New South Wales Repealed Acts New South Wales Repealed ActsThis legislation has been repealed.
(1) A reference in this section to a relevant contract in relation to a financial year is a reference to a contract under which a person (in this subsection referred to as the "designated person"), during that financial year, in the course of a business carried on by the person:(a) supplies to another person services for or in relation to the performance of work,(b) is supplied with the services of persons for or in relation to the performance of work, or(c) gives out goods to natural persons for work to be performed by those persons in respect of those goods and for re-supply of those goods to a designated person or, where the designated person is a member of a group, to another member of that group,but does not include a reference to a contract of service or a contract under which the designated person, during a financial year, in the course of a business carried on by the designated person:(d) is supplied with services for or in relation to the performance of work that are ancillary to the supply of goods under the contract by the person by whom the services are supplied or to the use of goods which are the property of that person,(e) is supplied with services for or in relation to the performance of work where:(i) those services are of a kind not ordinarily required by the designated person and are rendered by a person who ordinarily renders services of that kind to the public generally,(ii) those services are of a kind ordinarily required by the designated person for less than 180 days in that financial year,(iii) those services are provided for a period that does not exceed 90 days or for periods that, in the aggregate, do not exceed 90 days in that financial year and are not services:(A) provided by a person by whom similar services are provided to the designated person, or(B) for or in relation to the performance of work where any of the persons who perform the work also perform similar work for the designated person, for periods that, in the aggregate, exceed 90 days in that financial year,(iv) the payment of the consideration under the contract is made at a rate that is not less than $800,000 per annum, or(v) those services are supplied under a contract to which subparagraphs (i)-(iv) do not apply and the Chief Commissioner is satisfied that those services are rendered by a person who ordinarily renders services of that kind to the public generally, or(f) is supplied by a person (in this paragraph referred to as "the contractor") with services for or in relation to the performance of work under a contract to which paragraphs (d) and (e) do not apply, where the work to which the services relate is performed:(i) by 2 or more persons employed by, or who provide services for, the contractor in the course of a business carried on by the contractor,(ii) where the contractor is a partnership of 2 or more natural persons, by 1 or more of the members of the partnership and 1 or more persons employed by, or who provide services for, the contractor in the course of a business carried on by the contractor, or(iii) where the contractor is a natural person, by the contractor and 1 or more persons employed by, or who provide services for, the contractor in the course of a business carried on by the contractor,unless the Chief Commissioner determines that the contract under which the services are so supplied was entered into with an intention either directly or indirectly of avoiding or evading the payment of tax by any person.
(1A) For the purposes of this section, a contract under which:(a) a person is supplied with services ancillary to the conveyance of goods by means of a vehicle provided by the person conveying them,(b) a person is supplied with services for or in relation to the procurement of persons desiring to be insured by the person, or(c) a person is supplied with services for or in relation to the door-to-door sale of goods to consumers on the person’s behalf,is not a relevant contract, unless the Chief Commissioner determines that the contract was entered into with an intention either directly or indirectly of avoiding or evading the payment of tax by any person.
(1B) For the purposes of this section, a contract under which services are supplied by an employment agent, or a contract worker is procured by an employment agent, under an employment agency contract within the meaning of section 3C is not a relevant contract.
(2) For the purposes of this Act:(a) a person:(ii) to whom during a financial year, under a relevant contract, the services of persons are supplied for or in relation to the performance of work, or(iii) who during a financial year, under a relevant contract, gives out goods to other persons,shall be deemed to be an employer in respect of that financial year,(b) a person who during a financial year:(i) performs work for or in relation to which services are supplied to another person under a relevant contract, or(ii) being a natural person, under a relevant contract, re-supplies goods to an employer,shall be deemed to be an employee in respect of that financial year,(c) amounts paid or payable by an employer, and benefits paid or payable by an employer and received by a person that would be fringe benefits if they were paid or payable to the person in the capacity of an employee of the employer, during a financial year for or in relation to the performance of work relating to a relevant contract or the re-supply of goods by an employee under a relevant contract shall be deemed to be wages paid or payable during that financial year, and(d) where an amount referred to in paragraph (c) is included in a larger amount paid or payable by an employer under a relevant contract during a financial year, that part of the larger amount which is not attributable to the performance of work relating to the relevant contract or the re-supply of goods by an employee under the relevant contract may be prescribed by the regulations, and(e) an amount paid or payable for or in relation to the performance of work under a relevant contract is taken to include any payment made by a person who is taken to be an employer under a relevant contract in relation to a person who is taken to be an employee under the relevant contract that would be a superannuation benefit if made in relation to a person in the capacity of an employee, and(f) an amount paid or payable for or in relation to the performance of work under a relevant contract is taken to include the value of any contribution to a share scheme (not otherwise included as wages under this Act) provided or liable to be provided by the employer that is taken to constitute wages under section 3AD.
(4) Where:(a) a contract under which a person (in this subsection referred to as the "designated person") in the course of a business carried on by the person supplies to another person services for or in relation to the performance of work would, but for subsection (1) (e) (iv), be a relevant contract, and(b) contracts under which the designated person in the course of the same business is supplied with the services of persons for or in relation to the performance of work would, but for subsection (1) (e) (ii) or (iii), be relevant contracts,the Chief Commissioner may, unless the designated person satisfies the Chief Commissioner that the business is carried on independently of, and is not connected with, the carrying on of a business carried on by another person or other persons and that the business is not carried on with an intention either directly or indirectly of avoiding or evading the payment of tax whether by the designated person or another person, by notice in writing given to the designated person determine that the contracts referred to in paragraph (b) are relevant contracts notwithstanding subsection (1) (e) (ii) and (iii).
(5) Where, in respect of a payment for or in relation to the performance of work that is deemed to be wages under this section, pay-roll tax is paid by a person deemed under this section to be an employer:(a) no other person shall be liable to pay-roll tax in respect of that payment, and(b) where another person is liable to make a payment for or in relation to that work, that person shall not be liable to pay-roll tax in respect of that payment unless it or the payment by the person so deemed to be an employer is made with an intention either directly or indirectly of avoiding or evading the payment of tax whether by that deemed employer or another person.
(5A) The wages that are liable to taxation under this section do not include amounts paid or payable by an AFS licence holder in respect of services provided by a financial planner if the exemption conditions are satisfied. The exemption conditions are the conditions set out in Schedule 1B.
(5B) In subsection (5A):
"AFS licence holder" means a financial services licensee within the meaning of the Corporations Act 2001 of the Commonwealth.
"financial planner" means a person who provides financial services (within the meaning of the Corporations Act 2001 of the Commonwealth) by either or both of the following means:(a) providing financial product advice (within the meaning of the Corporations Act 2001 of the Commonwealth),(b) dealing in a financial product (within the meaning of that Act) as agent for an AFS licence holder, other than by underwriting securities or managed investment products (within the meaning of that Act).
(6) In this section:(a) a reference to a contract includes a reference to an agreement, arrangement or undertaking, whether formal or informal and whether express or implied,(b) a reference to supply includes a reference to supply by way of sale, exchange, lease, hire or hire-purchase and, in relation to services, includes a reference to the providing, granting or conferring of services,(c) a reference (however expressed) to the re-supply of goods acquired from a person includes a reference to:(i) a supply to the person of goods in an altered form or condition,(ii) a supply to the person of goods in which the firstmentioned goods have been incorporated, and(iii) a supply to the person of an article manufactured or produced from any such goods,(d) a reference to services includes a reference to results (whether goods or services) of work performed, and(e) a reference to a financial year shall be deemed to include a reference to the period from the commencement of this section to 30 June 1986.