Esso Australia Ltd v Commissioner of Taxation [1998] FCA 1253

FEDERAL COURT OF AUSTRALIA TAXATION – fringe benefits tax – exempt residual benefit – whether child care facility conducted by applicant and two other corporations on premises leased by them is located on business premises of the applicant for the purposes of s 47(2) of Fringe Benefits Tax Assessment Act 1986. WORDS AND PHRASES – "of". Fringe Benefits Tax Assessment Act 1986 (Cth) s 47(2), 136(1) Taxation Administration Act 1953 (Cth) s 14ZAF, 14ZAZA Saraswati v The Queen (1991) 172 CLR 1 – affirmed Bailey v Worsley (1969) VR 79 – cited Re Simersall; Blackwell v Bray (1992) 35 FCR 584 – cited ESSO AUSTRALIA LIMITED v COMMISSIONER OF TAXATION

VG 213 of 1998 JUDGE: MERKEL J PLACE: MELBOURNE DATE 2 OCTOBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 213 of 1998

BETWEEN: ESSO AUSTRALIA LIMITED

(ACN 000 018 566)

AppELLANT

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: MERKEL j

DATE OF ORDER: 2 october 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The appeal be allowed. 2. In so far as the Private Ruling of the respondent dated 19 February 1997 relates to the appellant's liability to fringe benefits tax the Ruling be set aside and be remitted to the respondent to be determined in accordance with law. 3. The respondent pay the appellant's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 213 of 1998

BETWEEN: ESSO AUSTRALIA LIMITED

(ACN 000 018 566)

Applicant

AND: COMMISSIONER OF TAXATION

Respondent

JUDGE: MERKEL J

DATE: 2 october 1998

PLACE: MELBOURNE

REASONS FOR JUDGMENT

Introduction The premises at 219 Dorcas Street, South Melbourne ("the leased premises") are leased from the United Church in Australia Property Trust (Victoria) by Esso Australia Ltd ("Esso"), Lend Lease Corporation Ltd ("Lend Lease") and BP Australia Limited ("BP") for the purposes of conducting a child care facility for the benefit of the employees of Esso, Lend Lease and BP. Esso claims that the child care facility at the leased premises is provided by it for the benefit of its employees and qualifies for exemption from fringe benefits tax as an exempt residual benefit, pursuant to s 47(2) of the Fringe Benefits Tax Assessment Act 1986 (Cth) ("the Act"). The issue arising for determination on the present appeal is whether the child care facility, located on the premises leased by Esso, Lend Lease and BP, is located on business premises of Esso for the purposes of s 47(2) of the Act.