Article

FBT Article ‘ Commissioners draft travel ruling: Part I

The Commissioner of Taxation has recently issued an extensive draft ruling on the deductibility of travel expenses. When finalised the ruling will replace a number of existing rulings on the topic. This article gives an overview of the Commissioner’s approach. In Part II, some commonly encountered factual situations are considered.

This is a feature article available to the public. For access to all articles from TaxEd, please click here to become a member.

TR 2017/D6 – Deductibility of employees’ travel expenses (Part I)

On 28 June 2017, the Commissioner issued TR 2017/D6 entitled Income tax and fringe benefits tax: when are deductions allowed for employees’ travel expenses?.

The draft ruling sets out the Commissioner’s preliminary views on the general principles for determining whether an employee can deduct travel expenses under s. 8-1 of the ITAA 1997. It discusses:

  • the general principles of deductibility of travel expenses under s. 8-1;
  • the application of the principles to the following four categories of transport expenses:
    • ordinary home to work travel;
    • special demands travel;
    • co-existing work locations travel; and
    • relocation travel;
  • the application of the principles to the following two categories of accommodation, meal and incidental expenses:
    • work-related accommodation; and
    • relocation or ‘living away from home’ accommodation.

TR 2017/D6 is a consolidation of seven rulings and determinations which will be withdrawn once the draft ruling is finalised. The draft ruling, which contains 255 paragraphs, includes 18 examples and we strongly recommend members read the examples to determine whether any may apply in their circumstances.

It should be noted that the principles dealing with the deductibility of travel expenses under s. 8-1 apply equally to deductibility of car expenses under Division 28 of the ITAA 1997.

What is a travel expense?

For the purposes of the draft Ruling, a travel expense is an expense relating to:

  1. transport (that is, travel by airline, train, car, bus or other vehicle); and
  2. accommodation, meals and incidental expenses of an employee when they travel away from home for work.

An employee can deduct a travel expense under s. 8-1 to the extent that:

  • they incur the expense in gaining or producing their assessable income; and
  • the expense is not of a capital, private or domestic nature.


Transport expenses — i.e. travel by airline, car, bus etc.

A transport expense is deductible where the travel is undertaken in performing the employee’s work activities. Travel may be said to be undertaken in performing an employee’s work activities if:

  1. the work activities require the employee to undertake the travel — travel to start work is preliminary to the work activity;
  2. the employee is paid, directly or indirectly, to undertake the travel — the travel should be able to be characterised as an income-producing activity for which the employee is paid (a travel allowance does not reflect pay for the period spent travelling); and
  3. the employee is subject to the direction and control of their employer for the period of the travel — ‘direction and control’ means the employee is subject to their employer’s orders or directions, whether or not those orders or directions are exercised during the period of the travel.

Travel arrangements that are contrived to make private travel appear to be work travel may be determined by regard to whether the work involves special demands and whether the employee has co-existing work locations.

Categories of travel expenses

The above-mentioned principles are applied to four categories of transport expenses and illustrated by way of examples. Refer to the table below:

Category Commissioner’ preliminary views
Ordinary home to work travel — i.e. travel between home and a regular work location

Not deductible

This travel is required for an employee to commence work or to depart after work is completed and is usually evident without referring to specific terms of employment.

The specific terms of employment may be relevant to determining deductibility of travel between home and a regular work location which is temporary or remote.

See examples 1, 2 and 3 in the ruling.

Special  demands travel — i.e. travel between home and a regular work location but part of the journey is an express or implied requirement or demand of the job

Deductible

Part of the journey may be special demands travel. Special demands are specific physical or logistical requirements of the work activity, including:

  • the remoteness of the work location — see example 4;
  • a requirement to move continuously between changing work locations — see example 5;
  • a requirement to work away from home for an extended period — see examples 14 to 16; and
  • other special circumstances of the work activity.
Co-existing work locations travel — i.e. travel which can be attributed to the employee having to work in more than one location

Deductible

The travel is directly between work locations or between home and an alternative work location; and it is reasonable to conclude that the travel is undertaken in performing the employee’s work activities because of the requirement to work in more than one location. Such travel includes:

(i)     travel that takes up a large part of the day;

(ii)    short-term travel to a temporary alternative work location — see examples 7 and 8;

(iii)   longer-term travel to a temporary alternative work location — see example 9;

(iv)   ongoing travel to an alternative work location — see examples 10 to 13;

(v)    travel required under other circumstances involving terms of employment or special demands — see examples 14 to 16.

Relocation travel — i.e. travel undertaken in relocating for work

Not deductible

Relocation travel is preliminary to work and the cost of such travel is not incurred in performing an employee’s work activities. It also has a private or domestic nature, often reflecting the employee’s choice about where to live. This can be concluded without referring to specific terms of employment.

See example 17.

Accommodation, meal and incidental expenses

Employee expenditure for accommodation, meal and incidentals e.g. the ordinary costs of maintaining a home and consuming food and drink to go about their daily activities, such as to attend work is:

  • preliminary to the work, and is not incurred in the course of performing those activities; and,
  • generally, of a private or domestic nature.

Likewise, expenditure incurred in relocating to a place of work or in living away from home is preliminary to the work and is not deductible.

Accommodation, meal and incidental expenses that are incurred by an employee in performing an employee’s work activities, and are therefore deductible, only where:

(a)    the employee’s work activities require them to undertake the travel;

(b)   the work requires the employee to sleep away from home overnight;

(c)    the employee has a permanent home elsewhere; and

(d)    the employee does not incur the expenses in the course of relocating or living away from home.

Categories of accommodation, meal and incidental expenses

The draft Ruling contain examples to show how the above principles apply to two categories of accommodation, meal and incidental expenses. These categories are as follows:

Work-related accommodation

Deductible

Accommodation, meals and incidental expenses which satisfy these conditions:

  • the employee’s work activities require them to undertake the travel;
  • the work requires the employee to sleep away from home overnight;
  • the employee has a permanent home elsewhere; and
  • the employee does not incur the expenses in the course of relocating or LAFH.
Relocation or ‘living away from home’ (LAFH) accommodation

Not deductible

Relocation travel is preliminary to work and not incurred in performing an employee’s work. It also has a private or domestic nature in that it often reflects and employee’s choice about where to live.

The fact that an employer has required the employee to relocate or live away from home does not alter the private nature of the expenditure.

The fact that an employer has required the employee to relocate or live away from home does not alter the private nature of the expenditure.

Important — Apportionment of expenses

Expenses must be apportioned to the extent that they are of a private nature or are not incurred in producing assessable income. This includes where the employee or members of their family stay in the accommodation for recreational or other private purposes — except where the private use is merely incidental.

Discussion continues in Part II

This concludes Part 1 of this month’s article on TR 2017/D6. Having provided an overview of the Commissioner’s views on the principles applying to deductibility of travel, the discussion continues in Part II  with consideration of some commonly encountered factual situations where these principles are applied.

Disclaimer: This article is based upon information available as at the time of publishing and may be subject to change.