New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Payroll Tax Rebate Scheme (Jobs
Action Plan) Bill 2011
No , 2011
A Bill for
An Act to establish a payroll tax rebate scheme to assist in the creation of new jobs.
Clause 1 Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Part 1 Preliminary
The Legislature of New South Wales enacts: 1
Part 1 Preliminary 2
1 Name of Act 3
This Act is the Payroll Tax Rebate Scheme (Jobs Action Plan) Act 2011. 4
2 Commencement 5
This Act commences on the date of assent to this Act. 6
3 Object of Act 7
(1) The object of this Act is to assist in the creation of new jobs by 8
establishing a payroll tax rebate scheme that gives employers an 9
incentive to increase the number of their full time equivalent employees 10
for a period of at least 2 years. 11
(2) It is the intention of Parliament that the rebate scheme assist in the 12
creation of 100,000 new jobs, with 60% of those jobs being in the 13
metropolitan area and 40% of those jobs being in the non-metropolitan 14
area. 15
(3) The Minister is to exercise his or her functions under this Act having 16
regard to this section. 17
4 Definitions 18
(1) In this Act: 19
administration of this Act includes the execution and enforcement of 20
this Act. 21
authorised officer--see section 45. 22
claimant for a rebate includes a former claimant for a rebate. 23
eligible employment--see section 7. 24
exercise a function includes perform a duty. 25
full time employee means an employee whose standard or average 26
hours of work per week is 35 hours or more. 27
full time equivalent employee--see section 9. 28
function includes a power, authority or duty. 29
maximum vacancy period--see section 10. 30
Page 2
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011 Clause 4
Preliminary Part 1
metropolitan area means the following parts of the State: 1
(a) the Sydney metropolitan area--being the area constituted by the 2
following local government areas: 3
Ashfield, Auburn, Bankstown, Baulkham Hills, Blacktown, Blue 4
Mountains, Botany Bay, Burwood, Camden, Campbelltown, 5
Canada Bay, Canterbury, Fairfield, Gosford, Hawkesbury, 6
Holroyd, Hornsby, Hunters Hill, Hurstville, Kogarah, 7
Ku-ring-gai, Lane Cove, Leichhardt, Liverpool, Manly, 8
Marrickville, Mosman, North Sydney, Parramatta, Penrith, 9
Pittwater, Randwick, Rockdale, Ryde, Strathfield, Sutherland 10
Shire, Sydney, Warringah, Waverley, Willoughby, Wollondilly, 11
Woollahra, Wyong, 12
(b) the Newcastle local government area, 13
(c) the Wollongong local government area. 14
minimum employment period--see section 10. 15
new job--see section 8. 16
non-metropolitan area means that part of the State that does not fall 17
within the metropolitan area. 18
part time employee means an employee who is not a full time employee. 19
premises includes any building, structure, vehicle, vessel or aircraft and 20
any place, whether built on or not. 21
rebate means a rebate under this Act. 22
rebate criteria--see section 11. 23
rebate scheme means the rebate scheme established by this Act. 24
registered claimant--see section 19. 25
relevant third party--see section 31. 26
scheme closure date--see section 13. 27
(2) Other expressions used in this Act have the same meaning as they have 28
in the Payroll Tax Act 2007. 29
(3) For the purposes of this Act, the anniversary of employment 30
commencing on 29 February in a leap year is taken to be 1 March in a 31
year that is not a leap year. 32
(4) Notes included in this Act do not form part of this Act. 33
Page 3
Clause 5 Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Part 2 Rebate scheme
Part 2 Rebate scheme 1
5 Rebate scheme 2
There is established by this Act a rebate scheme for payroll tax paid or 3
payable by employers who employ people in new jobs on or after 1 July 4
2011. 5
6 Entitlement to rebate 6
(1) An employer is entitled to a rebate under the rebate scheme in respect 7
of the employment of a person if the employment is eligible 8
employment. 9
(2) The entitlement to a rebate is subject to the other provisions of this Act. 10
7 Eligible employment 11
Employment is eligible employment if: 12
(a) a person is employed (as a full time employee or part time 13
employee) in a position that is a new job, and 14
(b) the employment commences on or after 1 July 2011, and 15
(c) the employment is maintained for the minimum employment 16
period, and 17
(d) the services of the employee are performed wholly or mainly in 18
New South Wales, and 19
(e) the employment satisfies any further eligibility criteria set out in 20
the rebate criteria, and 21
(f) the employment is not excluded from the rebate scheme. 22
8 What is a new job 23
(1) A position is a new job if the employment of a person in that position 24
results in a sustained increase in the employer's full time equivalent 25
employees. 26
(2) The employment of a person results in a sustained increase in an 27
employer's full time equivalent employees if the number of full time 28
equivalent employees of the employer on both the first and second 29
anniversary of the date the eligible employment is claimed to 30
commence is higher than the number of full time equivalent employees 31
of the employer on that commencement date. 32
(3) A rebate may be paid on a claim before a determination can be made as 33
to whether the employment has resulted in a sustained increase in an 34
employer's full time equivalent employees. 35
Page 4
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011 Clause 9
Rebate scheme Part 2
(4) However, it is a condition of the payment of a rebate in respect of any 1
employment that the employment results in a sustained increase in the 2
employer's full time equivalent employees, subject to subsection (5). 3
(5) The Chief Commissioner may pay a rebate claimed in respect of a year 4
of employment even if there is not a sustained increase in an employer's 5
full time equivalent employees if satisfied that the increase did not 6
occur because of circumstances beyond the employer's control. 7
(6) The Chief Commissioner may impose conditions on the payment of the 8
rebate in such a case. 9
(7) In such a case, this Act applies as if the rebate had been paid in respect 10
of the employment of a person in a new job. 11
(8) A claimant is required to repay an amount paid by way of rebate if a 12
condition imposed by or under this section is contravened. 13
9 Calculation of number of full time equivalent employees 14
(1) The number of full time equivalent employees of an employer on a date 15
is to be calculated as follows: 16
F+A/B
where: 17
F is the number of full time employees of the employer on the relevant 18
date. 19
A is the total number of hours worked in the employer's preceding pay 20
period by all part time employees of the employer employed on the 21
relevant date. 22
B is the average number of hours worked in the employer's preceding 23
pay period by all full time employees of the employer employed on the 24
relevant date. 25
(2) To calculate the number of full time equivalent employees of an 26
employer on the date eligible employment is claimed to have 27
commenced, in connection with a claim for a rebate for that 28
employment, the employee in respect of whom the rebate is claimed and 29
the hours worked by that employee are to be disregarded. 30
(3) To calculate the average number of hours worked by full time 31
employees of an employer, overtime is to be excluded. 32
(4) In this section, the preceding pay period is the last pay period to end on 33
or before the date for which the calculation is being made. 34
Page 5
Clause 10 Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Part 2 Rebate scheme
10 Minimum employment period 1
(1) The minimum employment period is a period of 2 years starting on the 2
date the eligible employment is claimed to commence. 3
(2) Employment is maintained for the minimum employment period if 4
during the minimum employment period there is always a person 5
employed in the position in respect of which the rebate is claimed. 6
(3) For the purpose of determining whether employment is maintained for 7
the minimum employment period, a vacancy in a position is to be 8
disregarded if the number of days vacant does not exceed the maximum 9
vacancy period. 10
(4) The maximum vacancy period is a total of 30 days in each year of 11
employment in respect of which a rebate is claimed. 12
(5) A rebate may be paid on a claim before a determination can be made as 13
to whether the employment has been maintained for the minimum 14
employment period. 15
(6) However, it is a condition of the payment of a rebate in respect of 16
employment that the employment is maintained for the minimum 17
employment period, subject to subsection (7). 18
(7) The Chief Commissioner may pay a rebate in respect of a year of 19
employment even if there is a vacancy in the position that exceeds the 20
maximum vacancy period if satisfied that the length of the vacancy 21
concerned is due to circumstances beyond the employer's control. 22
(8) The Chief Commissioner may impose conditions on the payment of the 23
rebate in such a case. 24
(9) A claimant is required to repay an amount paid by way of rebate if a 25
condition imposed by or under this section is contravened. 26
11 Rebate criteria 27
(1) The Minister may, by order published on the NSW legislation website, 28
determine further criteria for the payment of rebates under this Act (the 29
rebate criteria). 30
Note. Section 43 of the Interpretation Act 1987 provides that a power to make 31
an order includes a power to amend or repeal any order made in exercise of that 32
power. 33
(2) Without limiting subsection (1), the rebate criteria may provide for: 34
(a) further criteria for eligibility for a rebate, and 35
(b) any other matter that is required or permitted to be dealt with by 36
the rebate criteria under this Act. 37
(3) The rebate criteria may confer functions on the Chief Commissioner. 38
Page 6
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011 Clause 12
Rebate scheme Part 2
(4) The rebate criteria must not be inconsistent with this Act or the 1
regulations. 2
(5) An amendment to the rebate criteria may, if the amendment so provides, 3
extend to employment that commenced before the date of publication of 4
the amendment on the NSW legislation website. 5
(6) However, any such amendment does not affect an employer's eligibility 6
for a rebate in respect of a year of employment that started before the 7
date of publication of the amendment, except by agreement between the 8
Chief Commissioner and the employer concerned. 9
(7) Subsection (6) does not apply in respect of an amendment to the rebate 10
criteria to the extent that it appoints a scheme closure date. 11
12 Excluded employment 12
(1) The employment of a person by an employer is excluded from the rebate 13
scheme if: 14
(a) the person was employed by the employer at any time within the 15
period of 12 months before it is claimed the eligible employment, 16
or the employment of the person in the position concerned, 17
commenced, or 18
(b) the employer (the current employer) is a member of a group 19
(within the meaning of Part 5 of the Payroll Tax Act 2007) and 20
the person was employed by another member of that group within 21
12 months before employment with the current employer 22
commenced, or 23
(c) the person's employment with the employer is a continuation of 24
employment with another employer, or 25
(d) any wages paid or payable by the employer to the person are not 26
taxable wages (within the meaning of the Payroll Tax Act 2007), 27
or 28
(e) any wages paid or payable by the employer to the person are 29
exempt wages (within the meaning of the Payroll Tax Act 2007), 30
or 31
(f) the employer is entitled to a rebate of payroll tax paid in respect 32
of any wages paid or payable to the person under the Payroll Tax 33
Act 2007, or 34
(g) a rebate, subsidy, or other assistance is payable to the employer 35
in respect of the employment of the person by the State, or 36
(h) the employer is taken to be the employer of the person under 37
Division 7 of Part 3 of the Payroll Tax Act 2007 (which relates to 38
contractors), or 39
Page 7
Clause 13 Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Part 2 Rebate scheme
(i) the employer is taken to be the employer of the person under 1
Division 8 of Part 3 of the Payroll Tax Act 2007 (which relates to 2
employment agents), or 3
(j) the employer is the Crown in right of New South Wales or in any 4
of its other capacities or a body representing the Crown in right 5
of New South Wales or in any of its other capacities, or 6
(k) the employer is a public, local or municipal body or authority 7
constituted under the law of the Commonwealth or of a State or 8
Territory. 9
(2) A person's employment with an employer (the new employer) is a 10
continuation of employment with another employer (the previous 11
employer) if: 12
(a) the person was, within 12 months before the date on which the 13
person commenced employment with the new employer, 14
employed by the previous employer in a business or undertaking, 15
and 16
(b) that business or undertaking has been the subject of a merger with 17
the business or undertaking of the new employer or has been 18
taken over or otherwise acquired by the new employer. 19
(3) To avoid doubt, this section applies to the employment of any person in 20
the position for which the rebate is claimed during the minimum 21
employment period. 22
(4) Accordingly, if any person employed in the position during the 23
minimum employment period is a person whose employment is 24
excluded from the rebate scheme, the employment is not (and is taken 25
never to have been) eligible employment. 26
(5) This section is subject to any exceptions provided for by the rebate 27
criteria. 28
(6) The rebate criteria may specify other circumstances in which the 29
employment of a person is excluded from the rebate scheme. 30
13 Closure of rebate scheme 31
(1) The rebate criteria may appoint a date as a scheme closure date. 32
(2) A date may be appointed as a scheme closure date for the metropolitan 33
area or the non-metropolitan area, or both. 34
(3) For the purposes of this Act, the scheme closure date for an area is: 35
(a) the date appointed by the rebate criteria as the scheme closure 36
date for the area, or 37
(b) if no date is appointed by the rebate criteria as the scheme closure 38
date for the area, 30 June 2013. 39
Page 8
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011 Clause 13
Rebate scheme Part 2
(4) An order appointing a scheme closure date must be published on the 1
NSW legislation website no less than 30 days before the scheme closure 2
date so appointed. 3
Note. A person cannot apply to be registered as a rebate claimant in respect of 4
the employment of a person after the scheme closure date for the area in which 5
the person is employed. 6
Page 9
Clause 14 Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Part 3 Calculation of rebate
Part 3 Calculation of rebate 1
14 Periods in respect of which rebate can be claimed 2
(1) A rebate in respect of eligible employment can be claimed for the 3
following periods only: 4
(a) the first year of employment, 5
(b) the second year of employment. 6
(2) The first year of employment is the period commencing on the date the 7
eligible employment is claimed to commence and ending on the first 8
anniversary of that date. 9
(3) The second year of employment is the period commencing the day after 10
that first anniversary and ending on the second anniversary of the date 11
the eligible employment is claimed to commence. 12
Note. A rebate cannot be claimed until the end of the year of employment 13
concerned. 14
15 Amount of rebate 15
(1) The rebate payable for a year of employment is: 16
(a) $2,000 for a full time employee, or 17
(b) the relevant proportion for a part time employee. 18
(2) The relevant proportion is the amount calculated as follows: 19
$2,000 × C / D
where: 20
C is the number of hours worked by the employee in respect of which 21
the rebate is claimed during the year of employment concerned. 22
D is the average number of hours worked by all full time employees of 23
the employer during that same period. 24
(3) The rebate payable for a year of employment is taken to be the rebate 25
payable for a part time employee if: 26
(a) a person is employed in the position in respect of which the rebate 27
is claimed otherwise than as a full time employee at any time 28
during the year of employment, or 29
(b) the position in respect of which the rebate is claimed is vacant 30
during the year of employment for a period exceeding the 31
maximum vacancy period and the rebate is paid despite the 32
vacancy. 33
(4) To calculate the average number of hours worked by full time 34
employees of an employer, overtime is to be excluded. 35
Page 10
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011 Clause 16
Calculation of rebate Part 3
(5) An amount paid by way of rebate is not to exceed the maximum rebate 1
payable for a year of employment. 2
16 Maximum rebate payable 3
(1) The maximum rebate payable for a year of employment is the amount 4
of the employer's net payroll tax liability for the financial year in which 5
the claim for the rebate is made. 6
(2) An employer's net payroll tax liability is the correct amount of payroll 7
tax payable by the employer (within the meaning of Part 6 of the Payroll 8
Tax Act 2007) less any rebates of payroll tax paid or payable to the 9
employer in respect of that financial year under that Act. 10
(3) This section does not prevent the Chief Commissioner from paying a 11
rebate before an assessment is made of an employer's net payroll tax 12
liability. 13
(4) However, a claimant is required to repay any amount paid by way of 14
rebate in excess of the maximum rebate payable. 15
17 Compromise calculation 16
(1) In a difficult case, the Chief Commissioner may determine the number 17
of full time equivalent employees of an employer, or the rebate payable 18
to an employer, by any method agreed between the claimant and the 19
Chief Commissioner. 20
(2) A difficult case is any case in which the Chief Commissioner and a 21
claimant agree that it is difficult or impracticable for the relevant 22
determination to be made as otherwise provided by this Act without 23
undue delay or expense (whether because of the complexity or 24
uncertainty of the case or for any other reason). 25
(3) The Chief Commissioner cannot vary or reverse a decision to pay a 26
rebate in accordance with a determination made under this section 27
except: 28
(a) with the agreement of the claimant, or 29
(b) in a case where the decision was procured by fraud or there was 30
a deliberate failure to disclose material information. 31
Page 11
Clause 18 Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Part 4 Payment of rebate
Part 4 Payment of rebate 1
Division 1 Registration and claim for rebate 2
18 Rebate to be paid only to registered claimants 3
A rebate may be claimed in respect of eligible employment only if the 4
employer is a registered claimant in respect of the employment 5
concerned. 6
19 Chief Commissioner to register claimants 7
(1) The Chief Commissioner may register an employer as a claimant in 8
respect of the employment of a person in a specified position. 9
(2) A registered claimant is an employer registered by the Chief 10
Commissioner as a claimant. 11
20 Application for registration as claimant 12
(1) An employer may apply to the Chief Commissioner for registration as 13
a claimant in respect of the employment of a person in a specified 14
position. 15
(2) The application must: 16
(a) be made in a form approved by the Chief Commissioner, and 17
(b) contain or be accompanied by the information specified in the 18
form. 19
(3) An application can be made only by an employer who is registered as 20
an employer under the Payroll Tax Act 2007. 21
(4) An application must be made within 30 days after the employment to 22
which the application relates first commences or within such further 23
period as the Chief Commissioner may allow in respect of the employer. 24
21 No registration after scheme closure date 25
(1) The Chief Commissioner is not to register an employer as a claimant in 26
respect of the employment of a person if the application for registration 27
is made after the scheme closure date for the area in which the person is 28
employed. 29
(2) The rebate criteria may make provision for determining the area in 30
which a person is employed. 31
Page 12
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011 Clause 22
Payment of rebate Part 4
22 Claim required at the end of each year 1
(1) A rebate may be paid to a registered claimant in respect of a year of 2
employment only if the rebate is claimed in accordance with this 3
section. 4
(2) An employer who is a registered claimant may claim the rebate payable 5
for a year of employment at the end of that year. 6
(3) The claim must be made no later than 30 days after the end of the year 7
of employment concerned or within such further period as the Chief 8
Commissioner may allow in respect of the employer. 9
(4) A claim must: 10
(a) be made to the Chief Commissioner, and 11
(b) be made in a form approved by the Chief Commissioner, and 12
(c) contain or be accompanied by the information specified in the 13
form. 14
Division 2 Decision with respect to claim 15
23 Chief Commissioner to decide claim 16
The Chief Commissioner is to decide whether a rebate is payable in 17
respect of a claim and the amount of the rebate payable. 18
24 Discretion to refuse contrived claim 19
(1) The Chief Commissioner may refuse to pay a rebate, or require 20
repayment of a rebate already paid, if the Chief Commissioner is of the 21
opinion that a claimed increase in the number of full time equivalent 22
employees of an employer is contrived for the purpose of claiming a 23
rebate under the rebate scheme. 24
(2) Without limiting subsection (1), the following is evidence that an 25
increase in the number of full time equivalent employees is contrived: 26
(a) the fact that the number of full time equivalent employees of an 27
employer at any time during the period of 3 months before the 28
employment commencement date is higher than the number of 29
full time equivalent employees of the employer on the 30
employment commencement date, 31
(b) the fact that the number of full time equivalent employees of an 32
employer is, for a period exceeding 30 days during a year of 33
employment for which a rebate is claimed, lower than the number 34
of full time equivalent employees of the employer on a relevant 35
anniversary date. 36
Page 13
Clause 25 Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Part 4 Payment of rebate
(3) In this section: 1
employment commencement date means the date on which eligible 2
employment is claimed to commence. 3
relevant anniversary date is the first or second anniversary of the 4
employment commencement date. 5
25 Payment of rebate 6
(1) A rebate is to be paid: 7
(a) to the claimant, or 8
(b) to some other person to whom the claimant directs in writing that 9
the rebate be paid. 10
(2) A rebate may be paid by electronic funds transfer, by cheque or in any 11
other way the Chief Commissioner thinks appropriate. 12
26 Use of rebate to offset tax liability 13
(1) The Chief Commissioner may, instead of paying a rebate, apply the 14
amount of the rebate, or part of the rebate, towards a liability of the 15
claimant for payroll tax or any other tax of the State. 16
(2) Consent of the claimant is not required. 17
(3) An amount so applied is taken to be an amount paid by way of rebate 18
for the purposes of this Act. 19
27 Power to correct decision 20
(1) If the Chief Commissioner decides a claim, and is later satisfied 21
(independently of an objection under this Act) that the decision is 22
incorrect, the Chief Commissioner may vary or reverse the decision. 23
(2) A decision cannot be varied or reversed under this section more than 24
5 years after it was made. 25
(3) The 5-year time limit on varying or reversing a decision does not apply 26
to a decision that was made on the basis of false or misleading 27
information provided by a claimant or by a person on behalf of the 28
claimant. 29
28 Notification of decision 30
(1) The Chief Commissioner must give a claimant notice of a decision to 31
grant or refuse a claim or vary or reverse an earlier decision on a claim. 32
(2) Notice of a decision to refuse a claim, or vary or reverse an earlier 33
decision on a claim, must include the reasons for the decision. 34
Page 14
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011 Clause 28
Payment of rebate Part 4
(3) Notice of a decision to grant a claim must include notice of any decision 1
to apply the amount of the rebate towards a liability for tax. 2
Page 15
Clause 29 Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Part 5 Repayment of rebate
Part 5 Repayment of rebate 1
29 Power to require repayment from claimant 2
(1) The Chief Commissioner may, by written notice, require a claimant for 3
a rebate to repay to the Chief Commissioner an amount paid by way of 4
rebate on a claim if: 5
(a) the amount was paid in error, or 6
(b) the Chief Commissioner varies or reverses the decision under 7
which the amount was paid for any other reason, or 8
(c) the claimant is or can be required by or under this Act to repay 9
the amount paid. 10
(2) The Chief Commissioner may, by written notice, require the claimant to 11
pay a penalty determined by the Chief Commissioner if the amount paid 12
by way of rebate was paid as a result of the claimant's dishonesty. 13
(3) The penalty is not to exceed the amount the claimant is required to 14
repay. 15
(4) A claimant for a rebate is liable to pay to the Chief Commissioner an 16
amount the Chief Commissioner requires the claimant to pay under this 17
section. 18
(5) The Chief Commissioner may recover the amount payable as a debt due 19
to the Crown. 20
(6) The Chief Commissioner may, by written notice, require a claimant to 21
pay interest on the amount required to be paid to the Chief 22
Commissioner under this section if the claimant fails to pay the amount 23
in accordance with the requirements specified by the Chief 24
Commissioner in the notice requiring payment. 25
(7) Interest is to be charged in the manner applicable to tax defaults under 26
the Taxation Administration Act 1996. 27
30 Power to require repayment from non-claimant 28
(1) If an amount is paid in error on a claim for a rebate to a person who is 29
not the claimant, the Chief Commissioner may, by written notice, 30
require the person to repay the amount to the Chief Commissioner. 31
(2) The person is liable to pay to the Chief Commissioner an amount the 32
Chief Commissioner requires the person to pay under this section. 33
(3) The Chief Commissioner may recover the amount payable as a debt due 34
to the Crown. 35
(4) The Chief Commissioner may, by written notice, require a person to pay 36
interest on the amount required to be paid to the Chief Commissioner 37
Page 16
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011 Clause 31
Repayment of rebate Part 5
under this section if the person fails to pay the amount in accordance 1
with the requirements specified by the Chief Commissioner in the 2
notice requiring payment. 3
(5) Interest is to be charged in the manner applicable to tax defaults under 4
the Taxation Administration Act 1996. 5
31 Recovery from third parties 6
(1) The Chief Commissioner may, by written notice, require a relevant third 7
party to pay an unpaid amount that a rebate recipient is liable to pay to 8
the Chief Commissioner under this Part. 9
(2) Each of the following persons is a relevant third party: 10
(a) a person who owes money to the rebate recipient or may 11
subsequently owe money to the rebate recipient, 12
(b) a person who holds or may subsequently hold money for or on 13
account of the rebate recipient, 14
(c) a person who holds or may subsequently hold money on account 15
of some other person for payment to the rebate recipient, 16
(d) a person having authority from some other person to pay money 17
to the rebate recipient. 18
(3) A copy of the notice must be served on the rebate recipient. 19
(4) The amount of money required to be paid to the Chief Commissioner is: 20
(a) if the amount of the money so owing, held or authorised to be 21
paid does not exceed the amount payable by the rebate recipient 22
to the Chief Commissioner--all the money, or 23
(b) if the amount of the money exceeds the amount payable-- 24
sufficient money to pay the amount payable. 25
(5) The money must be paid to the Chief Commissioner on receipt of the 26
notice, or when the money is held by the person and becomes due to the 27
rebate recipient, or by the end of such period (if any) as may be specified 28
by the Chief Commissioner in the notice requiring payment, whichever 29
is the later. 30
(6) A person subject to a requirement of the Chief Commissioner under this 31
section must comply with the requirement. 32
Maximum penalty: 100 penalty units. 33
(7) A person who makes a payment in accordance with this section is taken 34
to be acting under the authority of the rebate recipient and of all other 35
persons concerned and is indemnified by this section in respect of the 36
payment. 37
Page 17
Clause 32 Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Part 5 Repayment of rebate
(8) If, after a person is given a notice under this section by the Chief 1
Commissioner, the whole or a part of the amount is paid by another 2
person, the Chief Commissioner must promptly notify the person to 3
whom the notice is given of the payment and the notice is taken to be 4
amended accordingly. 5
(9) In this section: 6
rebate recipient means a claimant for a rebate or any other person to 7
whom an amount is paid by way of rebate under this Act. 8
32 Payment by instalments 9
(1) The Chief Commissioner may enter into an arrangement for payment by 10
instalments of an outstanding amount that a person is liable to pay under 11
this Part. 12
(2) The arrangement may include provision for the payment of interest at 13
the rate applicable to tax defaults under the Taxation Administration Act 14
1996. 15
33 Write off of liabilities 16
The Chief Commissioner may write off the whole or part of a liability 17
outstanding under this Part if satisfied that action, or further action, to 18
recover the amount outstanding is impracticable or unwarranted. 19
34 Remission of amounts payable 20
(1) The Chief Commissioner may remit, in whole or in part, any amount a 21
person is required to pay under this Part. 22
(2) An amount remitted is taken to have been paid. 23
Page 18
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011 Clause 35
Objections and reviews Part 6
Part 6 Objections and reviews 1
Division 1 Objections 2
35 Objections 3
(1) A claimant for a rebate who is dissatisfied with any of the following 4
decisions of the Chief Commissioner may lodge a written objection to 5
the decision with the Chief Commissioner: 6
(a) a decision on the person's claim for a rebate (including a decision 7
to vary or reverse an earlier decision made independently of an 8
objection under this Act), 9
(b) a decision to require the person to repay an amount paid by way 10
of rebate under this Act, 11
(c) a decision to require the person to pay a penalty under this Act, 12
(d) a decision to require the person to pay interest on an amount 13
unpaid under this Act. 14
(2) A person (other than a claimant for a rebate) who is dissatisfied with any 15
of the following decisions of the Chief Commissioner may lodge a 16
written objection to the decision with the Chief Commissioner: 17
(a) a decision to require the person to repay an amount paid by way 18
of rebate under this Act (made on the basis that the amount was 19
paid in error), 20
(b) a decision to require the person to pay interest on an amount 21
unpaid under this Act. 22
(3) A person who is dissatisfied with a decision of the Chief Commissioner 23
to require the person to pay an amount to the Chief Commissioner under 24
this Act made on the basis that the person is a relevant third party may 25
lodge a written objection to the decision with the Chief Commissioner. 26
36 Time for lodging objection 27
(1) An objection must be lodged within 60 days after the date notice of the 28
decision concerned is served on the objector. 29
(2) If the Chief Commissioner is satisfied that an objector has a reasonable 30
excuse for failing to lodge an objection within the 60-day period, the 31
Chief Commissioner may extend the time for lodging the objection. 32
37 Grounds for objection to be stated 33
The grounds for an objection must be stated fully and in detail in the 34
notice of objection. 35
Page 19
Clause 38 Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Part 6 Objections and reviews
38 Onus of proof on objection 1
An objector has the onus of proving the objector's case on an objection. 2
39 Powers of Chief Commissioner on objection 3
After considering an objection, the Chief Commissioner may: 4
(a) allow the objection in whole or in part or disallow the objection, 5
and 6
(b) accordingly reverse, vary or confirm the decision to which the 7
objection was made. 8
40 Notice of determination of objection 9
(1) The Chief Commissioner must give an objector written notice of the 10
determination of the objection. 11
(2) The Chief Commissioner must, in the notice, give the reasons for 12
disallowing the objection or for allowing the objection in part only. 13
(3) The reasons for a determination of an objection must set out the matters 14
referred to in section 49 (3) of the Administrative Decisions Tribunal 15
Act 1997 in respect of the determination. 16
(4) The notice must also inform the objector of the objector's right to make 17
an application for review under Division 2 in the case of a determination 18
to disallow the objection or to allow the objection in part only. 19
Division 2 Reviews 20
41 Reviews by Administrative Decisions Tribunal 21
(1) An objector may apply to the Administrative Decisions Tribunal for a 22
review of the decision (the original decision) to which the objection 23
was made if: 24
(a) the objector is dissatisfied with the Chief Commissioner's 25
determination of the objection, or 26
(b) 90 days have passed since the objection was lodged with the 27
Chief Commissioner and the Chief Commissioner has not 28
determined the objection. 29
(2) The claimant's and respondent's cases on an application for review are 30
not limited to the grounds of the objection. 31
(3) The claimant has the onus of proving the claimant's case in an 32
application for review. 33
Page 20
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011 Clause 42
Objections and reviews Part 6
(4) An application for review: 1
(a) following a determination by the Chief Commissioner of an 2
objection--must be made not later than 60 days after the date of 3
issue of the notice of the Chief Commissioner's determination of 4
the objection, or 5
(b) following a failure of the Chief Commissioner to determine an 6
objection within the relevant 90-day period--may be made at any 7
time after the end of that period (but must be made as required by 8
paragraph (a) following a subsequent determination of the 9
objection by the Chief Commissioner). 10
(5) The Administrative Decisions Tribunal may extend the time for making 11
an application for review. 12
(6) The following provisions of the Administrative Decisions Tribunal Act 13
1997 do not apply to an application made under this section: 14
(a) Part 2 of Chapter 5, 15
(b) section 55 (1) (b) and (d), 16
(c) Division 2 of Part 3 of Chapter 5. 17
(7) For the purposes of section 58 (1) (a) of the Administrative Decisions 18
Tribunal Act 1997: 19
(a) the obligation of the Chief Commissioner under that paragraph to 20
lodge a statement of reasons with the Administrative Decisions 21
Tribunal in respect of an application is limited to providing the 22
Tribunal with a statement of reasons only in respect of the matters 23
arising from the grounds specified in the application, and 24
(b) if one of the grounds specified in the application relates to a 25
matter raised in an objection determined by the Chief 26
Commissioner--the Chief Commissioner may rely on reasons 27
previously given to the objector by the Chief Commissioner 28
under this Act for the determination of the objection in 29
explanation of that part of the original decision. 30
42 Powers of Administrative Decisions Tribunal on review 31
(1) On a review, the Administrative Decisions Tribunal may: 32
(a) confirm, vary or reverse the original decision, and 33
(b) make any further orders as to costs or otherwise that it thinks fit. 34
(2) This section does not limit the generality of Division 3 of Part 3 of 35
Chapter 5 of the Administrative Decisions Tribunal Act 1997. 36
Page 21
Clause 43 Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Part 7 Administration
Part 7 Administration 1
Division 1 Administration generally 2
43 Administration 3
The Chief Commissioner is responsible to the Minister for the 4
administration of the rebate scheme. 5
44 Delegation 6
The Chief Commissioner may delegate functions related to the 7
administration of the rebate scheme other than this power of delegation. 8
45 Authorised officers 9
(1) A person who is an authorised officer for the purposes of the taxation 10
laws, as referred to in section 68 of the Taxation Administration Act 11
1996, is taken to be an authorised officer for the purposes of this Act. 12
(2) Without limiting subsection (1), the Chief Commissioner may appoint 13
persons to be authorised officers for the purposes of this Act. 14
Division 2 Powers of investigation 15
46 Chief Commissioner may carry out authorised investigation 16
(1) The Chief Commissioner may carry out an authorised investigation for 17
the purposes of this Act. 18
(2) In this Division, an authorised investigation is an investigation to 19
determine: 20
(a) whether an application or claim under this Act has been properly 21
made, or 22
(b) whether an objection to a decision made under this Act should be 23
upheld, or 24
(c) whether a claimant to whom, or for whose benefit, a rebate has 25
been paid under this Act was eligible for the rebate, or 26
(d) any other matter reasonably related to the administration of this 27
Act. 28
47 Powers in connection with authorised investigation 29
(1) For the purposes of an authorised investigation, the Chief 30
Commissioner may, by written notice, require a person: 31
(a) to give the Chief Commissioner written information specified in 32
the notice, or 33
Page 22
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011 Clause 48
Administration Part 7
(b) to attend at a specified time and place before the Chief 1
Commissioner or an authorised officer to answer questions 2
relevant to the investigation, or 3
(c) to produce any document to the Chief Commissioner at a 4
specified time and place. 5
(2) A specified time and place for the attendance of a person, or the 6
production of a document, must be a time and place that is reasonable 7
in the circumstances. 8
(3) The Chief Commissioner may require that information given, or to be 9
given, under this section be verified on oath or by statutory declaration. 10
48 Access to public records without fee 11
The Chief Commissioner is entitled, for the purposes of an authorised 12
investigation, to inspect and take copies of any public record kept under 13
an Act or law of this State without payment of any fee that would be 14
payable but for this section. 15
49 Power of entry to premises 16
(1) The Chief Commissioner may enter and remain on premises if the Chief 17
Commissioner has reason to believe or suspect that there are documents 18
at the premises that are relevant to the administration of this Act. 19
(2) Entry may be made at any reasonable time. 20
(3) The power of an authorised officer to enter premises may not be 21
exercised unless the authorised officer has a written delegation covering 22
entry issued by the Chief Commissioner and produces it if requested to 23
do so by the owner or occupier of the premises, or a person in physical 24
occupation of the premises. 25
(4) Before the Chief Commissioner or an authorised officer enters premises 26
under this Act, the Chief Commissioner or authorised officer must give 27
the owner or occupier of the premises, or a person in physical 28
occupation of the premises, reasonable notice of the intention to enter 29
unless: 30
(a) entry is made with the consent of the owner, occupier or person, 31
or 32
(b) the giving of notice would, in the opinion of the Chief 33
Commissioner or authorised officer, defeat the purpose for which 34
it is intended to enter the premises. 35
Page 23
Clause 50 Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Part 7 Administration
(5) The powers of entry and inspection conferred by this Part are not 1
exercisable in relation to premises or a part of premises used for 2
residential purposes except: 3
(a) with the consent of the owner or occupier of the premises or part, 4
or a person in physical occupation of the premises or part, or 5
(b) under the authority conferred by a search warrant. 6
50 Functions exercisable on entry 7
(1) The Chief Commissioner or an authorised officer who has entered 8
premises in accordance with this Division may: 9
(a) require any person at those premises to produce any documents 10
in the custody or possession or under the control of the person 11
(including a written document that reproduces in an 12
understandable form information stored by computer, microfilm 13
or other means or process), and 14
(b) require any person at those premises to answer questions or 15
otherwise furnish information, and 16
(c) require the owner or occupier of the premises, or any person 17
physically in occupation of the premises, to provide the Chief 18
Commissioner or authorised officer with such assistance and 19
facilities as are reasonably necessary to enable the Chief 20
Commissioner or authorised officer to exercise the functions of 21
the Chief Commissioner or an authorised officer under this Part. 22
(2) A receipt is to be issued for anything removed. 23
51 Use and inspection of documents 24
(1) The Chief Commissioner or an authorised officer may take and retain 25
possession of any document provided or produced to the Chief 26
Commissioner or authorised officer under this Part for the purpose of: 27
(a) inspecting the document, or 28
(b) taking copies of, or extracts of and notes from, the document. 29
(2) However, if the document was provided or produced to the Chief 30
Commissioner or authorised officer on the premises where it is 31
normally kept, the Chief Commissioner or authorised officer may 32
remove it from those premises only: 33
(a) with the consent of the owner or occupier of the premises, or 34
(b) if it is not practicable to inspect or copy or take extracts or notes 35
from the document on the premises. 36
Page 24
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011 Clause 52
Administration Part 7
(3) The Chief Commissioner or authorised officer may retain possession of 1
the document for a reasonable period, but not exceeding 28 days 2
without the consent of the person entitled to it. 3
(4) The Chief Commissioner or authorised officer must permit a person 4
who would be entitled to inspect the document if it were not in the 5
possession of the Chief Commissioner or authorised officer to inspect 6
the document at any reasonable time. 7
(5) Nothing in this section prejudices a lien a person has on the document. 8
52 Search warrant 9
(1) The Chief Commissioner or an authorised officer under this Act may 10
apply to an authorised officer under the Law Enforcement (Powers and 11
Responsibilities) Act 2002 for a warrant to search any premises if the 12
Chief Commissioner or the authorised officer under this Act has 13
reasonable grounds to believe that there is on the premises any 14
document relevant to the administration of this Act. 15
(2) An authorised officer under the Law Enforcement (Powers and 16
Responsibilities) Act 2002 to whom the application is made may, if 17
satisfied that there are reasonable grounds for doing so, issue a search 18
warrant authorising the Chief Commissioner or authorised officer under 19
this Act to enter and search the premises. 20
(3) This section does not limit any power conferred on the Chief 21
Commissioner or an authorised officer by another provision of this Part. 22
53 Obstruction or failure to comply 23
(1) A person must not: 24
(a) prevent the Chief Commissioner or an authorised officer from 25
exercising a function under this Part, or 26
(b) hinder or obstruct the Chief Commissioner or an authorised 27
officer in the exercise of such a function, or 28
(c) without reasonable excuse, refuse or fail to comply with a 29
requirement made by the Chief Commissioner or an authorised 30
officer under this Part. 31
Maximum penalty: 100 penalty units. 32
(2) A person is not guilty of an offence under this section arising from the 33
entry of the Chief Commissioner or an authorised officer onto premises 34
unless it is established that, at the material time, the Chief 35
Commissioner or the authorised officer: 36
(a) identified himself or herself as the Chief Commissioner or an 37
authorised officer, and 38
Page 25
Clause 54 Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Part 7 Administration
(b) warned the person that a failure to comply with the requirement 1
may constitute an offence. 2
54 Defence of reasonable compliance 3
A person is not guilty of an offence under this Part if the court hearing 4
the charge is satisfied that: 5
(a) the defendant could not, by the exercise of reasonable diligence, 6
have complied with the requirement to which the charge relates, 7
or 8
(b) the defendant complied with the requirement to the extent of his 9
or her ability to do so. 10
55 Functions may be exercised concurrently with functions under Taxation 11
Administration Act 1996 12
(1) The functions conferred on the Chief Commissioner or an authorised 13
officer by this Part with respect to an authorised investigation may be 14
exercised concurrently with any functions conferred on the Chief 15
Commissioner or authorised officer by the Taxation Administration Act 16
1996. 17
(2) In particular, an authorised investigation under this Part may be 18
conducted in conjunction with any investigation or audit conducted 19
under the Taxation Administration Act 1996. 20
(3) A person who enters premises under the Taxation Administration Act 21
1996 may exercise on the premises any function the person would have 22
under this Act if the premises had been entered under this Act. 23
(4) This section applies despite section 71 of the Taxation Administration 24
Act 1996. 25
Page 26
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011 Clause 56
Miscellaneous Part 8
Part 8 Miscellaneous 1
56 Knowingly giving false or misleading information 2
(1) A person must not make a statement, or give any information, to an 3
authorised officer knowing that it is false or misleading in a material 4
particular. 5
Maximum penalty: 100 penalty units. 6
(2) A person must not, in or in relation to an application or claim under this 7
Act, make a statement or give any information knowing that it is false 8
or misleading in a material particular. 9
Maximum penalty: 100 penalty units. 10
(3) This section applies to any statement or information, whether given 11
orally or in writing. 12
57 Protection of confidential information 13
(1) A person who is subject to a duty of confidentiality must not disclose 14
protected information except as permitted by this section. 15
Maximum penalty: 100 penalty units. 16
(2) A person is subject to a duty of confidentiality if: 17
(a) the person is, or has been, engaged in work related to the 18
administration of this Act, or 19
(b) the person has obtained access to protected information (directly 20
or indirectly) from a person who is, or has been, engaged in work 21
related to the administration of this Act. 22
(3) Information is protected information if it is information about a 23
claimant for a rebate obtained in the course of work related to the 24
administration of this Act. 25
(4) Protected information may be disclosed: 26
(a) at the request or with the consent of the person to whom the 27
information relates or a person acting on that person's behalf, or 28
(b) in connection with the administration of the following laws 29
(including for the purpose of any legal proceedings arising out of 30
any of those laws or a report of any such proceedings): 31
(i) this Act, 32
(ii) a taxation law of the Commonwealth or a State or 33
Territory, or 34
(c) as authorised by the regulations. 35
Page 27
Clause 58 Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Part 8 Miscellaneous
58 Evidence 1
(1) A certificate signed by the Chief Commissioner stating that a rebate was 2
paid to a person named in the certificate on a specified date is admissible 3
in legal proceedings as evidence of the payment. 4
(2) A copy of a notice issued by the Chief Commissioner imposing a 5
penalty under this Act is admissible in legal proceedings as evidence of 6
the imposition of the penalty. 7
(3) A copy of a notice issued by the Chief Commissioner requiring the 8
payment or repayment of a specified amount is admissible in legal 9
proceedings as evidence: 10
(a) that the requirement was made, and 11
(b) that the amount specified in the notice was outstanding at the date 12
of the notice. 13
59 Proceedings for offences 14
(1) Proceedings for an offence against this Act or the regulations may be 15
dealt with before the Local Court or before the Supreme Court in its 16
summary jurisdiction. 17
(2) Proceedings for an offence against this Act or the regulations may be 18
commenced at any time within 3 years after the date on which it is 19
alleged the offence was committed. 20
60 Standing appropriation 21
The Consolidated Fund is appropriated to the extent necessary for the 22
payment of rebates under this Act. 23
61 Personal liability 24
(1) A matter or thing done or omitted to be done by a protected person does 25
not, if the matter or thing was done or omitted in good faith for the 26
purpose of administering this Act, subject the person so acting 27
personally to any action, liability, claim or demand. 28
(2) In this section, a protected person means: 29
(a) the Chief Commissioner or an authorised officer, or 30
(b) a member of the Government Service involved in the 31
administration of this Act, or 32
(c) a person to whom the Chief Commissioner has delegated 33
functions under this Act. 34
Page 28
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011 Clause 62
Miscellaneous Part 8
62 Regulations 1
(1) The Governor may make regulations, not inconsistent with this Act, for 2
or with respect to any matter that by this Act is required or permitted to 3
be prescribed or that is necessary or convenient to be prescribed for 4
carrying out or giving effect to this Act. 5
(2) A regulation may create an offence punishable by a penalty not 6
exceeding 20 penalty units. 7
63 Repeal of Act 8
This Act is repealed on 1 July 2018. 9
Page 29
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Schedule 1 Savings, transitional and other provisions
Schedule 1 Savings, transitional and other 1
provisions 2
1 Regulations 3
(1) The regulations may contain provisions of a savings or transitional 4
nature consequent on the enactment of the following Acts: 5
this Act 6
(2) Any such provision may, if the regulations so provide, take effect from 7
the date of assent to the Act concerned or a later date. 8
(3) To the extent to which any such provision takes effect from a date that 9
is earlier than the date of its publication on the NSW legislation website, 10
the provision does not operate so as: 11
(a) to affect, in a manner prejudicial to any person (other than the 12
State or an authority of the State), the rights of that person 13
existing before the date of its publication, or 14
(b) to impose liabilities on any person (other than the State or an 15
authority of the State) in respect of anything done or omitted to 16
be done before the date of its publication. 17
Page 30
Payroll Tax Rebate Scheme (Jobs Action Plan) Bill 2011
Consequential amendments to other Acts Schedule 2
Schedule 2 Consequential amendments to other 1
Acts 2
2.1 Administrative Decisions Tribunal Act 1997 No 76 3
Schedule 2 Composition and functions of Divisions 4
Insert in alphabetical order in clause 2 of Part 3C: 5
Payroll Tax Rebate Scheme (Jobs Action Plan) Act 2011 6
2.2 Law Enforcement (Powers and Responsibilities) Act 2002 7
No 103 8
Schedule 2 Search warrants under other Acts 9
Insert in alphabetical order in Schedule 2: 10
Payroll Tax Rebate Scheme (Jobs Action Plan) Act 2011, 11
section 52 12
Page 31
[Index] [Search] [Download] [Related Items] [Help]