comparison to the cost of parking for shorter periods.
On the facts as agreed, the Tribunal found that:
- for FBT liabilities associated with parking provided to employees at all airports other than the Canberra airport, the Commissioner’s objection decision should be affirmed, and
- for FBT liabilities associated with parking provided to employees at the Canberra airport, the Commissioner’s objection decision should be set aside and the objection allowed.
The Tribunal made the following observations (footnotes omitted):
“35. The statute is not expressed to, and does not seek to, differentiate car parking facilities by reference to any confined class of intended primary or predominant customers or uses as contended by Qantas. The statute does differentiate car parking facilities by reference to four criteria:
(a) first, by reference to the hours of availability of car parking spaces, namely whether car parking spaces are available in the ordinary course of business ... for all-day parking – i.e. parking for six or more hours between 7 a.m. and 7 p.m.;
(b) second, by reference to the range of customers able to use the car parking spaces, namely whether car parking spaces are available in the ordinary course of business to members of the public ...;
(c) third, by reference to location and manner of payment of fees, namely whether the parking facility is on a public street, road, lane, thoroughfare or footpath paid for by inserting money in a meter or by obtaining a voucher; and
(d) fourth, by reference to users of car parking facilities from a particular group in the community, namely whether the facility is used by disabled people.
36. While use of the car parking facilities by an employee in connection with travel by the employee between the employee’s place of residence and primary place of employment is a threshold condition before a FBT liability might arise, the legislation does not include any requirement that the commercial parking station must have primary intended users or uses. Nor does the legislation require that the car park provided by the employer and used by the employee be intended for use predominantly by employees in conjunction with travel to and from work. To the contrary, a car parking space provided by an employer and used by an employee can be a car parking space intended for use by the employer’s customers.”
Re Qantas Airways Limited and FCT  AATA 316 (Robert Benjamin J, F D O’Loughlin SM, 20 May 2014).