You win some, you lose some… and I am a bad loser…

I have patted myself on the back before for an AAT decision on FBT at my local airport. I may have congratulated myself a bit early as in Commissioner of Taxation v Qantas Airways Limited [2014] FCAFC 168 the Full Federal Court overturned there being no car parking FBT for employers who provide car parking for employees at Canberra Airport.

Now, like any upstart tax advisor I have to prove I am right and the collective wisdom of the Federal Court is wrong (as they have been shown in a few high profile appeals to the High Court – aka MBI Properties)… I quote from their learned justices…

In this case, whilst it is true that the operator of the parking stations imposed the restriction that the car parks were available only to airline passengers and meeters and greeters of airline passengers, the car parks nonetheless are public car parks in the sense that in the ordinary course of the business the car spaces are available to any member of the public on the contractual terms stipulated. The contractual terms do not mean that the car park spaces are not available to members of the public but, rather, that conditions are imposed on the use of the car park by members of the public.

So restricting the use of a car park to a certain part of the public at any time, rather than the whole public all the time, is not limiting its use as at any time any member of the public could be in the part of the public that can use it. Yes I know that is confusing (because it is a stupid argument) but in Australia, anyone can be Prime Minister (other than those with criminal records but lets ignore this…). According to this decision, the Prime Minister’s car park at Parliament House is “available to the public”. To smart by half…

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About Ken Mansell

As a stay at home Dad most of the week this is my way of pretending I am still the tax counsel of ASX and SEC listed companies, working at big 4 firms, working at the Federal Treasury, on the Henry Review and at Parliament House for the previous government.
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