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PAYROLL TAX AMENDMENT BILL 2007
2007
The Legislative Assembly
for
Australian Capital
Territory
Payroll Tax Amendment Bill
2007
Explanatory Statement
Circulated by authority
of
Treasurer
Jon
Stanhope MLA
Payroll Tax Amendment Bill
2007
Summary
This Bill amends the Payroll Tax Act 1987 (the Payroll Tax Act) and
makes consequential amendments to the Taxation Administration Act 1999
(the Taxation Administration Act).
Background
In a National payroll tax harmonisation project, all States and Territories
agreed to make certain aspects of payroll tax administration (excluding rates
and thresholds) more consistent across jurisdictions. The Project aims to
reduce compliance costs for businesses that operate across State and Territory
borders. Following the States Only Ministerial Council Meeting held on 29 March
2007, a joint press release signed by all State and Territory Treasurers
indicated that these measures are to be in place by 1 July 2008.
Overview
Amendments to the Payroll Tax Act 1987
This Bill implements five measures where the ACT did not previously comply
with the agreed outcomes of the National Project, and is consistent in these
areas with the NSW and Victorian harmonised Payroll Tax Acts introduced on 1
July 2007.
Exemption for Wages Paid in the ACT for Services Performed in
Another Country.
The Bill adopts an exemption, which is new to the ACT, for wages paid in
the ACT for employees who work in another country for a continuous period of six
months or more.
Motor Vehicle and Accommodation Allowance Exemptions.
The Bill adopts exemption rates for motor vehicle allowances and
accommodation allowances linked with those set annually by the Australian
Taxation Office for income tax deduction purposes. The motor vehicle allowance
exemption will be linked to the ‘large car’ rate, and the value of
the accommodation allowance exemption will be linked to the ‘lowest salary
band/lowest capital city’ rate. Exemptions in the ACT for allowances were
previously dealt with administratively.
Fringe Benefits.
The Bill adopts a single gross up factor (Type 2) for the purposes of
calculating the amount to be taken as wages for payroll tax purposes, of
benefits that attract a Fringe Benefits Tax liability. Previously, the ACT used
both Type 1 and Type 2 factors
Grouping Provisions.
The Bill adopts the NSW/Victorian grouping provisions as a model, thus
tightening the previous ACT provisions. The provisions adopted are in relation
to commonly controlled companies, tracing provisions, Commissioner’s
discretion to exclude a member from a group where they operate independently, a
common test for inter-used employees, and a designated group employer to claim
the appropriate tax-free threshold for the entire group. The new grouping
provisions have been incorporated into the Payroll Tax Act rather than the
Taxation Administration Act.
The Commissioner’s discretion to exclude an employer from a payroll
tax group has been expanded to allow the exclusion of any member of the group,
except related corporations.
The adoption of a designated group employer is new to the ACT, and requires
grouped employers to nominate one employer (the designated group employer) to
obtain the benefit of the payroll tax-free threshold for the group. All other
members of the group pay payroll tax at the flat rate.
Employee Share
Acquisition Schemes.
Employee Share Acquisition Schemes already fall
into the payroll tax net in the ACT and capture all shares and options,
regardless of where the company is registered. From the commencement of this
Bill, shares and options will be regarded as being paid or payable in and
outside the ACT, based on whether the company is registered in or outside the
ACT.
Transitional provisions.
Transitional provisions ensure
that the Payroll Tax Act and the Taxation Administration Act, as in force before
the commencement of these amendments, will continue to apply to a liability
incurred up to the commencement of the amendments. This will apply even if the
liability is not discovered until after the commencement of the amendments.
This provision will expire 5 years after commencement.
Amendments to
the Taxation Administration Act 1999
This Bill includes the grouping provisions in the Payroll Tax Act, making
the Taxation Administration Act grouping provisions, and some related
provisions, redundant.
Financial Implications of this Bill
There may be a small overall negative impact on payroll tax revenue as a
result of increased exemptions for allowances, but this will be offset to some
extent by tighter grouping provisions. The benefits to taxpayers of adopting
these measures are likely to outweigh any such impact.
Details of the Payroll Tax Amendment Bill
2007
Clause 1 - Name of
Act
This Act is the Payroll Tax Amendment Act 2007.
Clause 2 – Commencement
This Act commences on a day fixed by the Minister by written notice.
Clause 3 – Legislation
amended
This Act amends the Payroll Tax Act 1987 and the Taxation
Administration Act 1999.
Clause 4
– Dictionary Section 1A, note 1
This clause substitutes a new example for a signpost
definition.
Clause 5 – New part and
division heading
Clause 5 inserts a new Part 1A, Important concepts, and Division
1A.1 Wages, after section 1B. This allows for a new structure to clearly
separate wages, benefits, allowances and grouping of employers into
divisions.
Clause 6 – New sections 2BA
and 2BB
Section 2BA Place where wages payable provides that wages
constituted by the grant of a share or option will be taken to be paid or
payable in the ACT if the share is a share in a company registered in the ACT or
any other body corporate incorporated under a Territory law. The note makes it
clear that if the wages are taken to be paid or payable outside the ACT, the
grant of a share or option may still be liable to payroll tax in the ACT (under
section 2D (1) of the Act) if the grant is made for services performed wholly or
mainly in the ACT.
Section 2BB Inclusion of wages paid by group employers provides
that a reference in the Bill to wages paid or payable by a member of a group
includes wages that would be taken to be paid or payable by a member of the
group if the member were the employer of the employee to whom the wages were
paid.
Clause 7 – Wages to which this
Act applies
Section 2D (1) (a) is substituted and wages to which this Act
applies are wages that are paid or payable by an employer for services
performed, and that are paid or payable in the ACT (except if the relevant
services are performed wholly in one other State or Territory) or paid or
payable outside the ACT for services performed wholly in the ACT.
Subparagraph (a) (ii) provides a new exemption and taxable wages do not
include wages paid or payable in respect of services which are performed wholly
in another country for a continuous period of more than 6 months. Such wages
are exempt from tax from the commencement of the period of overseas service.
Clauses 8 and 9 – Section 2D (1) (b)
and Section 2D (2) (a), (b) (i) and (c)
For consistency with the rest of the Act, these clauses omit references to
the words ‘or rendered’. So there is no doubt,
perform, in the Dictionary, is defined so as to include
‘render’.
Clause 10 – Section 3 is
substituted. Clause 10 substitutes new sections that deal separately with the
meaning and value of benefits and inserts a new division for allowances, and new
divisions and subdivisions dealing with grouping of employers.
Division
1A.2 Benefits
Section 3 Meaning of benefit - is
unchanged from the previous provision.
Section 3A Value of benefit inserts a new provision and 3A
(1) has a formula for calculating the value of a fringe benefit for payroll tax
purposes. This value is the taxable value of the fringe benefit grossed up
using the formula for "Type 2 benefits" specified in the Fringe Benefits Tax
Assessment Act 1986 of the Commonwealth. Previously fringe benefits were
grossed up using the "Type 1 benefits" formula or the "Type 2 benefits" formula
accordingly.
3A (2) and (3) specify the bases on which fringe benefits are to be
included in monthly returns for payroll tax purposes. An employer must include
the actual monthly value of the fringe benefits determined under paragraph (1)
unless the employer has made an election under section 3B, and that election is
still in force.
Section 3B Employer election for taxable value of benefits, permits
employers to elect to declare 1/12th of the ACT aggregate
fringe benefits amount (grossed up using the formula for "Type 2 benefits")
included in a preceding annual FBT return. This provides a method for
reconciling these monthly amounts at the end of the financial year with the
current year's FBT return. An election, once made, may only be terminated with
the approval of the Commissioner. The clause also specifies the basis on which
a final adjustment of payroll tax is to be effected by an employer who ceases to
be liable to payroll tax.
Division 1A.3 Allowances as wages - new heading
inserted.
Section 3C Wages to which this Act applies – exempt component of
motor vehicle allowances not included provides that wages do not include the
exempt component of a motor vehicle allowance, calculated in accordance with
this provision. An employer need only pay payroll tax on the amount of the
motor vehicle allowance that exceeds the exempt component. The exempt component
is a function of the number of business kilometres travelled during the
financial year and the exempt rate, being a rate determined by the Minister by
Notifiable Instrument, or if no such rate is determined, the rate prescribed
under the Income Tax Assessment Act 1997 of the Commonwealth.
The method for determining the number of business kilometres travelled is
determined in accordance with Schedule 2 of the Payroll Tax Act 1987,
Motor Vehicle Allowances. The commissioner may approve another method of
determining the number of business kilometres travelled, and if so, the employer
must use that method.
Section 3D Wages to which this Act applies – accommodation
allowances not included provides that wages only include an accommodation
allowance paid or payable to an employee for a night's absence from his or her
usual place of residence to the extent that it exceeds the exempt rate.
The exempt rate is determined by the Minister (by Notifiable Instrument) or
if no such rate is determined, the exempt rate is by reference to Australian
Taxation Office determinations in respect of reasonable daily travel allowance
expenses.
Division 1A.4 Grouping of employers - new heading
inserted.
Subdivision 1A.4.1 Interpretation - new heading
inserted.
Section 3E Definitions – div 1A-4 provides definitions of
associated person, business, entity,
group, private company and related
person for the purposes of this division.
Section 3F Grouping provisions to operate independently provides
that the fact that a person is not a member of a group constituted under one of
the grouping provisions does not prevent them from being a member of a group
constituted under any of the other grouping provisions.
Subdivision 1A.4.2 Business groups - new heading
inserted.
Section 3G Make up of groups ensures that when two or more groups
form part of a larger group, the two or more smaller groups are not considered
as groups in their own right.
Section 3H Groups of corporations provides that corporations
constitute a group if they are related bodies corporate within the meaning of
the Corporations Act. The Commissioner has no discretion to exclude such
corporations from a group constituted under this provision.
Section 3I Groups arising from the use of common employees provides
for groups arising from the inter-use of employees. Where one or more employees
of an employer
§ perform
duties for one or more businesses carried on by the employer and one or more
other persons; or
§ are
employed solely or mainly to perform duties for one or more businesses carried
on by one or more other persons; or
§ perform
duties for one or more businesses carried on by one or more other persons, being
duties performed in connection with or in fulfilment of the employer's
obligation under an agreement, arrangement or undertaking for the provision of
services to any of those persons—
the employer and each of those other persons constitutes a group.
Section 3J Groups of commonly controlled businesses provides for
groups arising through common control of 2 businesses. Under this clause,
a group exists where a person, or a set of persons, has a controlling interest
in each of 2 businesses. The entities carrying on the businesses are grouped.
The rules for determining whether a person (or set of persons) has a
controlling interest in a business vary depending upon the type of entity
conducting the business (eg a corporation, partnership or trust), and generally
relate to the level of ownership or control of the business, or of the entity
conducting the business. The level of ownership or control required for an
interest to be a controlling interest is "more than 50%", and there is no change
from the provisions in Division 11.1 of the Taxation Administration Act 1999
(omitted by Schedule 1 of this Bill).
In some circumstances, a person or set of persons will be taken to have a
controlling interest in a business on the basis that a related person or entity
has a controlling interest in that business. More specifically—
§ if a
corporation has a controlling interest in a business, any related body corporate
of the corporation (within the meaning of the Corporations Act) will also be
taken to have a controlling interest in the business;
§ if a
person or set of persons has a controlling interest in a business, and the
person or set of persons who carry on that business has a controlling interest
in another business, the first-mentioned person or set of persons is taken to
have a controlling interest in the second-mentioned business;
§ if a
person or set of persons has a controlling interest in the business of a trust,
and the trustee(s) of the trust has a controlling interest in the business of
another entity (being a trust, corporation or partnership), the person or set of
persons is taken to have a controlling interest in the business of that other
entity
Section 3K Groups arising from tracing interests in corporations
provides for groups arising from the tracing of interests in a corporation.
An entity (being a person or 2 or more associated persons) and a corporation
form part of a group if the entity has a controlling interest in the
corporation. Such a controlling interest exists if the entity has a direct
interest, an indirect interest, or an aggregate interest in the corporation, and
the value of that interest exceeds 50%. Subdivision 1A.4.3 applies in making
this determination.
Definitions of associated person, related
person, entity and private company are also
provided for this section. The Legislation Act 2001 section 169 provides
definitions of domestic partner and domestic
relationship.
Section 3L Smaller groups included in larger groups provides that,
where any person is a member of 2 or more groups, those groups will form a
single group. Under section 3G, the smaller groups which have been subsumed
cease to exist as groups for the purposes of the legislation.
Subdivision 1A.4.3 Business groups – tracing of interests -
new heading inserted. This Subdivision provides that an entity's interest in a
corporation for the purpose of determining whether the entity has a controlling
interest, may be a direct or an indirect interest. Indirect interests may
be traced through interposed entities, and may be aggregated with direct
interests for the purpose of determining whether an entity has a controlling
interest. An entity is defined in section 3K and may be a person or 2 or more
associated persons.
Section 3M Application – sdiv 1A.4.3 applies this Subdivision
for the purposes of grouping an entity with a corporation under section
3K.
Section 3N Direct interest provides that an entity has a direct
interest in a corporation if the entity can directly or indirectly exercise,
control the exercise, or substantially influence the exercise of voting power
attached to voting shares in the corporation.
It also provides that the percentage interest of voting power which an
entity controls is the percentage of the total voting power which the entity can
exercise, control the exercise of, or substantially influence the exercise
of.
Section 3O Indirect interest provides that an entity has an
indirect interest in a corporation (called the indirectly controlled
corporation) if the entity is linked to that corporation by a direct interest in
another corporation (called the directly controlled corporation) that has a
direct and/or an indirect interest in the indirectly controlled corporation.
It also provides that the value of an indirect interest in an indirectly
controlled corporation is determined by multiplying the value of the entity's
direct interest in the directly controlled corporation by the value of the
directly controlled corporation's interest in the indirectly controlled
corporation. Examples are provided to illustrate how indirect interests may be
worked out and how an entity may have more than 1 indirect interest in a
corporation.
Section 3P Aggregation of interests provides that an entity has an
aggregate interest in a corporation when it has either a direct interest and one
or more indirect interests, or 2 or more indirect interests. It also provides
that the value of an entity's aggregate interest is the sum of the entity's
direct and indirect interests in that corporation. And provides examples to
illustrate the aggregation of interests.
Subdivision 1A.4.4 Groups - miscellaneous - new heading inserted.
Section 3Q Exclusion from groups provides the Commissioner with a
discretion to exclude a member from a group if satisfied that the business
conducted by that member is independent of, and not connected with, the business
conducted by any other member of the group. In considering the application
of this discretion, the Commissioner will have regard to the nature and degree
of ownership and control of the businesses, the nature of the businesses, and
any other relevant matters. The discretion is not available for corporations
that are related bodies corporate under section 50 of the Corporations
Act.
The Commissioner’s determination is a Notifiable Instrument and it
may commence on or before its notification day to enable persons to be ungrouped
from an appropriate date, even if that date is prior to the determination. Such
a determination may be revoked if the circumstances do not apply to the person.
Section 3R Designated group employers provides that the members of
a group or the Commissioner may designate one member of the group to be the
designated group employer for the group. The designated group employer is the
member entitled to claim the benefit of the threshold on behalf of the group
when calculating its payroll tax liability.
Clauses 11 and 12 – Agreement etc to
reduce or avoid liability to payroll tax and Section 5 (1) omits the words
‘or renders’ and ‘or rendering’ for consistency –
see Clause 8 and 9.
Clause 13 – New division 2.1 heading
-
Division 2.1 Liability to taxation – general concepts.
This division is inserted before section 6.
Clause 14 – Payroll tax
liability
New section 6 (3) inserts a new provision to indicate
that payroll tax is calculated under division 2.3 and division 2.4.
Clause 15 - Registration of
employers
Section 7 (1) is substituted to provide that an employer
who pays wages in the ACT must register for payroll tax if their total wages in
a month exceeds the amount determined for this section under the Taxation
Administration Act section 139.
If the employer is a member of a group, the total wages paid or payable by
all members of the group together in a month determines whether the employer
should register for payroll tax. If a registered employer's wages fall below
the weekly exemption level during any one month, the Commissioner may cancel
that employer's registration.
Clause 16 – New section 8
Section 8 Joint and several liability of group members provides
for the joint and several liability of every member of a group where any one of
them fails to pay an amount required under the Act. The Commissioner is
entitled to recover the whole amount payable from any member of the group.
These provisions incorporate existing provisions in the Payroll Tax Act (at
section 11A) and also those in the Taxation Administration Act (at section 50
and Dictionary definition of “tax”).
Clause 17 – New division 2.2
heading.
Division 2.2 Liability to taxation – exemption from
tax is inserted before section 9.
Clause 18 - Exemption from tax
Section 9 (3) (b) omits ‘renders’ and substitutes
‘provides’ for consistency in use of terms.
Clause 19 – New division
2.3.
Division 2.3 Liability to taxation – calculation of
monthly payroll tax inserted before section 10 contains the monthly payroll
tax calculations.
Subdivision 2.3.1 Employer not member of group
Section 9C
Application - sdiv 2.3.1 – sets out the monthly payroll tax
calculations for employers who are not members of a group.
Section 9D Employer not member of group – amount of tax payable
each month provides that the monthly amount of payroll tax payable by a
non-group employer is the total ACT taxable wages paid or payable by the
employer during the month, less a deductible amount (calculated under section 9E
or 9F as appropriate), and multiplied by the rate of tax determined under the
Taxation Administration Act section 139 for this section. The deductible
amount represents the payroll tax monthly threshold, or part thereof in
circumstances of an employer who pays wages in more than one jurisdiction.
Where the deductible amount exceeds the total ACT taxable wages paid or payable,
the employer is not required to pay payroll tax in respect of that month. Any
overpayment or underpayment of tax under this section is accounted for in the
payroll tax annual adjustment contained in Part 2A of this Bill.
Section 9E Employer not member of group – deductible amount for
employer not paying interstate wages. For an employer who is only liable
to pay wages during the relevant month in the ACT, the deductible amount
referred to in section 9D is the amount determined under the Taxation
Administration Act section 139 for section 7 of the Payroll Tax Act.
Section 9F Employer not member of group – deductible amount for
employer who pays taxable and interstate wages. Where an employer is liable
to pay wages during the relevant month in the ACT and in at least one other
Australian jurisdiction, the deductible amount referred to in section 9D is
determined in one of two ways. The first is by notice given by the employer to
the Commissioner, claiming an ongoing monthly deduction which is calculated in
the manner set out in section 9F (2). The second is a Commissioner's
determination under section 9F (6), notified to the employer, stating the
ongoing monthly deduction applicable to that employer. Where the Commissioner
determines a monthly deduction for an employer under this section, it takes
precedence over any deduction notified by the employer to the
Commissioner.
Subdivision 2.3.2 Group with designated group employer
Section 9G Application - sdiv 2.3.2 –sets out the monthly
payroll tax calculation for employers who are members of a group which has a
designated group employer.
Section 9H Group with designated group employer – amount of tax
payable each month if approval in force. If the Commissioner has approved a
designated group employer to lodge a joint return under section 16 (4), the
monthly amount of payroll tax payable by the designated group employer is the
total ACT taxable wages paid or payable during the month by each of the group
members covered by the return, less a deductible amount (calculated under
section 9J or 9K as appropriate), and multiplied by the rate of tax determined
under the Taxation Administration Act section 139 for this section.
Each group member who is not covered by the return is also liable for a monthly
amount of payroll tax, calculated by multiplying the group member's total ACT
taxable wages paid or payable during the month by the rate of tax determined
under the Taxation Administration Act section 139 for this section.
Section 9I Group with designated group employer – amount of tax
payable each month if approval not in force. If the Commissioner has not
approved a designated group employer to lodge a joint return under section 16
(4), the designated group employer and each of the other group members are
liable to pay monthly payroll tax separately on their respective ACT taxable
wages. Where this happens, only the designated group employer gets the benefit
of the deductible amount (calculated under section 9J or 9K as
appropriate).
Section 9J Group with designated group employer – deductible
amount for groups not paying interstate wages. For a group in which each
member is only liable to pay wages during the relevant month in the ACT, the
deductible amount for the month is the amount determined under the Taxation
Administration Act section 139 for section 7 of the Payroll Tax
Act.
Section 9K Group with designated group employer – deductible
amount for groups paying taxable and interstate wages. Where at
least one group member is liable to pay wages during the relevant month
in the ACT and in at least one other Australian jurisdiction, the deductible
amount referred to in section 9H is determined in one of two ways. The first is
by notice given by the designated group employer to the Commissioner, claiming
an ongoing monthly deduction for the group, which is calculated in the manner
set out in section 9K (2). The second is a Commissioner's determination under
section 9K (6), notified to the designated group employer, stating the ongoing
monthly deduction for the group. Where the Commissioner determines a monthly
deduction for a group under this clause, it takes precedence over any deduction
notified by the designated group employer to the Commissioner.
Subdivision 2.3.3 Group with no designated group
employer
Section 9L Application - sdiv 2.3.3 sets out the monthly
payroll tax calculation for employers who are members of a group which does not
have a designated group employer.
Section 9M Group with no designated group employer – amount of
tax payable each month provides that the monthly amount of payroll tax
payable by a group employer (where there is no designated group employer) is the
total ACT taxable wages paid or payable by the employer during the month
multiplied by the rate of tax determined under the Taxation Administration Act
section 139 for this section.
Clause 20 - Sections 10 to 14 –
are substituted.
Division 2.4 Liability to taxation – calculation of payroll tax
for financial year
A note for division 2.4 states that this division may
apply to a period other than a financial year or a month (see section 17 (4)
(b)). When the Commissioner approves a return period other than a month, the
tax payable is calculated using the formulae in division 2.4, adapted as stated
in section 17 (4) (b).
Section 10 Amount of tax payable – employer not a member of a
group.
Section 10 (1) provides that this section only applies to an
employer who is not a member of a group and sets out the annual adjustment
calculation of payroll tax for non-group employers. The annual adjustment gives
employers the opportunity to review their tax paid for the financial year and
make any necessary adjustments to correct overpayments or underpayments made
during that year.
Section 10 (2) provides that an employer who is not part of a group
is not liable to pay payroll tax in a financial year if the total ACT and other
Australian taxable wages paid or payable by the employer is at or below the
employer's threshold amount. This amount is the maximum threshold, adjusted by
the ratio of the number of days in the financial year in which the employer was
liable to pay ACT or other Australian taxable wages, to the total number of days
in that year.
Section 10 (3)
provides the formula for calculating the payroll tax of an employer who is not
part of a group and whose total ACT and other Australian taxable wages paid or
payable during a financial year exceeds the employer's threshold amount. The
payroll tax payable is the ACT taxable wages of the employer, less the
applicable deduction, multiplied by the rate of tax determined for this section
under Taxation Administration Act section 139.
The applicable deduction is the maximum threshold, adjusted by the ratio of
the employer's ACT taxable wages to its total Australian taxable wages, and also
by the ratio of the number of days in the financial year in which the employer
was liable to pay ACT or other Australian taxable wages, to the total number of
days in that year.
Section 10 (4) defines the variables which are used in the annual
adjustment calculations in subsections (3) and (4).
Section 11 Amounts of tax payable – group with a designated group
employer.
Section 11 (1) provides that this section only applies
to an employer who is a member of a group for which there is a designated group
employer and this section sets out the annual adjustment calculation of payroll
tax for employers who are part of such a group.
Section 11 (2) provides that none of the members of a group are
liable to pay payroll tax in a financial year if the total ACT and other
Australian taxable wages paid or payable by the group during that year is at or
below the group threshold amount. This amount is the maximum threshold,
adjusted by the ratio of the number of days in the financial year in which at
least one group member was liable to pay ACT or other Australian taxable wages,
to the total number of days in that year.
Section 11 (3) provides that subsections (4) and (5) contain the
formulas for calculating the payroll tax of a designated group employer and each
other member of a group, where the total ACT and other Australian taxable wages
paid or payable by the group during a financial year exceeds the group threshold
amount.
Section 11 (4) provides that the payroll tax payable by the
designated group employer is the ACT taxable wages of the group, less the
applicable deduction, multiplied by the rate of tax determined for this section
under Taxation Administration Act section 139.
The applicable deduction is the maximum threshold, adjusted by the ratio of
the group's ACT taxable wages to its total Australian taxable wages, and also by
the ratio of the number of days in the financial year in which at least one
group member was liable to pay ACT or other Australian taxable wages, to the
total number of days in that year.
Section 11 (5) provides that the payroll tax payable by a member of
a group other than the designated group employer is the taxable ACT wages of the
group member multiplied by the rate of tax determined for this section under
Taxation Administration Act section 139.
Section 11 (6) defines the variables which are used in the annual
adjustment calculations in subsections (2), (4) and (5).
Section 12 Amounts of tax payable – group with no designated
group employer.
Section 12 (1) provides that this section only
applies to an employer who is a member of a group for which there is no
designated group employer. This section sets out the annual adjustment
calculation of payroll tax for employers who are part of such a group.
Section 12 (2) provides that the payroll tax payable by a member of
a group (for which there is no designated group employer) is the ACT taxable
wages of the group member multiplied by the rate of tax determined for this
section under Taxation Administration Act section 139.
Section 12 (3) defines the variables which used in the annual
adjustment calculation in this section.
Division 2.5 Adjustments of tax. This division provides for an
annual adjustment of payroll tax, which gives employers the opportunity to
review their tax paid for a financial year and make any necessary adjustments to
correct overpayments or underpayments made during that year. Specific rules
apply to an employer who changes from being a group employer to a non-group
employer (or vice versa) during a financial year, to an employer who ceases to
pay or be liable to pay wages during a financial year, and to an employer whose
wages fluctuate with different periods of the year by reason of the nature of
the employer's trade or business.
Section 13 Definitions – div 2.5 defines terms which are used
in the division.
Section 14 Determination of correct amount of payroll tax provides
that this division applies to both group and non-group employers. Where an
employer is a group employer for parts of a financial year, and a non-group
employer for other parts of the same financial year, separate adjustments are to
be made in respect of any period as a group employer, and any period as a
non-group employer.
Section 15 Annual adjustment of payroll tax provides for an annual
adjustment of payroll tax at the end of each financial year in accordance with
the calculations in sections 10, 11 and 12. Where an employer has paid too much
tax throughout a financial year, the employer may apply for a refund from the
Commissioner. Conversely, where an employer has not paid enough tax throughout
a financial year, the employer must make up the difference in their annual
return.
Section 15A Adjustment of payroll tax if employer changes
circumstances requires an employer to make an adjustment of payroll tax if
they change their circumstances at any time during a financial year, meaning
that they cease to pay or be liable to pay wages, become a member of a group, or
cease to be a member of a group. The adjustment is made at the time that the
employer's circumstances change, and relates to the period commencing from the
start of the financial year (or the last change of circumstances, whichever is
more recent) and ending with the change of circumstances. The adjustment
requires an employer to compare their monthly returns with their actual
liability for the period (using the annual payroll tax calculations in sections
10, 11 and 12 pro-rated for the number of days in the period). The employer is
then required to make up any tax shortfall to the Commissioner. Any payments
made under this clause are taken into account in the employer's annual
adjustment calculation at the end of the financial year.
Section 15B Special provision if wages fluctuate ensures that an
employer who only pays or is liable to pay wages for part of a financial year
receives the benefit of the payroll tax threshold for the whole year if the
Commissioner determines that, by reason of the nature of the employer's trade or
business, the wages paid or payable by the employer fluctuate with different
periods of the year. If the employer only conducts that trade or business in
Australia for part of the financial year, they can still seek a determination
under this clause, and if successful, will receive the benefit of the payroll
tax threshold for that part of the financial year. This is the current
administrative practice in the ACT, now formalised in legislation.
Clause 21 - Payroll tax
returns
Section 16 (2)(c) requires any tax that is payable in
relation to the return under division 2.3 is to be paid by the employer with the
lodgement of the monthly return.
Clause 22 - New section 16 (4) and (5)
provides that designated group employers may, with the Commissioner's
approval, lodge joint returns on behalf of specified members of the group. Each
employer covered by the return is taken to have complied with section
16.
Clause 23 - Returns – variation of
time for lodging
Section 17 (4) (b) requires any tax that is
payable in relation to each return lodged in accordance with a notice issued by
the Commissioner under section 17 to be paid by the employer when the return is
lodged. The amount is calculated in accordance with division 2.4 as if a
reference to a financial year (except for a reference in DFY) is a reference to
the period agreed by the Commissioner in the notice, and with any other
necessary changes, or those prescribed by regulation (if any).
Clause 24 – Review of
decisions
New section 19 (aa) and (bb) inserts, before section 19
(a), provisions to allow the review of the commissioner’s decision to
refuse to determine that a person is not a member of a group, and to the
revocation of a determination that a person is not a member of a group. This
provides the same rights as previously held under the Taxation Administration
Act (see Schedule 1 of this Bill - omitted Schedule 1, section 1.2 (k) of the
Taxation Administration Act).
Clause 25 – New section 100
inserted after section 21.
Section 100 Transitional provides that the
Payroll Tax Act 1987 and the Taxation Administration Act 1999 as
in force before the commencement of the Payroll Tax Amendment Act 2007
will continue to apply to any payroll tax liability incurred before the
amendment, and anything done to satisfy that liability. This applies even if a
liability is not discovered until after the amendment.
Clause 26 – New schedule 2
– new heading is inserted.
Schedule 2 Motor vehicle allowances
(applies to section 3C (5)) and deals with an employer's obligation to keep
certain records where the employer claims an exemption under this Schedule for
any part of a motor vehicle allowance paid or payable by the employer.
Section 2.1 Meaning of business journey – sch 2
defines business journey for the purposes of this
Schedule.
Section 2.2 Continuous recording method provides for certain
information to be recorded by an employer if the employer elects to use the
continuous recording method for calculating the number of business kilometres
travelled during a financial year.
Section 2.3 Averaging method provides for certain information to be
recorded by an employer if the employer elects to use the averaging method for
calculating the number of business kilometres travelled during a financial year.
The averaging method allows employers to record the percentage of business
kilometres travelled to total kilometres travelled in the relevant 12-week
period, and then use this percentage to calculate business kilometres travelled
throughout the whole financial year, as well as the next 4 financial
years.
Section 2.4 Meaning of relevant 12-week period stipulates that the
relevant 12-week period for the averaging method of recording business
kilometres travelled is a continuous period of at least 12 weeks. If the motor
vehicle is maintained for less than 12 weeks, then the period is the entire
period the motor vehicle was maintained. The 12-week period may overlap into
the start or end of a financial year, so long as it includes part of the
year.
Section 2.5 Replacing one motor vehicle with another motor vehicle
provides that an employer, which has elected to use the averaging method, may
replace one motor vehicle with another motor vehicle. An employer need not
repeat for the replacement vehicle the steps already taken for the original
motor vehicle.
Section 2.6 Changing method of recording provides for an employer
to change from using the averaging method to the continuing recording method, or
vice versa, from the beginning of a financial year.
Clause 27 - Dictionary, note 2 inserts
Corporations Act, domestic partner and domestic relationship.
Clauses - 28, 29, 30, 31, 32, 33, 34 and 35
insert new definitions and omit redundant definitions.
Schedule 1 Taxation Administration Act 1999
Clause 1.1 Section 2, note 1 substitutes a new signpost definition
as ‘group’ has been omitted from the Act.
Clause 1.2 Section 6 (3) (b) has been omitted as this Act no longer
deals with the tax liability of groups of corporations. This Bill inserts
grouping provisions into the Payroll Tax Act 1987.
Clause 1.3 Division 11.1 has been omitted as this Act no longer
deals with the tax liability of groups of corporations. This Bill inserts
grouping provisions into the Payroll Tax Act 1987.
Clause 1.4 Schedule 1, section 1.2 (k) has been omitted as the
review rights are no longer required in this Act. This Bill inserts equivalent
review rights into the Payroll Tax Act 1987.
Clause 1.5 Dictionary, definitions of group and primary
group have been omitted as this Act no longer deals with the tax
liability of groups of corporations from the commencement of this
Bill.
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