The ruling that brought shopping centre, hospital and office car parks into scope, and with them a large number of employers who had never paid car parking FBT.
Taxation Ruling TR 2021/2 sets out the Commissioner’s view of when a car parking fringe benefit arises. It replaced TR 96/26 and took effect from 1 April 2022. If your car parking position was formed before then, it was formed under a materially different set of rules.
The old ruling had been read as excluding facilities whose fee structure was designed to discourage all-day parking — the classic case being a shopping centre that offers free short stays and charges a steep penalty rate for long ones. On that reading, a great many suburban and regional car parks fell outside the definition, and so did the employers near them.
Following the Federal Court’s decisions in the Qantas and Virgin Blue matters, the ATO abandoned that reading. Under TR 2021/2:
Employers outside CBDs were the ones caught. A regional office with a staff car park, half a kilometre from a shopping centre deck charging $15 for a long stay, moved from “no liability” to “liability” without anything at that site changing.
Two things follow. First, a position that has not been reviewed since 1 April 2022 should not be relied on. Second, the annual re-test matters more than it used to, because the population of qualifying stations is now much larger and more volatile.
TR 2021/2 sets out characteristics rather than a bright line. A facility must be permanent, must be commercial, must offer all-day parking, and must be available to the public. Each of those can require a judgment call at the margins — and one of them has since been litigated to the Full Federal Court.
The “commercial” limb was the live question. In FCT v Toowoomba Regional Council [2026] FCAFC 50 the Full Court held that “commercial” means engaged in, or in the nature of, commerce, and does not require an intention to make a profit. That closes off the argument that a council-run or not-for-profit facility falls outside the definition on that basis alone.
Read together, TR 2021/2 and the 2026 decision leave the definition wide. In practice, if a facility charges the public for parking and someone can leave a car there for six hours between 7am and 7pm, it is likely in scope regardless of who owns it or what the operator’s motives are.
We set aside every tariff tier that cannot span six hours between 7am and 7pm — free short-stay periods, evening and weekend concessions — and assess what remains. Free elements of a tariff are irrelevant to the all-day test by definition, so they cannot be evidence that a facility is non-commercial.
Where a facility is genuinely finely balanced, we say so in the report and set out the basis on which we treated it as included or excluded, so you and your adviser can form your own view rather than inherit ours.
Give us the car park address and the dates a benefit was provided. We survey the rest and come back within 24 hours.