A novated lease is a motor vehicle lease which has been novated, that is, the obligations in the contract have been transferred from one party to another. In Australia, it refers almost exclusively to the practice of salary packaging a motor vehicle using a novated lease.
A lease is novated with a three-way (tripartite) agreement (Deed of novation) between the lessee, the lessor (usually a finance company), and a third party, under which all parties agree that the third party will take on some or all of the lessee's obligations and rights under the lease (generally this is making the rental payments instead of the lessee, as well as having use of the vehicle).
Novated leases in Australia
Novated leases are almost exclusively used in Australia as part of an arrangement for providing the use of a motor vehicle by an employer to an employee via salary packaging.
In a salary packaging arrangement involving a novated lease, an employee leases a motor vehicle and the lease is novated to their employer, that is, the employer agrees to take on the obligations of making the lease payments and the right to use the vehicle. The employer then provides the use of the vehicle to the employee as a fringe benefit. The employer will also usually pay the other running costs of the vehicle such as fuel, insurance, registration, service and maintenance as part of the arrangement. The employer reduces the salary of the employee by their total cost. This reduction in the employee's salary results in less income tax being payable by the employee, hopefully resulting in a net financial benefit to the employee.
The term "novated lease" is often used to refer the whole salary packaging arrangement. This leads to confusion as the lease is only a component of the arrangement, and the arrangement is not itself a lease. Similarly, the terms "Novated lease company", "Lease company", and "Leasing company", are used to refer to a salary packaging management company who manages a salary packaging arrangement for the employer rather than the finance company who is actually the lessor.
If the employee ceases to be employed by that employer, the novation is cancelled, and all obligations and rights assumed by the employer under the novation agreement revert to the employee. The lease can subsequently be novated to a new employer. Once the term of the lease has expired, all obligations and rights under the deed of novation cease.
Salary packaging with novated leases
In salary packaging an employer enters an arrangement to provide non-cash benefits to their employees in exchange for an equivalent reduction in salary, in order to reduce income taxes paid by the employee on that salary, while still providing the same net benefit. A novated lease is a way of providing the benefit of the use of a motor vehicle for an employee via salary packaging without the employer having to actually own the vehicle and also allowing the vehicle to move from employer to employer with the employee bearing the responsibility of the transaction.
Tax treatment of a salary packaged novated lease
In Australia, non cash benefits provided to an employee are regarded as fringe benefits and employers must pay fringe benefits tax (FBT) on the value of these benefits at a rate equivalent to the highest marginal income tax rate.
When salary packaging a motor vehicle via a novated lease, a fringe benefit is created, and the employer may be liable to pay FBT.
Cars are treated in a concessional manner by the fringe benefits legislation and rather than using the actual running costs, the value of the fringe benefit can instead be set at 20% of the original purchase price of the vehicle, less stamp duty, motor vehicle registration and Compulsory Third Party Insurance. This concessional treatment assumes some business use of the provided motor vehicle, but business use is not actually required.
Other vehicles such as commercial vehicles, utilities and motorbikes are not subject to this treatment, but may be exempt from FBT under certain circumstances. In 2022, amendments to the Fringe Benefits Tax Assessment Act 1986 were made to exempt employers from FBT if they provide an eligible Electric vehicle or Plug in Hybrid Electric Vehicle to their employees.
The fringe benefit value may be reduced to two thirds of the original value at the start of the FBT year (1 April) following 4 full years since the purchase of the vehicle by the lessor. As most novated leases are for 5 years or less, this has a limited effect.
In addition, if the employer is registered for goods and services tax (GST) they can claim an input tax credit equal to the amount of GST they have paid as part of the running cost. This reduces their net cost, and in the case of a salary packaging arrangement, a corresponding reduction in the amount of salary forfeited by the employee in the salary packaging arrangement.
Generally, an employer also would expect their employee to reimburse any FBT the employer must pay, so the reduction in employee salary in the salary package becomes equal to the total running costs paid by the employer, less GST credits, plus any FBT costs and administration costs. It is usually beneficial to use the employee contribution method to offset the fringe benefit rather than the employer paying FBT.
Employee contribution method (ECM)
The method of valuing the fringe benefit for a car or other motor vehicle allows a contribution from the employee toward the running costs to offset the fringe benefit and reduce the FBT liability.
Since the employee is now paying some of the running costs instead of the employer, it reduces the income tax and GST benefits, but because FBT, equivalent to the highest marginal tax rate, is eliminated, the net cost to the employee in the arrangement is reduced. The ECM is only beneficial if the concessional method for valuation of the fringe benefit (at 20% of the purchase price) is used is lower than the actual running cost, otherwise all the cost would be paid directly by the employee for no tax benefits.
An employee contribution can take either the form of direct payment to third party suppliers or it can be paid to the employer. Since the maximum benefit is obtained by making a contribution of exactly the amount of the fringe benefit (eliminating all FBT), usually the latter is used to ensure the exact dollar amount of the fringe benefit is contributed during the year.
In both situations, the GST credits that the employer can claim are reduced: If the employee pays expenses, then the employer has not paid that GST to claim, and if the employee pays the employer directly, then their payment to the employer includes GST which offsets any GST credits claimed on running costs.
Thus, the reduction in employee salary becomes equal to the total running costs paid by the employer, less GST on those costs, less the employee contribution, plus GST on the employee contribution if it was paid to the employer.
The employee contribution method decreases the income tax savings because less of the total running cost is paid by the employer, resulting in less salary reduction. This extra income tax and the loss of GST credits is always smaller or equal to the cost of the FBT being eliminated, even considering the tax saved by the additional reduction in salary due to packaging the FBT, and so the net cost to the employee is reduced when the ECM is used.
The use of the employee contribution method may lead to additional confusion about the net cost to the employee, as in practice, the reduction in salary and the employee contribution both appear on the employee's payslip as "deductions". The salary reduction is often listed as "pre-tax" and the ECM as "post-tax". In fact, the reduction in salary ("pre-tax") cannot be paid to the employee as this would result in it being counted as income and therefore taxable.
Residual values and the end of a lease
At the end of the lease, the lessee is required by the contract to return the vehicle to the lessor. There will often be a term in the lease contract that requires a lessee who returns a vehicle at the end of the lease to make good any shortfall between the residual and the market value of the vehicle, if the market value is below the residual.
The residual value is an estimate of the market value of the vehicle at the end of the lease but because it is determined at the start of the lease and written into the contract, it may not reflect the actual market value of the vehicle at the end of the lease. In general, lessors are in the business of finance and not of selling used cars and so do not actually wish to take possession of the car and go to all the effort of converting it into cash. There cannot be an obligation or even a right for the lessee to purchase the vehicle as part of the contract, as the resulting arrangement would not be a bona fide lease, but instead a hire purchase or similar arrangement.
To enable/encourage lessees to keep the car rather than returning it, lease contracts usually contain terms which allow the lessee to pay a penalty for failing to return the vehicle, in the amount of the residual value. This legal fiction, that the lessee pays a penalty for refusing to return the vehicle as required by the contract, is in effect, a means whereby the lessee can "purchase" the vehicle from the lessor at the residual value at the end of the lease. This is so commonly done that employees may not even realise they can return the vehicle at the end of the lease.
Since the residual payment is not part of the salary packaging deal there is no tax saving when paying it, and so it is beneficial to the employee have a lease with the lowest possible residual value and for the rent to be higher to compensate, since tax savings are obtained on the rent when it is salary packaged. For this reason, the minimum value of a residual is restricted by the Australian Taxation Office although lower residual values are allowed "where a well considered and fair estimate of the likely market value of the item at the end of the lease would result in a lower value". In general, this means that the market value of the vehicle typically exceeds the residual, resulting in additional benefit to the employee, the difference between the market value and the residual. This benefit is not subject to FBT.
GST on the purchase price of a vehicle
In salary packaging advertising material, a benefit frequently claimed is that the employee "saves" the GST component of the purchase price of the vehicle. This claim plays on the lack of clarity of the salary packaging process - in fact, the employee is not buying the car at all. In a lease, the finance company (lessor) purchases the vehicle and pays the GST in the purchase. If the finance company is registered for GST, then they can then claim a credit for the GST.
The advertising implies that the cost to the employee of the lease is reduced by the amount of GST in the purchase price because of the credit claimed by the lessor. However, the way that GST works is that in every transaction, GST credits on costs are claimed by the business supplying the good or service, and then GST is included in the price paid by the purchaser to the business for the goods or services.
Since GST must be included in the rent and also in the residual by the lessor, this has the effect of increasing the total amount of GST to be paid in a lease compared to the original purchase, since the total of the rent and residual is a higher amount than the purchase price of the vehicle (to allow for costs and profits for the lessor), especially when GST exempt items such as stamp duty are bundled into the lease contract resulting in no GST to be claimed as a credit for that component of the purchase.