Guidelines as to the Unleased Tenant’s Parking Space Exemption
- These Guidelines are made by the Chief Commissioner of State Revenue with the approval of the Minister for Transport pursuant to Section 12(1)(b) of the Parking Space Levy Act 2009.
- Clause 7(3) of the Parking Space Levy Regulation 2009 provides an exemption for an unleased tenant’s parking space. These are Guidelines as to whether, in particular circumstances, a parking space is, or is not, to be exempted from the calculation of the parking space levy as an unleased tenant’s parking space.
- Clause 7(3) states that a parking space on leviable premises in a Category 1 or Category 2 area is an exempt parking space while it is an unleased tenant’s parking space.
- Clause 7(4)(b) defines an unleased tenant’s parking space as a parking space that is unavailable for use as a parking space except under a lease or licence under which a tenant of the premises in which it is located has exclusive use of it and no such lease or licence is in force.
- Accordingly, the definition of ‘unleased tenant’s parking space’ has two elements. To satisfy the definition, a parking space must be:
- unavailable for use as a parking space except under a lease or licence under which a tenant of the premises in which the parking space is located has exclusive use of it; and
- no such lease or licence is in force.
When does a tenant have exclusive use of a parking space under a lease or licence that is unavailable for use by anyone else?
- A parking space is considered to be a tenant’s parking space, if a tenant has exclusive use of the parking space and the spaces cannot be leased to anyone apart from a tenant.
- If a space is available for use by anyone apart from a tenant of the premises, the exemption will not be available for that space.
- The Chief Commissioner will consider the terms of any agreement or arrangement as to the use of a parking space in determining whether it is a tenant’s parking space and, in particular, will consider if:
- the space is set aside for exclusive use by the tenant
- the space cannot be leased to anyone else other than a tenant at the premises
- the rights conferred under any lease or licence
When is a tenant’s parking an unleased space?
- A parking space is considered to be an unleased space if it is not leased or let out to any tenant for any period during the year.
- The exemption for an unleased tenant’s parking space is calculated on a daily basis. Accordingly, an owner wishing to claim an exemption for unleased parking space must keep the following records for each day for which they wish to claim an exemption:
- the total number of tenant’s parking spaces
- the total number of unleased tenant’s parking spaces
- the total number of days the parking spaces were unleased
- occupancy/vacancy details from Property Manager
- evidence that attempts have been made to have the property leased (either privately or through a real estate agent)
- previous lease/licence agreements.
The records must be retained for a minimum of 5 years from the date an exemption is claimed in a return lodged with the Chief Commissioner.
Examples of where the exemption would apply
- A commercial building has ten levels of office space and 100 parking spaces. Due to council restrictions, the parking spaces can only be leased or licenced to tenants in the building. Only six levels of the building are leased and sixty of the parking spaces are licenced to tenants. An exemption can be claimed for the portion of the year that the forty parking spaces remain vacant.
Examples of where the exemption would not apply
- A commercial building has ten levels of office space and 100 parking spaces. The parking spaces are available for lease or licence to tenants and the general public. As all of the spaces are available for lease or licence to persons who are not tenants in the building, no exemption can be claimed under Clause 7(4)(b) for any of the 100 spaces.
- A commercial building has ten levels of office space and 100 parking spaces. All the parking spaces are leased to a car park operator. The operator licences the spaces to persons on a month to month basis. The operator has advised 50 of the car spaces remain unused for a year. As all of the spaces are available for lease or licence to persons who are not tenants in the building, no exemption can be claimed under Clause 7(4)(b) for any of the 100 spaces. Furthermore, as none of the spaces would be a ‘casual parking space’, an exemption under Clause 7(4)(a) would not be available for any of the 100 spaces. Refer to the Guidelines as to the Unused Casual Parking Space Exemption for further information.
Stephen Brady
Chief Commissioner of State Revenue