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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
PAYROLL TAX BILL 2008
__________
CONTENTS
PART 1 PRELIMINARY
1. Short title
2. Commencement
3. Definitions
4. Taxation Administration Act 1997
5. Act binds the Crown
PART 2 IMPOSITION OF PAYROLL TAX
Division 1 Imposition of tax
6. Imposition of payroll tax
7. Who is liable for payroll tax
8. Amount of payroll tax
9. When must payroll tax be paid
Division 2 Taxable wages
10. What are taxable wages?
11. Wages not referable to services performed in a particular month
Division 3 Other
12. Payroll tax paid under corresponding applied law
[Bill 22]-I
PART 3 WAGES
Division 1 General concept of wages
13. What are wages?
Division 2 Fringe benefits
14. Wages include fringe benefits
15. Value of wages comprising fringe benefits
16. Employer election regarding taxable value of fringe benefits
Division 3 Superannuation contributions
17. Wages include superannuation contributions
Division 4 Shares and options
18. Inclusion of grant of shares and options as wages
19. Choice of relevant day
20. Deemed choice of relevant day in special cases
21. Effect of rescission, cancellation of share or option
22. Grant of share pursuant to exercise of option
23. Value of shares and options
24. Inclusion of shares and options granted to directors as wages
25. When services considered to have been performed
26. Place where wages are payable
Division 5 Termination payments
27. Definitions
28. Termination payments
Division 6 Allowances
29. Motor vehicle allowances
30. Accommodation allowances
Division 7 Contractor provisions
31. Definitions
32. What is a relevant contract?
33. Persons taken to be employers
34. Persons taken to be employees
35. Amounts under relevant contracts taken to be wages
2
36. Liability provisions
Division 8 Employment agents
37. Definitions
38. Persons taken to be employers
39. Persons taken to be employees
40. Amounts taken to be wages
41. Liability provisions
42. Agreement to reduce or avoid liability to payroll tax
Division 9 Other
43. Value of wages paid in kind
44. GST excluded from wages
45. Wages paid by group employers
46. Wages paid by or to third parties
47. Agreement etc to reduce or avoid liability to payroll tax
PART 4 EXEMPTIONS
Division 1 Non-profit organisations
48. Non-profit organisations
Division 2 Education and training
49. Schools and educational services and training
50. Community Development Employment Project
Division 3 Health care service providers
51. Health care service providers
52. Division not to limit other exemptions
Division 4 Maternity and adoption leave
53. Maternity and adoption leave
54. Administrative requirements for exemption
Division 5 Volunteer firefighters and emergency service volunteers
55. Volunteer firefighters
56. Emergency service volunteers
57. Limitation of exemption
3
Division 6 Local government
58. Local and county councils
59. Local government business entities
60. Limitation on local government exemptions
Division 7 Other government and defence
61. State Governors
62. Defence personnel
63. War Graves Commission
Division 8 Foreign government representatives and international agencies
64. Consular and non-diplomatic representatives
65. Trade Commissioners
66. Australian-American Fulbright Commission
PART 5 GROUPING OF EMPLOYERS
Division 1 Interpretation
67. Definitions
68. Grouping provisions to operate independently
Division 2 Business groups
69. Constitution of groups
70. Groups of corporations
71. Groups arising from the use of common employees
72. Groups of commonly controlled businesses
73. Groups arising from tracing of interests in corporations
74. Smaller groups subsumed by larger groups
Division 3 Business groups tracing of interests in corporations
75. Application
76. Direct interest
77. Indirect interest
78. Aggregation of interests
Division 4 Miscellaneous
79. Exclusion of persons from groups
4
80. Designated group employers
81. Joint and several liability
PART 6 ADJUSTMENTS OF TAX
82. Determination of correct amount of payroll tax
83. Annual adjustment of payroll tax
84. Adjustment of payroll tax when employer changes
circumstances
85. Special provision where wages fluctuate
PART 7 REGISTRATION AND RETURNS
86. Registration
87. Returns
PART 8 COLLECTION AND RECOVERY OF TAX
Division 1 Agents and trustees generally
88. Application
89. Agents and trustees are answerable
90. Returns by agent or trustee
91. Liability to pay tax
92. Indemnity for agent or trustee
Division 2 Special cases
93. Tax not paid during lifetime
94. Payment of tax by executors or administrators
95. Assessment if no probate within 6 months of death
96. Person in receipt or control of money for absentee
97. Agent for absentee principal winding-up business
98. Recovery of tax paid on behalf of another person
99. Liquidator to give notice
PART 9 GENERAL
100. Provisions specific to this jurisdiction
101. Regulations
102. Nature of proceedings for offences
5
103. Administration of Act
104. Savings, transitional and other provisions
105. Consequential Amendments
106. Legislation repealed
107. Legislation rescinded
SCHEDULE 1 CALCULATION OF PAYROLL TAX LIABILITY FOR
FINANCIAL YEAR COMMENCING 1 JULY 2008 AND
SUBSEQUENT FINANCIAL YEARS
SCHEDULE 2 TASMANIA-SPECIFIC PROVISIONS
SCHEDULE 3 SAVINGS, TRANSITIONAL AND OTHER
PROVISIONS
SCHEDULE 4 CONSEQUENTIAL AMENDMENTS
SCHEDULE 5 LEGISLATION REPEALED
SCHEDULE 6 LEGISLATION RESCINDED
6
PAYROLL TAX BILL 2008
(Brought in by the Premier, the Honourable Paul Anthony
Lennon)
A BILL FOR
An Act to provide for a tax on employers in respect of
certain wages, to harmonise payroll tax law with New
South Wales and Victoria, to repeal the Pay-roll Tax Act
1971, and for other purposes
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 PRELIMINARY
1. Short title
This Act may be cited as the Payroll Tax Act
2008.
2. Commencement
(1) Except as provided in this section, this Act
commences on 1 July 2008 but, if it does not
receive the Royal Assent on or before that day, it
is taken to have commenced on that day.
(2) Part 4 of Schedule 2 is taken to have commenced
on 1 July 2003.
[Bill 22] 7
Payroll Tax Act 2008
Act No. of
s. 3 Part 1 Preliminary
3. Definitions
(1) In this Act
"agent" includes
(a) a person who, in this jurisdiction,
for or on behalf of another person
outside this jurisdiction, holds or
has the management or control of
the business of that other person;
and
(b) a person who, by an order of the
Commissioner, is declared to be
an agent or the sole agent for any
other person for the purposes of
this Act and on whom notice of
that order has been served;
"Australia" means the States of the
Commonwealth and the Territories;
"coastal waters of the State" has the same
meaning as "coastal waters" in the
Coastal and Other Waters (Application
of State Laws) Act 1982;
"Commissioner" means the Commissioner of
State Revenue appointed as such under
the Taxation Administration Act 1997;
"company" includes all bodies and
associations (corporate and
unincorporate) and partnerships;
8
Payroll Tax Act 2008
Act No. of
Part 1 Preliminary s. 3
"corporation" has the same meaning as in
section 9 of the Corporations Act 2001 of
the Commonwealth;
"corresponding law" means a law in force in
another State or a Territory relating to the
imposition upon employers of a tax on
wages paid or payable by them and the
assessment and collection of that tax;
"designated group employer" means a
member designated for a group in
accordance with section 80;
"director of a company" includes a member
of the governing body of the company;
"employer" means a person who pays or is
liable to pay wages and includes
(a) the Crown in any of its
capacities; and
(b) a person taken to be an employer
by or under this Act; and
(c) a public, local or municipal body
or authority constituted under the
law of the Commonwealth or of a
State or Territory unless
being an authority constituted under the
law of the Commonwealth, it is immune
from the operation of this Act;
"employment agency contract" has the
meaning given in section 37;
9
Payroll Tax Act 2008
Act No. of
s. 3 Part 1 Preliminary
"employment agent" has the meaning given
in section 37;
"exempt wages" mean wages that are
declared by or under this Act to be
exempt wages;
"exercise a function" includes perform a
duty;
"FBTA Act" means the Fringe Benefits Tax
Assessment Act 1986 of the
Commonwealth;
"financial year" means each year
commencing on 1 July;
"fringe benefit" has the same meaning as in
the FBTA Act but does not include
(a) a tax-exempt body entertainment
fringe benefit within the meaning
of that Act; or
(b) anything that is prescribed by the
regulations under this Act not to
be a fringe benefit for the
purposes of this definition;
"function" includes a power, authority or
duty;
"group" has the meaning given in section 67;
"GST" has the same meaning as it has in the
A New Tax System (Goods and Services
Tax) Act 1999 of the Commonwealth
except that it includes notional GST of
10
Payroll Tax Act 2008
Act No. of
Part 1 Preliminary s. 3
the kind for which payments may be
made under Part 3 of the National
Taxation Reform (Commonwealth-State
Relations) Act 1999 by a person that is a
State entity within the meaning of that
Act;
"interstate wages" means wages that are
taxable wages within the meaning of a
corresponding law;
"ITAA" means the Income Tax Assessment
Act 1997 of the Commonwealth;
"liquidator" means the person who, whether
or not appointed as liquidator, is the
person required by law to carry out the
winding-up of a company;
"month" means the month of January,
February, March, April, May, June, July,
August, September, October, November
and December;
"option" means an option or right, whether
actual, prospective or contingent, of a
person to acquire a share or to have a
share transferred or allotted to the person;
"paid", in relation to wages, includes
provided, conferred and assigned, and
pay and payable have corresponding
meanings;
"payroll tax" means tax imposed by
section 6;
11
Payroll Tax Act 2008
Act No. of
s. 3 Part 1 Preliminary
"perform", in relation to services, includes
render;
"return period", in relation to an employer,
means a period relating to which that
employer is required to lodge a return
under this Act;
"share" means a share in a company and
includes a stapled security within the
meaning of section 139GCD of the
Income Tax Assessment Act 1936 of the
Commonwealth;
"superannuation contribution" has the
meaning given in section 17(2);
"taxable wages" has the meaning given in
section 10;
"termination payment" has the meaning
given in section 27;
"Territories" means the Australian Capital
Territory (including the Jervis Bay
Territory) and the Northern Territory;
"this jurisdiction" means Tasmania and the
coastal waters of the State;
"voting share" has the same meaning as in
section 9 of the Corporations Act 2001 of
the Commonwealth;
"wages" has the meaning given in Part 3.
(2) Notes included in this Act do not form part of
this Act.
12
Payroll Tax Act 2008
Act No. of
Part 1 Preliminary s. 4
4. Taxation Administration Act 1997
This Act is to be read together with the Taxation
Administration Act 1997 which provides for the
administration and enforcement of this Act and
other taxation laws.
5. Act binds the Crown
(1) This Act binds the Crown in right of this
jurisdiction and, so far as the legislative power
of Parliament permits, the Crown in all its other
capacities.
(2) Nothing in this Act makes the Crown in any of
its capacities liable to be prosecuted for an
offence.
13
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Act No. of
s. 6 Part 2 Imposition of Payroll Tax
PART 2 IMPOSITION OF PAYROLL TAX
Division 1 Imposition of tax
6. Imposition of payroll tax
Payroll tax is imposed on all taxable wages.
7. Who is liable for payroll tax
The employer by whom taxable wages are paid
or payable is liable to pay payroll tax on the
wages.
8. Amount of payroll tax
The amount of payroll tax payable by an
employer is to be ascertained in accordance with
Schedules 1 and 2.
9. When must payroll tax be paid
(1) A person who is liable to pay payroll tax on
taxable wages must pay the tax
(a) within 7 days after the end of the month
in which those wages were paid or
payable, other than the month of June;
and
14
Payroll Tax Act 2008
Act No. of
Part 2 Imposition of Payroll Tax s. 10
(b) within 21 days after the end of the month
of June in relation to taxable wages paid
or payable in the month of June.
(2) However, if the Commissioner has reason to
believe that a person may leave Australia before
any payroll tax becomes payable by the person,
the tax is payable on the day fixed by the
Commissioner by notice served on the person.
Division 2 Taxable wages
10. What are taxable wages?
(1) For the purposes of this Act, "taxable wages"
are wages, other than exempt wages, that are
paid or payable by an employer for services
performed and
(a) are wages that are paid or payable in this
jurisdiction, other than wages so paid or
payable for
(i) services performed wholly in one
other State or a Territory; or
(ii) services performed by a person
wholly in another country for a
continuous period of more than 6
months beginning on the day on
which wages were first paid or
payable to that person for
services so performed; or
15
Payroll Tax Act 2008
Act No. of
s. 10 Part 2 Imposition of Payroll Tax
(b) are wages that are paid or payable
outside this jurisdiction for services
performed wholly in this jurisdiction; or
(c) are wages that are paid or payable
outside Australia for services performed
mainly in this jurisdiction.
(2) For the purposes of subsection (1)(a), wages that
are payable to a person by the person's
employer, but have not been paid (not being
wages that under the terms of employment are
payable in this jurisdiction or in another State or
a Territory) are taken
(a) if those wages are payable in respect of
services performed wholly in this
jurisdiction, to be wages payable to that
person in this jurisdiction; and
(b) if those wages are not payable in respect
of services performed wholly in this
jurisdiction or wholly in one other State
or a Territory and where the wages last
paid or payable to that person by that
employer were included or are required
to be included in a return under this Act,
to be wages payable to that person in this
jurisdiction; and
(c) if those wages are not taken by
paragraph (a) or (b), or by any provision
in a corresponding law that corresponds
to either of those paragraphs, to be wages
payable to that person in this jurisdiction
or in another State or a Territory, to be
16
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Act No. of
Part 2 Imposition of Payroll Tax s. 10
wages payable to that person by that
employer at the place where that person
last performed any services for that
employer before those wages became
payable.
(3) If, for the purpose of the payment of wages
(a) an instrument is sent or given or an
amount is transferred by an employer to a
person or a person's agent at a place in
Australia; or
(b) an instruction is given by an employer
for the crediting of an amount to the
account of a person or a person's agent at
a place in Australia
those wages are taken to have been paid at that
place and to have been paid when the instrument
was sent or given, the amount was transferred or
the account is credited in accordance with the
instruction (as the case may be).
(4) In determining the question whether services are
performed wholly or mainly in this jurisdiction
or another State or a Territory, regard must be
had only to the services performed during the
month in respect of which the question arises.
(5) In this section
"instrument" includes a cheque, bill of
exchange, promissory note or money
order or a postal order issued by a post
office.
17
Payroll Tax Act 2008
Act No. of
s. 11 Part 2 Imposition of Payroll Tax
11. Wages not referable to services performed in a
particular month
For the purposes of this Act, wages that are not
paid in respect of services performed by an
employee in a particular month are taxable
wages as if they were paid or payable in respect
of services performed during the month in which
they were paid or became payable.
Division 3 Other
12. Payroll tax paid under corresponding applied law
(1) For the purposes of ascertaining the payroll tax
payable under this Act by an employer who
during a return period pays taxable wages and
Commonwealth place wages, there is to be
deducted from the amount of payroll tax payable
by the employer under this Act the amount of
payroll tax payable by the employer under the
corresponding applied law.
(2) In this section
"Commonwealth Act" means the
Commonwealth Places (Mirror Taxes)
Act 1998 of the Commonwealth;
"Commonwealth place wages" means wages
that would be taxable wages within the
meaning of the corresponding applied
law if the corresponding applied law
applied in relation to each place in this
18
Payroll Tax Act 2008
Act No. of
Part 2 Imposition of Payroll Tax s. 12
jurisdiction that is a Commonwealth
place;
"corresponding applied law" means the
provisions of the Payroll Tax Act 2008
that would apply in relation to each place
in this jurisdiction that is a
Commonwealth place, pursuant to
section 6(2) of the Commonwealth Act,
if those provisions were "excluded
provisions" within the meaning of
section 6(1) of the Commonwealth Act.
19
Payroll Tax Act 2008
Act No. of
s. 13 Part 3 Wages
PART 3 WAGES
Division 1 General concept of wages
13. What are wages?
(1) For the purposes of this Act, "wages" mean
wages, remuneration, salary, commission,
bonuses or allowances paid or payable to an
employee, including
(a) an amount paid or payable by way of
remuneration to a person holding an
office under the Crown or in the service
of the Crown; and
(b) an amount paid or payable under any
prescribed classes of contracts to the
extent to which that payment is
attributable to labour; and
(c) an amount paid or payable by a company
by way of remuneration to or in relation
to a director of that company; and
(d) an amount paid or payable by way of
commission to an insurance or time-
payment canvasser or collector; and
(e) an amount that is included as or taken to
be wages by any other provision of this
Act.
(2) For the purposes of this Act, wages,
remuneration, salary, commission, bonuses or
allowances are wages
20
Payroll Tax Act 2008
Act No. of
Part 3 Wages s. 14
(a) whether paid or payable at piece work
rates or otherwise; and
(b) whether paid or payable in cash or in
kind.
Division 2 Fringe benefits
14. Wages include fringe benefits
(1) For the purposes of this Act, "wages" include a
fringe benefit.
(2) Subsection (1) does not apply to benefits that are
exempt benefits for the purposes of the FBTA
Act (other than deposits to the Superannuation
Holding Accounts Special Account within the
meaning of the Small Superannuation Accounts
Act 1995 of the Commonwealth).
15. Value of wages comprising fringe benefits
(1) For the purposes of this Act, the value of wages
comprising a fringe benefit is to be determined
in accordance with the formula
where
"TV" is the value that would be the taxable
value of the benefit as a fringe benefit for
the purposes of the FBTA Act;
21
Payroll Tax Act 2008
Act No. of
s. 16 Part 3 Wages
"FBT rate" is the rate of fringe benefits tax
imposed by the FBTA Act that applies
when the liability to payroll tax under
this Act arises.
(2) In this Act, a reference to taxable wages that
were paid or payable by an employer during a
month is, in relation to taxable wages comprising
fringe benefits
(a) a reference to the value of the fringe
benefits paid or payable by the employer
during the month; or
(b) if an election by the employer is in force
under section 16, a reference to an
amount calculated in accordance with
that section.
(3) In this Act, a reference to taxable wages that
were paid or payable by an employer during a
year is, in relation to taxable wages comprising
fringe benefits, a reference to an amount
calculated by adding together the amounts under
subsection (2)(a) or (b) (or subsection (2)(a) and
(b)), as the case requires, for the months of that
year.
16. Employer election regarding taxable value of fringe
benefits
(1) An employer who has paid or is liable to pay
fringe benefits tax imposed by the FBTA Act in
respect of a period of not less than 15 months
before 30 June in any year may elect to include
22
Payroll Tax Act 2008
Act No. of
Part 3 Wages s. 16
as the value of the fringe benefits paid or
payable by the employer during the month
concerned
(a) in a return lodged in relation to each of
the first 11 months occurring after
30 June in that year, 1/12 of the amount
determined in accordance with
subsection (2) or that part of that amount
as, in accordance with section 10,
comprises taxable wages for the year of
tax (within the meaning of the FBTA
Act) ending on 31 March preceding the
commencement of the current financial
year; and
(b) in the return lodged in relation to the
12th month, the amount determined in
accordance with subsection (2) or that
part of that amount as, in accordance
with section 10, comprises taxable wages
for the year of tax (within the meaning of
the FBTA Act) ending on 31 March
preceding that month, less the total of the
amounts of fringe benefits included in
the returns for each of the preceding 11
months.
(2) The amount determined in accordance with this
subsection is to be determined in accordance
with the formula
where
23
Payroll Tax Act 2008
Act No. of
s. 16 Part 3 Wages
"AFBA" is the aggregate fringe benefits
amount within the meaning of section
136 of the FBTA Act;
"FBT rate" is the rate of fringe benefits tax
imposed by the FBTA Act that applies
when the liability to payroll tax under
this Act arises.
(3) An election under subsection (1) takes effect
when it is notified to the Commissioner in the
form approved by the Commissioner.
(4) After an employer has made an election under
subsection (1), the employer must lodge returns
containing amounts calculated in accordance
with the election unless the Commissioner
approves, by notice in writing given to the
employer, the termination of the election and
allows the employer to include the value referred
to in section 15(2)(a).
(5) If an employer ceases to be liable to pay payroll
tax, the value of taxable wages comprising fringe
benefits to be included in the employer's final
return is (irrespective of whether or not the
employer has made an election under
subsection (1)) the value of the fringe benefits
paid or payable by the employer for the period
commencing on and including the preceding
1 July until the date on which the employer
ceases to be liable to payroll tax, less the value
of the fringe benefits paid or payable by the
employer during that period on which payroll tax
has been paid.
24
Payroll Tax Act 2008
Act No. of
Part 3 Wages s. 17
Division 3 Superannuation contributions
17. Wages include superannuation contributions
(1) For the purposes of this Act, "wages" include a
superannuation contribution.
(2) A "superannuation contribution" is a
contribution paid or payable by an employer in
respect of an employee
(a) to or as a superannuation fund within the
meaning of the Superannuation Industry
(Supervision) Act 1993 of the
Commonwealth; or
(b) as a superannuation guarantee charge
within the meaning of the
Superannuation Guarantee
(Administration) Act 1992 of the
Commonwealth; or
(c) to or as any other form of
superannuation, provident or retirement
fund or scheme including
(i) the Superannuation Holding
Accounts Special Account within
the meaning of the Small
Superannuation Accounts Act
1995 of the Commonwealth; and
(ii) a retirement savings account
within the meaning of the
Retirement Savings Accounts Act
1997 of the Commonwealth; and
25
Payroll Tax Act 2008
Act No. of
s. 17 Part 3 Wages
(iii) a wholly or partly unfunded fund
or scheme.
(3) Setting aside any money or anything that is
worth money as, or as part of, a superannuation
fund, superannuation guarantee charge or any
other form of superannuation, provident or
retirement fund or scheme is taken to be paying
a superannuation contribution.
(4) Making a superannuation contribution of
anything that is worth money is taken to be
paying a superannuation contribution of the
amount equal to its value, and its value is to be
worked out in accordance with section 43 as if
that section referred to the contribution instead
of to wages.
(5) A superannuation, provident or retirement fund
or scheme is unfunded to the extent that money
paid or payable by an employer in respect of an
employee covered by the fund or scheme is not
paid or payable during the employee's period of
service with the employer.
(6) In this section
"employee" includes any person to whom, by
virtue of a paragraph of the definition of
"wages" in section 13(1), an amount paid
or payable in the circumstances referred
to in that paragraph constitutes wages.
26
Payroll Tax Act 2008
Act No. of
Part 3 Wages s. 18
Division 4 Shares and options
18. Inclusion of grant of shares and options as wages
(1) For the purposes of this Act, "wages" include the
grant of a share or option to an employee by an
employer in respect of services performed by the
employee.
(2) Any such wages are taken, for the purpose of the
imposition of payroll tax, to be paid or payable
on the relevant day.
(3) For the purposes of this Division, the "relevant
day" is the day that the employer elects in
accordance with this Division to treat as the day
on which the wages are paid or payable.
(4) To avoid doubt, the grant of a share or option is
valuable consideration for the purposes of
section 46.
19. Choice of relevant day
(1) The employer can elect to treat as the "relevant
day" either the date on which the share or option
is granted to the employee or the vesting date.
(2) A share or option is "granted" to a person in the
following circumstances:
(a) in the case of a share, if the person
acquires the share (within the meaning of
section 139G of the Income Tax
Assessment Act 1936 of the
27
Payroll Tax Act 2008
Act No. of
s. 20 Part 3 Wages
Commonwealth) or in the circumstances
prescribed by the regulations under this
Act;
(b) in the case of an option, if the person
acquires a right (within the meaning of
section 139G of the Income Tax
Assessment Act 1936 of the
Commonwealth) to the share to which
the option relates or in the circumstances
prescribed by the regulations under this
Act.
(3) The "vesting date" in respect of a share is the
date on which the share vests in the employee
(that is, when any conditions applying to the
grant of the share have been met and the
employee's legal or beneficial interest in the
share cannot be rescinded).
(4) The "vesting date" in respect of an option is one
of the following dates (whichever happens first):
(a) the date on which the share to which the
option relates is granted to the employee;
(b) the date on which the employee exercises
a right under the option to have the share
the subject of the option transferred to,
allotted to or vest in him or her.
20. Deemed choice of relevant day in special cases
(1) If an employer grants a share or an option to an
employee and the value of the grant of the share
28
Payroll Tax Act 2008
Act No. of
Part 3 Wages s. 21
or option is not included in the taxable wages of
the employer for the financial year in which the
share or option was granted, the employer is
taken to have elected to treat the wages
constituted by the grant of that share or option as
being paid or payable on the vesting date.
(2) If an employer grants a share or an option to an
employee and the value of the grant of the share
or option is nil or, if the employer were to elect
to treat the date of grant as the relevant day, the
wages constituted by the grant would not be
liable to payroll tax, the employer is taken to
have elected to treat the wages constituted by the
grant of that share or option as being paid or
payable on the date on which the share or option
was granted.
21. Effect of rescission, cancellation of share or option
(1) If the grant of a share or option is withdrawn,
cancelled or exchanged before the vesting date
for any valuable consideration (other than the
grant of other shares or options), the following
provisions apply:
(a) the date of withdrawal, cancellation or
exchange is taken to be the vesting date
of the share or option;
(b) the market value of the share or option,
on the vesting date, is taken to be the
amount of the valuable consideration
(and, accordingly, that amount is the
29
Payroll Tax Act 2008
Act No. of
s. 22 Part 3 Wages
amount paid or payable as wages on that
date).
(2) If an employer includes the value of a grant of a
share or option in the taxable wages of the
employer for a financial year and the grant is
rescinded because the conditions attaching to the
grant were not met, the taxable wages of the
employer, in the financial year in which the
grant is rescinded, are to be reduced by the value
of the grant as previously included in the taxable
wages of the employer.
(3) Subsection (2) does not apply just because an
employee fails to exercise an option or to
otherwise exercise his or her rights in respect of
a share or option.
22. Grant of share pursuant to exercise of option
The grant of the share by an employer does not
constitute wages for the purposes of this Act if
the employer is required to grant the share as a
consequence of the exercise of an option by a
person and
(a) the grant of the option to the person
constitutes wages for the purposes of this
Act; or
(b) the option was granted to the person
before 1 July 2008.
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23. Value of shares and options
(1) If the grant of a share or option constitutes
wages under this Division, the amount paid or
payable as wages is taken, for the purposes of
this Act, to be the market value of the share or
option (expressed in Australian currency) on the
relevant day, less the consideration (if any) paid
or given by the employee in respect of the share
or option (other than consideration in the form of
services performed).
(2) The market value of a share or option on the
relevant day is to be determined in accordance
with the Commonwealth income tax provisions.
(3) For that purpose, the Commonwealth income tax
provisions apply with the following
modifications, and any other necessary
modifications:
(a) the market value of an option is to be
determined as if it were a right to acquire
a share;
(b) a reference to a taxpayer is to be read as
a reference to the employee;
(c) a reference to the Commissioner of
Taxation is to be read as a reference to
either that Commissioner or the
Commissioner.
(4) Section 15 does not apply to the grant of a share
or option that constitutes wages, even if it
constitutes a fringe benefit.
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(5) In this section
"Commonwealth income tax provisions"
means the provisions of Subdivision F of
Division 13A of Part III of the Income
Tax Assessment Act 1936 of the
Commonwealth.
24. Inclusion of shares and options granted to directors
as wages
(1) For the purposes of this Act, "wages" include the
grant of a share, or option, by a company to a
director of the company by way of remuneration
for the appointment or services of the director
that would be wages under this Division if the
director were an employee of the company.
(2) For that purpose, the other provisions of this
Division apply in respect of any such grant as if
a reference to the employer were a reference to
the company and a reference to the employee
were a reference to the director of the company.
(3) In this section, a reference to a director of the
company includes a reference to the following:
(a) a person who, under a contract or other
arrangement, is to be appointed as a
director of the company;
(b) a former director of the company.
(4) In the case of wages constituted by the grant of a
share or option by a company to a director of the
company by way of remuneration for the
32
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appointment of the director, but not for services
performed
(a) the grant of the share or option is taken,
for the purposes of this Act, to be paid or
payable for services performed during
the month in which the relevant day
occurs; and
(b) a reference in this Act to the place or
places where services are performed is a
reference to the place or places where it
may reasonably be expected that the
services of the director in respect of the
company will be performed.
25. When services considered to have been performed
For the purposes of this Act, if the grant of a
share or an option constitutes wages for the
purposes of this Act, the services in respect of
which those wages are paid or payable are taken
to have been performed during the month in
which the relevant day occurs.
26. Place where wages are payable
(1) The wages constituted by the grant of the share
or option are taken to be paid or payable in this
jurisdiction if the share is a share in a local
company or, in the case of an option, an option
to acquire shares in a local company.
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(2) In any other case, the wages constituted by the
grant of the share or option are taken to be paid
or payable outside this jurisdiction.
Note: If the wages concerned are taken to be payable outside this
jurisdiction, because the shares concerned are shares in a company
that is not a local company, the grant of the share or option may
still be liable to payroll tax under this Act if the grant is made for
services performed or rendered wholly or mainly in this
jurisdiction (see section 10(1)(b) and (c)).
(3) In this section
"local company" means
(a) a company incorporated or taken
to be incorporated under the
Corporations Act 2001 of the
Commonwealth that is taken to
be registered in this jurisdiction
for the purposes of that Act; or
(b) any other body corporate that is
incorporated under an Act of this
jurisdiction.
Division 5 Termination payments
27. Definitions
In this Division
"employment termination payment"
means
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(a) an employment termination
payment within the meaning of
section 82-130 of the ITAA; or
(b) a payment that would be an
employment termination payment
within the meaning of section 82-
130 of the ITAA but for the fact
that it was received later than 12
months after the termination of a
person's employment; or
(c) a transitional termination
payment within the meaning of
section 82-10 of the Income Tax
(Transitional Provisions) Act
1997 of the Commonwealth;
"termination payment" means
(a) payment made in consequence of
the retirement from, or
termination of, any office or
employment of an employee,
being
(i) an unused annual leave
payment; or
(ii) an unused long service
leave payment; or
(iii) so much of an
employment termination
payment paid or payable
by an employer, whether
or not paid to the
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employee or to any other
person or body, that
would be included in the
assessable income of an
employee under Part 2-40
of the ITAA if the whole
of the employment
termination payment had
been paid to the
employee; or
(b) an amount paid or payable by a
company as a consequence of the
termination of the services or
office of a director of the
company, whether or not paid to
the director or to any other person
or body, that would be an
employment termination payment
if that amount had been paid or
payable as a consequence of
termination of employment; or
(c) an amount paid or payable by a
person who is an employer under
a relevant contract (within the
meaning of section 32) as a
consequence of the termination of
the supply of the services of an
employee under the contract,
whether or not paid to the
employee or to any other person,
if the amount would be an
employment termination payment
if that amount had been paid or
36
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payable as a consequence of
termination of employment;
"unused annual leave payment" has the
same meaning as in section 83-10 of the
ITAA;
"unused long service leave payment" has
the same meaning as in section 83-75 of
the ITAA.
28. Termination payments
For the purposes of this Act, "wages" include a
termination payment.
Division 6 Allowances
29. Motor vehicle allowances
(1) For the purposes of this Act, "wages", in respect
of a financial year, do not include the exempt
component of a motor vehicle allowance paid or
payable in respect of that year.
(2) Accordingly, if the total motor vehicle allowance
paid or payable to an employee in respect of a
financial year does not exceed the exempt
component, the motor vehicle allowance is not
"wages" for the purposes of this Act.
(3) If the total motor vehicle allowance paid or
payable to an employee in respect of a financial
year exceeds the exempt component (if any),
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only that amount that exceeds the exempt
component of the motor vehicle allowance is
included as "wages" for the purposes of this
Act.
(4) The "exempt component" of a motor vehicle
allowance paid or payable in respect of a
financial year is calculated in accordance with
the formula
where
"E" is the exempt component;
"K" is the number of business kilometres
travelled during the financial year;
"R" is the exempt rate.
(5) The "number of business kilometres travelled
during the financial year" ("K") is to be
determined in accordance with the continuous
recording method, or the averaging method,
whichever method is selected and used by the
employer in accordance with Part 5 of
Schedule 1.
(6) The Commissioner, by order in writing, may
approve the use, by an employer or class of
employer, of another method of determining the
number of business kilometres travelled during
the financial year (including the use of an
estimate). If so, the number of business
kilometres travelled during the financial year is
38
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to be determined in accordance with the method
approved by the Commissioner.
(7) For the purposes of this section, the "exempt
rate" for the financial year concerned is
(a) the rate prescribed by the regulations
under section 28-25 of the ITAA for
calculating a deduction for car expenses
for a large car using the "cents per
kilometre method" in the financial year
immediately preceding the financial year
in which the allowance is paid or
payable; or
(b) if no rate referred to in paragraph (a) is
prescribed, the rate prescribed by the
regulations under this Act.
30. Accommodation allowances
(1) For the purposes of this Act, "wages" do not
include an accommodation allowance paid or
payable to an employee in respect of a night's
absence from the person's usual place of
residence that does not exceed the exempt rate.
(2) If the accommodation allowance paid or payable
to an employee in respect of a night's absence
from the person's usual place of residence
exceeds the exempt rate, "wages" include that
allowance only to the extent that it exceeds the
exempt rate.
39
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(3) For the purposes of this section, the "exempt
rate" for the financial year concerned is
(a) the total reasonable amount for daily
travel allowance expenses using the
lowest capital city for the lowest salary
band for the financial year determined by
the Commissioner of Taxation of the
Commonwealth; or
(b) if no determination referred to in
paragraph (a) is in force, the rate
prescribed by the regulations.
Division 7 Contractor provisions
31. Definitions
In this Division
"contract" includes an agreement,
arrangement or undertaking, whether
formal or informal and whether express
or implied;
"relevant contract" has the meaning given in
section 32;
"re-supply" of goods acquired from a person
includes
(a) a supply to the person of goods in
an altered form or condition; and
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(b) a supply to the person of goods in
which the first-mentioned goods
have been incorporated;
"services" includes results (whether goods or
services) of work performed;
"supply" includes supply by way of sale,
exchange, lease, hire or hire-purchase,
and in relation to services includes the
providing, granting or conferring of
services.
32. What is a relevant contract?
(1) In this Division, a "relevant contract" in
relation to a financial year is a contract under
which a person (the "designated person")
during that financial year, in the course of a
business carried on by the designated person
(a) supplies to another person services for or
in relation to the performance of work; or
(b) has supplied to the designated person 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 the goods to the designated person or,
where the designated person is a member
of a group, to another member of that
group.
41
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(2) However, a "relevant contract" does not
include a contract of service or a contract under
which a person (the "designated person")
during a financial year in the course of a
business carried on by the designated person
(a) 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; or
(b) 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
performed by a person who
ordinarily performs services of
that kind to the public generally;
or
(ii) those services are of a kind
ordinarily required by the
designated person for less than
180 days in a financial year; or
(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
42
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(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; or
(iv) those services are supplied under
a contract to which
subparagraphs (i) (iii) do not
apply and the Commissioner is
satisfied that those services are
performed by a person who
ordinarily performs services of
that kind to the public generally
in that financial year; or
(c) is supplied by a person (the
"contractor") with services for or in
relation to the performance of work
under a contract to which paragraphs (a)
and (b) do not apply where the work to
which the services relate is performed
(i) by two or more persons employed
by, or who provide services for,
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the contractor in the course of a
business carried on by the
contractor; or
(ii) where the contractor is a
partnership of two or more
natural persons, by one or more
of the members of the partnership
and one 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 one
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 Commissioner determines that
the contract or arrangement 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; or
(d) is supplied with
(i) services ancillary to the
conveyance of goods by means of
a vehicle provided by the person
conveying them; or
44
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(ii) services solely for or in relation
to the procurement of persons
desiring to be insured by the
designated person; or
(iii) services for or in relation to the
door-to-door sale of goods solely
for domestic purposes on behalf
of the designated person
unless the Commissioner determines that
the contract or arrangement 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.
(3) For the purposes of this section, an employment
agency contract under which services are
supplied by an employment agent, or a service
provider is procured by an employment agent, is
not a relevant contract.
33. Persons taken to be employers
(1) For the purposes of this Act, a person
(a) who during a financial year, under a
relevant contract, supplies services to
another person; or
(b) 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
45
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(c) who during a financial year, under a
relevant contract, gives out goods to
other persons
is taken to be an employer in respect of that
financial year.
(2) If a contract is a relevant contract under both
section 32(1)(a) and (b)
(a) the person to whom, under the contract,
the services of persons are supplied for or
in relation to the performance of work is
taken to be an employer; and
(b) despite subsection (1)(a), the person who
under the contract supplies the services is
taken not to be an employer.
34. Persons taken to be employees
For the purposes of this Act, a person who
during a financial year
(a) performs work for or in relation to which
services are supplied to another person
under a relevant contract; or
(b) being a natural person, under a relevant
contract, re-supplies goods to an
employer
is taken to be an employee in respect of that
financial year.
46
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35. Amounts under relevant contracts taken to be
wages
(1) For the purposes of this Act, amounts paid or
payable by an 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
are taken to be wages paid or payable during that
financial year.
(2) If an amount referred to in subsection (1) 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 is as determined by the
Commissioner.
(3) An amount paid or payable for or in relation to
the performance of work under a relevant
contract is taken to include
(a) 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 contribution if made in
relation to a person in the capacity of an
employee; and
(b) the value of any share or option (not
otherwise included as wages under this
47
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Act) provided or liable to be provided 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
included as wages under Division 4 if
provided to a person in the capacity of an
employee.
36. Liability provisions
If, in respect of a payment for or in relation to
the performance of work that is taken to be
wages under this Division, payroll tax is paid by
a person taken under this Division to be an
employer
(a) no other person is liable to payroll tax in
respect of that payment; and
(b) if another person is liable to make a
payment for or in relation to that work,
that person is not liable to payroll tax in
respect of that payment unless it or the
payment by the first-mentioned person is
made with an intention either directly or
indirectly of avoiding or evading the
payment of tax whether by the first-
mentioned person or another person.
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Division 8 Employment agents
37. Definitions
(1) For the purposes of this Act, an "employment
agency contract" is a contract, whether formal
or informal and whether express or implied,
under which a person (an "employment agent")
procures the services of another person (a
"service provider") for a client of the
employment agent.
(2) However, a contract is not an employment
agency contract for the purposes of this Act if it
is, or results in the creation of, a contract of
employment between the service provider and
the client.
(3) In this section
"contract" includes agreement, arrangement
and undertaking.
38. Persons taken to be employers
For the purposes of this Act, the employment
agent under an employment agency contract is
taken to be an employer.
39. Persons taken to be employees
For the purposes of this Act, the person who
performs work for or in relation to which
services are supplied to the client under an
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employment agency contract is taken to be an
employee of the employment agent.
40. Amounts taken to be wages
(1) For the purposes of this Act, the following are
taken to be wages paid or payable by the
employment agent under an employment agency
contract:
(a) any amount paid or payable to or in
relation to the service provider in respect
of the provision of services in connection
with the employment agency contract;
(b) the value of any benefit provided for or
in relation to the provision of services in
connection with the employment agency
contract that would be a fringe benefit if
provided to a person in the capacity of an
employee;
(c) any payment made in relation to the
service provider that would be a
superannuation contribution if made in
relation to a person in the capacity of an
employee.
(2) Subsection (1) does not apply to an employment
agency contract to the extent that an amount,
benefit or payment referred to in that subsection
would be exempt from payroll tax under Part 4
(other than under Division 4 or 5 of that Part or
section 50) had the service provider been paid by
the client as an employee, if the client has given
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a declaration to that effect, in the form approved
by the Commissioner, to the employment agent.
41. Liability provisions
Subject to section 42, if an employment agent
under an employment agency contract
(a) by arrangement procures the services of a
service provider for a client of the
employment agent; and
(b) pays payroll tax in respect of an amount,
benefit or payment that is, under
section 40, taken to be wages paid or
payable by the employment agent in
respect of the provision of those services
in connection with that contract
no other person (including any other person
engaged to procure the services of the service
provider for the employment agent's client as
part of the arrangement) is liable to pay payroll
tax in respect of wages paid or payable for the
procurement or performance of those services by
the service provider for the client.
42. Agreement to reduce or avoid liability to payroll tax
(1) If the effect of an employment agency contract is
to reduce or avoid the liability of any party to the
contract to the assessment, imposition or
payment of payroll tax, the Commissioner may
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(a) disregard the contract; and
(b) determine that any party to the contract is
taken to be an employer for the purposes
of this Act; and
(c) determine that any payment made in
respect of the contract is taken to be
wages for the purposes of this Act.
(2) If the Commissioner makes a determination
under subsection (1), the Commissioner must
serve a notice of the determination on the person
taken to be an employer for the purposes of this
Act.
(3) The notice must set out the facts on which the
Commissioner relies and the reasons for the
determination.
(4) This section has effect in relation to agreements,
transactions and arrangements made before, on
or after the commencement of this section.
Division 9 Other
43. Value of wages paid in kind
The value of wages (except fringe benefits and
shares and options) that are paid or payable in
kind is the greater of
(a) the value agreed or attributed to the
wages in, or ascertainable for the wages
from, arrangements between the
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employer and the employee, whichever is
the greater; and
(b) if the regulations prescribe how the value
of wages of that type is to be determined,
the value determined in accordance with
the regulations.
44. GST excluded from wages
(1) If a person is liable to pay GST on the supply to
which wages paid or payable to the person
relate, the amount or value of those wages on
which payroll tax is payable is the amount or
value of the wages paid or payable to the person
minus the relevant proportion of the amount of
GST payable by the person on the supply to
which the wages relate.
(2) Subsection (1) does not apply in respect of the
value of wages comprising a fringe benefit.
(3) In this section
"consideration" has the same meaning as in
the A New Tax System (Goods and
Services Tax) Act 1999 of the
Commonwealth;
"relevant proportion", in relation to GST
payable on a supply to which wages
relate, means the proportion that the
amount or value of the wages bears to the
consideration for the supply to which the
wages relate.
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45. Wages paid by group employers
A reference in this Act 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 a group if the member were the
employer of the employee to whom the wages
were paid.
46. Wages paid by or to third parties
(1) If any of the following amounts of money or
other valuable consideration would, if paid or
given or to be paid or given directly by an
employer to an employee, be or be included as
wages paid or payable by the employer to the
employee for the purposes of this Act, they are
taken to be wages paid or payable by the
employer to the employee:
(a) any money or other valuable
consideration paid or given, or to be paid
or given, to an employee, for the
employee's services as an employee of
an employer, by a person other than the
employer;
(b) any money or other valuable
consideration paid or given, or to be paid
or given, by an employer, for an
employee's services as the employee of
the employer, to a person other than the
employee;
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(c) any money or other valuable
consideration paid or given, or to be paid
or given, by a person other than an
employer, for an employee's services as
an employee of the employer, to a person
other than the employee.
(2) If any of the following amounts of money or
other valuable consideration would, if paid or
given or to be paid or given directly by a
company to a director of the company, be or be
included as wages paid or payable by the
company to the director for the purposes of this
Act, they are taken to be wages paid or payable
by the company to the director:
(a) any money or other valuable
consideration paid or given, or to be paid
or given, to a director of a company, by
way of remuneration for the appointment
or services of the director to the
company, by a person other than the
company;
(b) any money or other valuable
consideration paid or given, or to be paid
or given, by a company, by way of
remuneration for the appointment or
services of the director to the company,
to a person other than the director;
(c) any money or other valuable
consideration paid or given, or to be paid
or given, by any person, by way of
remuneration for the appointment or
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services of a director to the company, to
a person other than the director.
(3) In this section, "director" of a company
includes
(a) a person who, under a contract or other
arrangement, is to be appointed as a
director of the company; and
(b) a former director of the company.
47. Agreement etc to reduce or avoid liability to payroll
tax
(1) If any person enters into any agreement,
transaction or arrangement, whether in writing or
otherwise, under which a natural person
performs, for or on behalf of another person,
services in respect of which any payment is
made to some other person related or connected
to the natural person performing the services and
the effect of the agreement, transaction or
arrangement is to reduce or avoid the liability of
any person to the assessment, imposition or
payment of payroll tax, the Commissioner may
(a) disregard the agreement, transaction or
arrangement; and
(b) determine that any party to the
agreement, transaction or arrangement is
taken to be an employer for the purposes
of this Act; and
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(c) determine that any payment made in
respect of the agreement, transaction or
arrangement is taken to be wages for the
purposes of this Act.
(2) If the Commissioner makes a determination
under subsection (1), the Commissioner must
serve a notice to that effect on the person taken
to be an employer for the purposes of this Act.
(3) The notice must set out the facts on which the
Commissioner relies and the reasons for the
determination.
(4) This section has effect in relation to agreements,
transactions and arrangements made before, on
or after the commencement of this section.
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s. 48 Part 4 Exemptions
PART 4 EXEMPTIONS
Division 1 Non-profit organisations
48. Non-profit organisations
(1) Subject to subsection (2), wages are exempt
wages if they are paid or payable by any of the
following:
(a) a religious institution;
(b) a public benevolent institution (but not
including an instrumentality of the
State);
(c) a non-profit organisation having wholly
charitable, benevolent, philanthropic or
patriotic purposes (but not including a
school, an educational institution, an
educational company or an
instrumentality of the State).
(2) The wages must be paid or payable
(a) for work of a kind ordinarily performed
in connection with the religious,
charitable, benevolent, philanthropic or
patriotic purposes of the institution or
body; and
(b) to a person engaged exclusively in that
kind of work.
(3) For the purposes of subsection (1)(c), an
"educational company" is a company
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(a) in which an educational institution has a
controlling interest; and
(b) that provides, promotes or supports the
educational services of that institution.
(4) For the purposes of subsection (3), an
educational institution has a "controlling
interest" in an educational company if
(a) members of the board of management of
the company who are entitled to exercise
a majority in voting power at meetings of
the board of management are accustomed
or under an obligation, whether formal or
informal, to act in accordance with the
directions, instructions or wishes of the
educational institution; or
(b) the educational institution may (whether
directly or indirectly) exercise, control
the exercise of, or substantially influence
the exercise of, more than 50% of the
voting power attached to voting shares,
or any class of voting shares, issued by
the company; or
(c) the educational institution has power to
appoint more than 50% of the members
of the board of management of the
company.
(5) In this section
"educational institution" means an entity
that provides education above secondary
level.
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s. 49 Part 4 Exemptions
Division 2 Education and training
49. Schools and educational services and training
Wages are exempt wages as provided for in
Division 1 of Part 3 of Schedule 2.
50. Community Development Employment Project
(1) Wages are exempt wages if they are paid or
payable to an Aboriginal person who is
employed under an employment project.
(2) An "employment project" is an employment
project under the Community Development
Employment Project funded by the Department
of Employment and Workplace Relations of the
Commonwealth or the Torres Strait Regional
Authority.
Division 3 Health care service providers
51. Health care service providers
(1) Subject to subsection (2), wages paid or payable
by a health care service provider are exempt
wages.
(2) The wages must be paid or payable
(a) for work of a kind ordinarily performed
in connection with the conduct of a
health care service provider; and
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(b) to a person engaged exclusively in that
kind of work.
(3) For the purposes of this section, "health care
service provider" has the meaning given in
Division 2 of Part 3 of Schedule 2.
52. Division not to limit other exemptions
(1) Nothing in this Division limits the application of
any other Division of this Part.
(2) For example, if a health care service provider is
also a non-profit organisation, the exemption for
non-profit organisations referred to in section 48
may still apply.
Division 4 Maternity and adoption leave
53. Maternity and adoption leave
(1) Wages are exempt wages if they are paid or
payable to an employee in respect of
(a) maternity leave, being leave given to a
female employee in connection with her
pregnancy or the birth of her child (other
than sick leave, recreation leave, annual
leave or any similar leave); or
(b) adoption leave, being leave given to an
employee in connection with the
adoption of a child by him or her (other
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s. 54 Part 4 Exemptions
than sick leave, recreation leave, annual
leave or any similar leave).
(2) It is immaterial whether the leave is taken during
or after the pregnancy or before or after the
adoption.
(3) The exemption is limited to wages paid or
payable in respect of a maximum of 14 weeks
maternity leave in respect of any one pregnancy
and 14 weeks adoption leave in respect of any
one adoption.
(4) For the avoidance of doubt, a reference in
subsection (3) to a period of 14 weeks leave is a
reference to
(a) a period that is the equivalent of 14
weeks leave on full pay, in the case of
full-time employees who take leave on
less than full pay; or
(b) a period of 14 weeks leave at part-time
rates of pay, in the case of part-time
employees.
(5) The exemption does not apply to any part of
wages paid or payable in respect of maternity or
adoption leave that comprises fringe benefits.
54. Administrative requirements for exemption
(1) An employer wishing to claim an exemption
under section 53 in respect of maternity leave
must obtain and keep a medical certificate in
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respect of, or statutory declaration by, the
employee
(a) stating that the employee is or was
pregnant; or
(b) stating that the employee has given birth
and the date of birth.
(2) An employer wishing to claim an exemption
under section 53 in respect of adoption leave
must obtain and keep a statutory declaration by
the employee stating
(a) that a child has been placed in the
custody of the employee pending the
making of an adoption order; or
(b) that an adoption order has been made or
recognised in favour of the employee.
Note: Section 63 of the Taxation Administration Act 1997 requires
these records to be kept for at least 5 years unless the Commissioner
authorises earlier destruction.
Division 5 Volunteer firefighters and emergency service
volunteers
55. Volunteer firefighters
Subject to section 57, wages are exempt wages if
they are paid or payable to an employee in
respect of any period when he or she was taking
part in bushfire-fighting activities as a volunteer
member of a fire brigade under the Fire Service
Act 1979.
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s. 56 Part 4 Exemptions
56. Emergency service volunteers
(1) Subject to section 57, wages are exempt wages if
they are paid or payable to an employee in
respect of any period when he or she was
engaging in emergency management or rescue
and retrieval operations as a volunteer
emergency management worker.
(2) For the purposes of subsection (1)
"emergency management" has the same
meaning as in the Emergency
Management Act 2006;
"rescue and retrieval operation" has the
same meaning as in the Emergency
Management Act 2006;
"volunteer emergency management
worker" has the same meaning as in
section 56 of the Emergency
Management Act 2006.
57. Limitation of exemption
An exemption under this Division does not apply
to wages paid or payable as recreation leave,
annual leave, long service leave or sick leave.
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Division 6 Local government
58. Local and county councils
Note. This section is contained in the Payroll
Tax Act 2007 of New South Wales. The section
does not apply in Tasmania because local
government is not exempt from payroll tax in this
State. In order to achieve uniform numbering
with the Payroll Tax Acts of New South Wales
and Victoria in accordance with the harmonised
payroll tax arrangements, this section has been
left blank.
59. Local government business entities
Note. This section is contained in the Payroll
Tax Act 2007 of New South Wales. The section
does not apply in Tasmania because local
government is not exempt from payroll tax in this
State. In order to achieve uniform numbering
with the Payroll Tax Acts of New South Wales
and Victoria in accordance with the harmonised
payroll tax arrangements, this section has been
left blank.
60. Limitation on local government exemptions
Note. This section is contained in the Payroll
Tax Act 2007 of New South Wales. The section
does not apply in Tasmania because local
government is not exempt from payroll tax in this
State. In order to achieve uniform numbering
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with the Payroll Tax Acts of New South Wales
and Victoria in accordance with the harmonised
payroll tax arrangements, this section has been
left blank.
Division 7 Other government and defence
61. State Governors
Wages paid or payable by the Governor of a
State are exempt wages.
62. Defence personnel
Wages are exempt wages if they are paid or
payable to an employee in respect of any period
when he or she was on leave from employment
because of being a member of
(a) the Defence Force of the
Commonwealth; or
(b) the armed forces of any part of the
Commonwealth of Nations.
63. War Graves Commission
Wages paid or payable by the Commonwealth
War Graves Commission are exempt wages.
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Division 8 Foreign government representatives and
international agencies
64. Consular and non-diplomatic representatives
Wages paid or payable to members of his or her
official staff by a consular or other
representative of any country in Australia (other
than a diplomatic representative) are exempt
wages.
65. Trade Commissioners
Wages paid or payable to members of his or her
official staff by a Trade Commissioner
representing any other part of the
Commonwealth of Nations in Australia are
exempt wages.
66. Australian-American Fulbright Commission
Wages paid or payable by the Australian-
American Fulbright Commission are exempt
wages.
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s. 67 Part 5 Grouping of Employers
PART 5 GROUPING OF EMPLOYERS
Division 1 Interpretation
67. Definitions
In this Part
"business" includes
(a) a profession or trade; and
(b) any other activity carried on for
fee, gain or reward; and
(c) the activity of employing one or
more persons who perform duties
in connection with another
business; and
(d) the carrying on of a trust
(including a dormant trust); and
(e) the activity of holding any money
or property used for or in
connection with another
business
whether carried on by 1 person or 2 or
more persons together;
"group" means a group constituted under this
Part, but does not include any member of
the group in respect of whom a
determination under Division 4 is in
force.
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68. Grouping provisions to operate independently
The fact that a person is not a member of a group
constituted under a provision of this Part does
not prevent that person from being a member of
a group constituted under another provision of
this Part.
Division 2 Business groups
69. Constitution of groups
A "group" is constituted by all the persons or
bodies forming a group that is not a part of any
larger group.
70. Groups of corporations
(1) Corporations constitute a group if they are
related bodies corporate within the meaning of
the Corporations Act 2001 of the
Commonwealth.
(2) For the purpose of assessing whether
corporations are related bodies corporate under
that Act, they are taken to carry on a business
and not to be trustee companies.
Note: Section 79 (Exclusion of persons from groups) allows the
Commissioner, for payroll tax purposes, to exclude persons from a
group in certain circumstances but not in the case of corporations
that are related bodies corporate.
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s. 71 Part 5 Grouping of Employers
71. Groups arising from the use of common employees
(1) If one or more employees of an employer
perform duties for or in connection with one or
more businesses carried on by the employer and
one or more other persons, the employer and
each of those other persons constitute a group.
(2) If one or more employees of an employer are
employed solely or mainly to perform duties for
or in connection with one or more businesses
carried on by one or more other persons, the
employer and each of those other persons
constitute a group.
(3) If one or more employees of an employer
perform duties for or in connection with one or
more businesses carried on by one or more other
persons, being duties performed in connection
with, or on fulfilment of the employer's
obligation under, an agreement, arrangement or
undertaking for the provision of services to any
one or more of those other persons in connection
with that business or those businesses, the
employer and each of those other persons
constitute a group.
(4) Subsection (3) applies to an agreement,
arrangement or undertaking
(a) whether the agreement, arrangement or
undertaking is formal or informal,
express or implied; and
(b) whether or not the agreement,
arrangement or undertaking provides for
duties to be performed by the employees
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or specifies the duties to be performed by
them.
Note: Section 79 (Exclusion of persons from groups) allows the
Commissioner, for payroll tax purposes, to exclude persons from a
group constituted under this section in certain circumstances.
72. Groups of commonly controlled businesses
(1) If a person or set of persons has a controlling
interest in each of 2 businesses, the persons who
carry on those businesses constitute a group.
Note: Section 79 (Exclusion of persons from groups) allows the
Commissioner, for payroll tax purposes, to exclude persons from a
group constituted under this section in certain circumstances.
(2) For the purposes of this section, a person or set
of persons has a controlling interest in a business
if
(a) in the case of 1 person, the person is the
sole owner (whether or not as trustee) of
the business; or
(b) in the case of a set of persons, the
persons are together as trustees the sole
owners of the business; or
(c) in the case of a business carried on by a
corporation
(i) the person or each of the set of
persons is a director of the
corporation and the person or set
of persons is entitled to exercise
more than 50% of the voting
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power at meetings of the directors
of the corporation; or
(ii) a director or set of directors of the
corporation that is entitled to
exercise more than 50% of the
voting power at meetings of the
directors of the corporation is
under an obligation, whether
formal or informal, to act in
accordance with the direction,
instructions or wishes of that
person or set of persons; or
(d) in the case of a business carried on by a
body corporate or unincorporated, that
person or set of persons constitute more
than 50% of the board of management
(by whatever name called) of the body or
control the composition of that board; or
(e) in the case of a business carried on by a
corporation that has a share capital, that
person or set of persons can, directly or
indirectly, exercise, control the exercise
of, or substantially influence the exercise
of, more than 50% of the voting power
attached to the voting shares, or any class
of voting shares, issued by the
corporation; or
(f) in the case of a business carried on by a
partnership, that person or set of
persons
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(i) own (whether beneficially or not)
more than 50% of the capital of
the partnership; or
(ii) is entitled (whether beneficially
or not) to more than 50% of the
profits of the partnership; or
(g) in the case of a business carried on under
a trust, the person or set of persons
(whether or not as a trustee of, or
beneficiary under, another trust) if the
beneficiary in respect of more than 50%
of the value of the interests in the first-
mentioned trust.
(3) If
(a) 2 corporations are related bodies
corporate within the meaning of the
Corporations Act 2001 of the
Commonwealth; and
(b) 1 of the corporations has a controlling
interest in a business
the other corporation has a controlling interest in
the business.
(4) If
(a) a person or set of persons has a
controlling interest in a business; and
(b) a person or set of persons who carry on
the business has a controlling interest in
another business
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the person or set of persons referred to in
paragraph (a) has a controlling interest in that
other business.
(5) If
(a) a person or set of persons is the
beneficiary of a trust in respect of more
than 50% of the value of the interests in
the trust; and
(b) the trustee of the trust (whether alone or
together with another trustee or trustees)
has a controlling interest in the business
of another trust
the person or set of persons has a controlling
interest in the business.
(6) A person who may benefit from a discretionary
trust as a result of the trustee or another person,
or the trustee and another person, exercising or
failing to exercise a power or discretion, is taken,
for the purposes of this Part, to be a beneficiary
in respect of more than 50% of the value of the
interests in the trust.
(7) If
(a) a person or set of persons has a
controlling interest in the business of a
trust; and
(b) the trustee of the trust (whether alone or
together with another trustee or trustees)
has a controlling interest in the business
of a corporation
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the person or set of persons is taken to have a
controlling interest in the business of the
corporation.
(8) If
(a) a person or set of persons has a
controlling interest in the business of a
trust; and
(b) the trustee of the trust (whether alone or
together with another trustee or trustees)
has a controlling interest in the business
of a partnership
the person or set of persons is taken to have a
controlling interest in the business of the
partnership.
73. Groups arising from tracing of interests in
corporations
(1) An entity and a corporation form part of a group
if the entity has a controlling interest in the
corporation.
Note: Section 79 (Exclusion of persons from groups) allows the
Commissioner, for payroll tax purposes, to exclude persons from a
group constituted under this section in certain circumstances.
(2) For the purposes of this section, an entity has a
"controlling interest" in a corporation if the
corporation has share capital and
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(a) the entity has a direct interest in the
corporation and the value of that direct
interest exceeds 50%; or
(b) the entity has an indirect interest in the
corporation and the value of that indirect
interest exceeds 50%; or
(c) the entity has an aggregate interest in the
corporation and the value of the
aggregate interest exceeds 50%.
(3) Division 3 applies for the purposes of the
interpretation of this section.
Note: Division 3 sets out the manner for determining whether an
entity has a direct interest, indirect interest or aggregate interest in
a corporation, and the value of such an interest.
(4) In this section
"associated person" means a person who is
associated with another person in
accordance with any of the following
provisions:
(a) persons are associated persons if
they are related persons;
(b) natural persons are associated
persons if they are partners in a
partnership;
(c) private companies are associated
persons if common shareholders
have a majority interest in each
private company;
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(d) trustees are associated persons if
any person is a beneficiary
common to the trusts (not
including a public unit trust
scheme) of which they are
trustees;
(e) a private company and a trustee
are associated persons if a related
body corporate of the company
(within the meaning of the
Corporations Act 2001 of the
Commonwealth) is a beneficiary
of the trust (not including a
public unit trust scheme) of
which the trustee is a trustee;
"domestic partner" of a person means a
person to whom the person is not married
but with whom the person is living as a
couple on a genuine domestic basis
(irrespective of gender);
"entity" means
(a) a person; or
(b) 2 or more persons who are
associated persons (as defined in
this section);
"private company" means a company that is
not limited by shares, or whose shares are
not quoted on the Australian Stock
Exchange or any exchange of the World
Federation of Exchanges;
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"related person" means a person who is
related to another person in accordance
with any of the following provisions:
(a) natural persons are related
persons if
(i) one is the spouse or
domestic partner of the
other; or
(ii) the relationship between
them is that of parent and
child, brothers, sisters, or
brother and sister;
(b) private companies are related
persons if they are related bodies
corporate within the meaning of
the Corporations Act 2001 of the
Commonwealth;
(c) a natural person and a private
company are related persons if
the natural person is a majority
shareholder or director of the
company or of another private
company that is a related body
corporate of the company within
the meaning of the Corporations
Act 2001 of the Commonwealth;
(d) a natural person and a trustee are
related persons if the natural
person is a beneficiary of the trust
(not being a public unit trust
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scheme) of which the trustee is a
trustee;
(e) a private company and a trustee
are related persons if the
company, or a majority
shareholder or director of the
company, is a beneficiary of the
trust (not being a public unit trust
scheme) of which the trustee is a
trustee.
(5) For the purposes of the definition of "domestic
partner" in subsection (4), in determining
whether persons are domestic partners of each
other, all the circumstances of their relationship
are to be taken into account, including any one
or more of the matters referred to in section 4(3)
of the Relationships Act 2003 as may be relevant
in a particular case.
74. Smaller groups subsumed by larger groups
If a person is a member of 2 or more groups, the
members of all the groups together constitute a
group.
Note: Section 79 (Exclusion of persons from groups) allows the
Commissioner, for payroll tax purposes, to exclude persons from a
group constituted under this section in certain circumstances.
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Division 3 Business groups tracing of interests in
corporations
75. Application
This Division applies for the purposes of
section 73 (Groups arising from tracing of
interests in corporations).
76. Direct interest
(1) An entity has a "direct interest" in a corporation
if
(a) in the case of an entity that is a person,
the person can, directly or indirectly,
exercise, control the exercise of, or
substantially influence the exercise of,
the voting power attached to any voting
shares issued by the corporation; or
(b) in the case of an entity that is 2 or more
persons who are associated persons, each
of the associated persons can, directly or
indirectly, exercise, control the exercise
of, or substantially influence the exercise
of, the voting power attached to any
voting shares issued by the corporation.
(2) The value of the direct interest of the entity in
the corporation is the proportion (expressed as a
percentage) of the voting power of all voting
shares issued by the corporation that
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(a) in the case of an entity that is a person,
the person can directly or indirectly
exercise, control the exercise of, or
substantially influence the exercise of, as
referred to in subsection (1); or
(b) in the case of an entity that is 2 or more
persons who are associated persons, the
associated persons can, if acting together,
directly or indirectly exercise, control the
exercise of, or substantially influence the
exercise of, as referred to in
subsection (1).
77. Indirect interest
(1) An entity has an "indirect interest" in a
corporation if the corporation is linked to
another corporation (the "directly controlled
corporation") in which the entity has a direct
interest.
(2) A corporation is linked to a directly controlled
corporation if the corporation is part of a chain
of corporations
(a) that starts with the directly controlled
corporation; and
(b) in which a link in the chain is formed if a
corporation has a direct interest in the
next corporation in the chain.
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(3) The following are examples of how
subsections (1) and (2) work (the examples are
cumulative):
(a) corporation A (a directly controlled
corporation) has a direct interest in
corporation B. Corporations A and B
form part of a chain of corporations, and
corporation B is linked to corporation A.
Accordingly, an entity that has a direct
interest in corporation A also has an
indirect interest in corporation B;
(b) corporation B also has a direct interest in
corporation C. In this case, corporations
A, B and C form part of a chain of
corporations. Both corporations B and C
are linked to corporation A. The entity
that has a direct interest in corporation A
has an indirect interest in both
corporations B and C;
(c) corporation B also has a direct interest in
corporation D. There are now 2 chains of
corporations, one consisting of A, B and
C, and one consisting of A, B and D.
Corporations B, C and D are all linked to
corporation A and an entity that has a
direct interest in corporation A would
have an indirect interest in corporations
B, C and D. An entity that has a direct
interest in corporation B would have an
indirect interest in corporations C and D.
However, an entity that has a direct
interest in corporation C only would not
have an indirect interest in corporation D,
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as corporation D is not linked to
corporation C.
(4) The value of the indirect interest of an entity in a
corporation (an "indirectly controlled
corporation") that is linked to a directly
controlled corporation is calculated by
multiplying together the following:
(a) the value of the direct interest of the
entity in the directly controlled
corporation;
(b) the value of each direct interest that
forms a link in the chain of corporations
by which the indirectly controlled
corporation is linked to the directly
controlled corporation.
(5) The following are examples of how
subsection (4) works (the examples are
cumulative):
(a) an entity has a direct interest (with a
value of 80%) in corporation A.
Corporation A has a direct interest (with
a value of 70%) in corporation B. The
value of the indirect interest of the entity
in corporation B is 80% × 70% (that is,
56%). Accordingly, in this example the
entity has a controlling interest (within
the meaning of section 73 (Groups
arising from tracing of interests in
corporations)) in corporation B;
(b) corporation B also has a direct interest
(with a value of 40%) in corporation C.
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The value of the indirect interest of the
entity in corporation C is 80% × 70% ×
40% (that is, 22.4%). Accordingly, in
this example the entity does not have a
controlling interest in corporation C.
(6) It is possible for an entity to have more than one
indirect interest in a corporation. This may occur
if the corporation is linked to more than one
corporation in which the entity has a direct
interest, or if the corporation is linked to only
one corporation in which the entity has a direct
interest but is linked through more than one
chain of corporations. In that case, the entity has
an aggregate interest in the corporation (see
section 78 (Aggregation of interests)).
78. Aggregation of interests
(1) An entity has an "aggregate interest" in a
corporation if
(a) the entity has a direct interest and one or
more indirect interests in the corporation;
or
(b) the entity has more than one indirect
interest in the corporation.
(2) The value of the aggregate interest of an entity in
a corporation is the sum of the following:
(a) the value of the direct interest (if any) of
the entity in the corporation;
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(b) the value of each indirect interest of the
entity in the corporation.
(3) For example
(a) an entity has a direct interest (with a
value of 40%) in corporation B;
(b) the entity also has a direct interest (with a
value of 25%) in corporation A, which in
turn has a direct interest (with a value of
60%) in corporation B. Accordingly, the
entity also has an indirect interest in
corporation B with a value of 15% (that
is, 25% x 60%);
(c) the value of the entity's aggregate
interest in corporation B is the sum of the
direct interest (40%) and the indirect
interest (15%), which is 55%;
(d) accordingly, in this example, the entity
has a controlling interest in corporation B
(within the meaning of section 73
(Groups arising from tracing of interests
in corporations)).
Division 4 Miscellaneous
79. Exclusion of persons from groups
(1) The Commissioner may, by order in writing,
determine that a person who would, but for the
determination, be a member of a group is not a
member of the group.
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(2) The Commissioner may only make such a
determination if satisfied, having regard to the
nature and degree of ownership and control of
the businesses, the nature of the businesses and
any other matters the Commissioner considers
relevant, that a business carried on by the person,
is carried on independently of, and is not
connected with the carrying on of, a business
carried on by any other member of that group.
(3) The Commissioner cannot exclude a person from
a group if the person is a body corporate that, by
reason of section 50 of the Corporations Act
2001 of the Commonwealth, is related to another
body corporate that is a member of that group.
(4) This section extends to a group constituted by
reason of section 74 (Smaller groups subsumed
by larger groups).
(5) A determination can be expressed to take effect
on a date that is earlier than the date of the
determination.
(6) The Commissioner may by order in writing
revoke a determination that applies in respect of
a person if satisfied that the circumstances in
which a determination may be made do not
apply to the person.
(7) The revocation of a determination can be
expressed to take effect on a date that is earlier
than the date of the determination.
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80. Designated group employers
(1) The members of a group may, with the approval
of the Commissioner, designate a qualified
member of the group to be the designated group
employer for the group for the purposes of this
Act.
(2) A member of a group is a qualified member if
the member
(a) has paid during the preceding financial
year wages that exceeded $1 010 000; or
(b) is likely to pay during the current
financial year wages that are likely to
exceed that amount.
(3) If none of the members of a group is a qualified
member but the members together
(a) have paid during the preceding financial
year wages that exceeded $1 010 000; or
(b) are, in the opinion of the Commissioner,
likely to pay during the current financial
year wages that will exceed that
amount
the members may, with the approval of the
Commissioner, designate any member of the
group to be the designated group employer for
the group for the purposes of this Act.
(4) If the members of a group do not designate a
member as the designated group employer
within 7 days after the end of the month in which
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the group is established, the Commissioner may
(but is not obliged to) designate any member of
the group as the designated group employer.
(5) The designated group employer of a group stops
being the designated group employer from and
including the earlier of the following days:
(a) the first day of a return period during
which there is a change in the
membership of the group;
(b) the first day of a return period during
which the members of the group revoke
the designation.
(6) The designation of a designated group employer
under subsection (1) or (3) must be by notice in
writing.
(7) Such a notice must
(a) be executed by or on behalf of each
member of the group; and
(b) be served on the Commissioner.
81. Joint and several liability
(1) If a member of a group fails to pay an amount
that the member is required to pay under this Act
in respect of any period, every member of the
group is liable jointly and severally to pay that
amount to the Commissioner.
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(2) If 2 or more persons are jointly or severally
liable to pay an amount under this section, the
Commissioner may recover the whole of the
amount from them, or any of them, or any one of
them.
(3) If, under this section, 2 or more persons are
jointly and severally liable to pay an amount that
is payable by any one of them, each person is
also jointly and severally liable to pay
(a) any amount payable to the Commissioner
under this or any other Act in relation to
that amount, including any interest and
penalty tax; and
(b) any costs and expenses incurred in
relation to the recovery of that amount
that the Commissioner is entitled to
recover from any such person.
(4) A person who pays an amount in accordance
with the liability imposed by this section has
such rights of contribution or indemnity from the
other person or persons as are just.
(5) This section applies whether or not the person
was an employer during the relevant period.
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PART 6 ADJUSTMENTS OF TAX
82. Determination of correct amount of payroll tax
(1) For the purposes of this Part, the "correct
amount of payroll tax" payable by an employer
in respect of a financial year is the amount
determined in accordance with Schedule 1 in
respect of that financial year.
(2) This Part applies in respect of payroll tax paid or
payable whether as a group employer or as an
individual employer.
(3) If an employer is liable for payroll tax both as an
individual employer and as a group employer
(for different periods in the same financial year)
separate adjustments are to be made under this
Part in respect of any period as a group employer
and any period as an individual employer (and
for that purpose separate determinations of the
correct amount of payroll tax payable by the
employer are to be made).
(4) In this Part
"group employer" means an employer who is
a member of a group;
"individual employer" means an employer
who is not a member of a group.
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83. Annual adjustment of payroll tax
(1) If the amount of payroll tax paid or payable by
an employer when the employer made the
returns relating to a financial year is greater than
the correct amount of payroll tax payable by the
employer in respect of the financial year, the
Commissioner (on application by the employer)
is to refund to that employer an amount equal to
the difference.
(2) If the amount of payroll tax paid or payable by
an employer when the employer made the
returns relating to a financial year is less than the
correct amount of payroll tax payable by the
employer in respect of the financial year, the
employer must pay to the Commissioner as
payroll tax an amount equal to the difference.
(3) Any amount payable by an employer under this
section in respect of a financial year must be
paid within the period during which the
employer is required to lodge a return under this
Act in respect of the return period that is or
includes the month of June in that financial year.
(4) The amount of any refund payable to an
employer in respect of a financial year under this
section is to be reduced by the amount of any
other refund of payroll tax made in respect of
that financial year to that employer (whether
under this section or otherwise) before the time
of the refund under this section.
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84. Adjustment of payroll tax when employer changes
circumstances
(1) If an employer changes their circumstances
during a financial year, the employer must, if the
amount of payroll tax paid or payable by the
employer when the employer made returns
relating to the relevant period prior to the change
of circumstances is less than the correct amount
of payroll tax payable by the employer in respect
of the financial year, pay to the Commissioner as
payroll tax an amount equal to the difference.
(2) A "change of circumstances" occurs when the
employer
(a) ceases to pay or be liable to pay taxable
wages and interstate wages; or
(b) becomes a group employer (following a
period as an individual employer); or
(c) ceases to be a group employer (and
becomes an individual employer).
(3) The "relevant period" prior to a change of
circumstances is the period prior to the change
(during the financial year concerned and since
any prior change of circumstances) for which the
employer paid or was liable to pay taxable wages
or interstate wages.
(4) In calculating for the purposes of this section the
correct amount of payroll tax payable by the
employer, it is to be assumed that the wages paid
or payable by the employer during the relevant
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period are the only wages paid or payable by the
employer during the financial year concerned.
(5) Any amount payable by an employer under this
section in respect of a relevant period must be
paid within the period during which the
employer is required to lodge a return under this
Act relating to that relevant period or the last
return under this Act relating to the relevant
period.
(6) Any payroll tax paid or payable by an employer
under this section is to be included as payroll tax
paid or payable by the employer for the purposes
of the annual adjustment of payroll tax under this
Part.
Note: If an employer ceases to be a group employer during a
financial year an adjustment will be made under this section. If
later in that financial year the employer ceases to pay wages there
will be a further adjustment under this section. The first adjustment
will adjust payroll tax paid for the period as a group employer
against the correct amount of tax that should have been paid (based
on the assumption that the period as a group employer is the only
period for which the employer paid wages throughout the year).
The second adjustment will adjust payroll tax paid for the period as
an individual employer against the correct amount of tax that
should have been paid (based on the assumption that the period as
an individual employer is the only period for which the employer
paid wages throughout the year). Any amount of payroll tax paid
under this section is taken into account for the purposes of the
annual adjustment of payroll tax.
85. Special provision where wages fluctuate
If a person who did not pay and was not liable to
pay taxable wages or interstate wages for any
part of a financial year satisfies the
Commissioner that, by reason of the nature of
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the person's trade or business, the taxable wages
and interstate wages, if any, paid or payable by
the person fluctuate with different periods of the
financial year, the Commissioner may determine
that the person is to be treated for the purposes
of this Part
(a) if the person has conducted that trade or
business in Australia during the whole of
the financial year, as an employer who
pays or is liable to pay taxable wages
throughout the financial year; or
(b) if the person has conducted that trade or
business in Australia during part only of
the financial year, as an employer who
pays or is liable to pay taxable wages
throughout that last-mentioned part of
the financial year.
Note: The effect of such a determination is that when the correct
amount of payroll tax is calculated (for the purposes of a tax
adjustment provided for by this Part) the employer may receive the
benefit of the payroll tax threshold for the period for which the
employer is to be treated as paying wages, and not just for the
period for which the employer actually pays wages. Without such a
determination, an employer may only receive the benefit of a
proportion of the threshold amount that is equivalent to the
proportion of the whole financial year for which the employer
actually pays wages.
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PART 7 REGISTRATION AND RETURNS
86. Registration
(1) An employer who is not already registered must
apply for registration as an employer under this
Act if
(a) during a month the employer pays or is
liable to pay, anywhere, wages of more
than $19 423 per week that are wholly or
partly taxable wages; or
(b) the employer is a member of a group the
members of which together during a
month pay or are liable to pay, anywhere,
wages of more than $19 423 per week
that are wholly or partly taxable wages.
(2) The application for registration is to be made to
the Commissioner in a form and manner
approved by the Commissioner within 7 days
after the end of the month concerned.
(3) The Commissioner is to register the applicant as
an employer under this Act.
(4) The Commissioner may cancel the registration
of a person as an employer if satisfied that the
person has ceased to pay or to have a liability to
pay wages as described in subsection (1).
(5) If the Commissioner cancels the registration of a
person as an employer in any financial year and
that person subsequently pays or is liable to pay
taxable wages during that financial year the
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person may, despite the fact that the person is
not required to apply for registration, apply to
the Commissioner (in a form and manner
approved by the Commissioner) for registration
as an employer, and the Commissioner is then to
register the person as an employer under this
Act.
87. Returns
(1) Every employer who is registered or required to
apply for registration as an employer under this
Act must
(a) within 7 days after the end of each month
except June, lodge with the
Commissioner a return relating to that
month; and
(b) within 21 days after the end of June in
each year, lodge with the Commissioner
a return relating to that month and to the
adjustment of payroll tax paid or payable
by the employer during the financial year
ending on the close of that month.
(2) The designated group employer for a group may,
with the approval of the Commissioner, lodge a
joint return for the purposes of this section
covering specified members of the group
(including the designated group employer).
(3) If a joint return is lodged and the return would, if
lodged by a single employer, comply with this
section, each of the employers covered by the
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return is taken to have complied with this
section.
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PART 8 COLLECTION AND RECOVERY OF TAX
Division 1 Agents and trustees generally
88. Application
(1) This Division applies to an agent of or trustee for
an employer.
(2) Nothing in this Division limits or otherwise
affects the application of Part 5 to an agent or
trustee, or 2 or more persons one or more of
whom is an agent or trustee.
89. Agents and trustees are answerable
An agent or trustee is answerable as the
employer for the doing of all things that are
required to be done by or under this Act in
respect of the payment of any wages which are
subject to payroll tax under this Act.
90. Returns by agent or trustee
(1) An agent or trustee must, in respect of the wages
referred to in section 89, make the returns
required under Part 7, but in a representative
capacity only, and each return must, except as
otherwise provided by this Act, be separate and
distinct from any other.
(2) In the case of an executor or administrator, the
returns must be the same as far as practicable as
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the deceased person, if living, would have been
liable to make.
91. Liability to pay tax
(1) An agent or trustee is personally liable for tax on
the wages referred to in section 89 if
(a) after the Commissioner has required the
agent or trustee to make a return; or
(b) while the tax remains unpaid
the agent or trustee, except with the written
permission of the Commissioner, disposes of or
parts with any fund or money which comes to
the agent or trustee from or out of which tax
could legally be paid.
(2) Otherwise than as provided in subsection (1), the
agent or trustee is not personally liable to pay the
tax in a representative capacity.
(3) The agent or trustee must retain from time to
time out of any money which comes to the agent
or trustee in a representative capacity enough to
pay the tax.
(4) For the purpose of ensuring the payment of tax,
the Commissioner has the same remedies against
attachable property of any kind vested in or
under the control or management or in the
possession of the agent or trustee, as the
Commissioner has against the property of any
other person in respect of tax, and in as full and
ample a manner.
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92. Indemnity for agent or trustee
(1) An agent or trustee is indemnified for all
payments that the agent or trustee makes under
this Act or in accordance with the requirements
of the Commissioner.
(2) An agent or trustee who pays tax as agent or
trustee may recover the amount paid from the
person on whose behalf it was paid, or deduct it
from any money in the agent's or trustee's hands
belonging to that person.
Division 2 Special cases
93. Tax not paid during lifetime
(1) This section applies if, whether intentionally or
not, a person escapes full payment of tax in his
or her lifetime by reason of not having duly
made full, complete and accurate returns.
(2) The Commissioner has the same powers and
remedies against the trustees of the estate of the
person in respect of the liability to which the
person was subject as the Commissioner would
have had against the person if the person were
still living.
(3) The trustees must lodge the returns under this
Act that the Commissioner requires.
(4) The trustees are subject to tax to the same extent
as the deceased person would be subject to tax if
he or she were still living, but the Commissioner,
in any circumstances the Commissioner
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considers appropriate, may remit tax payable by
the trustees under this section by any amount.
(5) The amount of any tax payable by the trustees is
a charge on all the deceased person's estate in
their hands in priority to all other encumbrances.
94. Payment of tax by executors or administrators
(1) If, at the time of an employer's death, he or she
had not paid the whole of the tax payable up to
the date of death, the Commissioner has the
same powers and remedies for the assessment
and recovery of tax from the executors and
administrators as the Commissioner would have
had against the employer, if the employer were
alive.
(2) The executors or administrators must lodge any
of the returns referred to in Part 7 that have not
been lodged by the deceased.
95. Assessment if no probate within 6 months of death
(1) If, in respect of the estate of any deceased
employer, probate has not been granted or letters
of administration have not been taken out within
6 months after the death, the Commissioner may
make an assessment under section 18 of the
Taxation Administration Act 1997 of the tax
liability of the deceased under this Act.
(2) The Commissioner must cause notice of the
assessment to be published twice in a daily
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newspaper circulating in the State or Territory in
which the deceased resided.
(3) Any person claiming an interest in the estate of
the deceased may, within 60 days after the first
publication of notice of the assessment, lodge an
objection with the Commissioner in accordance
with Division 1 of Part 10 of the Taxation
Administration Act 1997.
(4) Subject to any amendment of the assessment by
the Commissioner or by the Supreme Court, the
assessment so made is conclusive evidence of
the indebtedness of the deceased to the
Commissioner.
(5) However, if probate of the will or letters of
administration of the estate of the deceased is or
are granted to a person after the assessment is
first published, that person may, within 60 days
after the date of the grant, lodge an objection in
accordance with Division 1 of Part 10 of the
Taxation Administration Act 1997.
96. Person in receipt or control of money for absentee
(1) This section applies to a person (the
"controller") who has the receipt, control or
disposal of money belonging to a person resident
out of Australia (the "principal") if the principal
is liable to pay tax under this Act.
(2) The controller must pay the tax payable by the
principal at the time, or within the period,
specified by the Commissioner.
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(3) A controller who pays tax in accordance with
subsection (2) may recover the amount paid
from the principal or deduct it from any money
in the controller's hands belonging to the
principal.
(4) A controller must from time to time retain out of
any money which comes to the controller on
behalf of the principal so much as is sufficient to
pay the tax which is or will become due by the
principal.
(5) A controller is personally liable for the tax
payable by the controller on behalf of the
principal if
(a) after the tax becomes payable; or
(b) after the Commissioner has required the
controller to pay the tax
the controller, except with the written permission
of the Commissioner, disposes of or parts with
any fund or money then in the controller's
possession, or which comes to the controller
from or out of which the tax could legally be
paid.
(6) Otherwise than as provided in subsection (5), a
controller is not personally liable to pay the tax
payable by the principal.
(7) A controller is indemnified for all payments
which the controller makes under this Act or in
accordance with the requirements of the
Commissioner.
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97. Agent for absentee principal winding-up business
(1) If an agent for an absentee principal has been
required by the principal to wind-up the
principal's business, the agent must notify the
Commissioner of the intention to wind-up the
business before taking any steps to wind it up.
Penalty: Fine not exceeding 5 penalty units.
(2) After receiving notice under subsection (1), the
Commissioner may notify the agent in writing
of
(a) the amount (if any) of payroll tax for
which the principal is liable; and
(b) the date (at least 21 days after the notice
is given) by which the tax must be paid.
(3) An agent who is given notice under
subsection (2) must
(a) set aside an amount out of the assets of
the principal's business that is sufficient
to pay the tax; and
(b) pay the tax to the Commissioner by the
date specified in the notice.
Penalty: Fine not exceeding 5 penalty units.
(4) If an agent contravenes this section, the agent is
personally liable for any tax that becomes
payable in respect of the principal's business.
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98. Recovery of tax paid on behalf of another person
A person who, under the provisions of this Act,
pays any tax for or on behalf of another person is
entitled to recover the amount so paid from the
other person as a debt, together with the costs of
recovery, or to retain or deduct that amount out
of any money in the person's hands belonging or
payable to the other person.
99. Liquidator to give notice
(1) Within 14 days after becoming liquidator of a
company that has been an employer registered or
required to be registered under this Act, the
liquidator must give the Commissioner notice in
writing of the liquidator's appointment.
(2) As soon as practicable after receiving the notice,
the Commissioner must notify the liquidator of
the amount that appears to the Commissioner to
be sufficient to provide for any tax which is or
will become payable by the company.
(3) The liquidator
(a) must not without leave of the
Commissioner part with any of the assets
of the company until the liquidator has
been so notified; and
(b) must set aside out of the assets available
for the payment of the tax, assets to the
value of the amount so notified, or the
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whole of the assets so available if they
are of less than that value; and
(c) is, to the extent of the value of the assets
which the liquidator is so required to set
aside, liable as trustee to pay the tax.
(4) A liquidator must not fail
(a) to comply with this section; or
(b) as trustee duly to pay the tax for which
the liquidator is liable under
subsection (3).
Penalty: Fine not exceeding 50 penalty units.
(5) If a liquidator commits an offence against
subsection (4), the liquidator is personally liable
to pay the tax, to the extent of the value of the
assets of which the liquidator has taken
possession and which are, or were at any time,
available to the liquidator for the payment of the
tax.
(6) If more than one person is appointed as
liquidator or required by law to carry out the
winding-up of a company
(a) the obligations and liabilities attaching to
a liquidator under this section attach to
each of those persons; and
(b) if any one of those persons has paid the
tax due in respect of the company being
wound-up, the others are each liable to
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pay that person that person's equal share
of the amount of the tax so paid.
(7) Despite anything in this section, all costs,
charges and expenses that, in the
Commissioner's opinion, have been properly
incurred by a liquidator in the winding-up of a
company, including the remuneration of the
liquidator, may be paid out of the assets of the
company in priority to any tax payable in respect
of the company.
(8) Nothing in this section
(a) limits the liability of a liquidator under
section 91; or
(b) affects any of the provisions of the
Corporations Act 2001 of the
Commonwealth.
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PART 9 GENERAL
100. Provisions specific to this jurisdiction
Schedule 2, which contains provisions that are
applicable only to this jurisdiction, has effect.
101. Regulations
(1) The Governor may make regulations, not
inconsistent with this Act, for or with respect to
any matter that by this Act is required or
permitted to be prescribed or that is necessary or
convenient to be prescribed for carrying out or
giving effect to this Act.
(2) In particular, the Governor may make
regulations for or with respect to the following:
(a) the manner of making any application to
the Commissioner under this Act;
(b) the evidence that the Commissioner may
require for the purpose of determining
whether or not
(i) an employer was an employer for
part only of a financial year; or
(ii) a person was a member of a
group at any time or during any
period;
(c) the signing of returns, applications,
notices, statements or forms by or on
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behalf of employers and deeming any
return, application, notice, statement or
form signed on behalf of an employer to
have been signed by the employer;
(d) the authentication of any certificate,
notice or other document issued for the
purpose of this Act or any regulation.
(3) A regulation may create an offence punishable
by a penalty not exceeding 20 penalty units.
102. Nature of proceedings for offences
Proceedings for an offence under this Act or the
regulations may be dealt with summarily before
a court of petty sessions.
103. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990
(a) the administration of this Act is assigned
to the Treasurer; and
(b) the department responsible to the
Treasurer in relation to the administration
of this Act is the Department of Treasury
and Finance.
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104. Savings, transitional and other provisions
Schedule 3 has effect.
105. Consequential Amendments
The legislation specified in Schedule 4 is
amended as specified in that Schedule.
106. Legislation repealed
The legislation specified in Schedule 5 is
repealed.
107. Legislation rescinded
The legislation specified in Schedule 6 is
rescinded.
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SCHEDULE 1 CALCULATION OF PAYROLL TAX
LIABILITY FOR FINANCIAL YEAR COMMENCING
1 JULY 2008 AND SUBSEQUENT FINANCIAL YEARS
Sections 8 and 82
PART 1 INTERPRETATION
1. Definitions
In this Schedule
"financial year" means the financial year
commencing on 1 July 2008 or on 1 July
in any subsequent financial year;
"R" is 6.1%;
"relevant financial year" means the financial
year to which the calculation of the
relevant payroll tax relates;
"TA" or "threshold amount" is $1 010 000.
PART 2 EMPLOYERS WHO ARE NOT MEMBERS
OF A GROUP
2. Application of Part
This Part applies only to an employer who is not
a member of a group.
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3. Definitions
In this Part
"C" is the number of days in the relevant
financial year in respect of which the
employer paid or was liable to pay
taxable wages or interstate wages
(otherwise than as a member of a group);
"IW" represents the total interstate wages
paid or payable by the employer
concerned (otherwise than as a member
of a group) during the relevant financial
year;
"TW" represents the total taxable wages paid
or payable by the employer concerned
(otherwise than as a member of a group)
during the relevant financial year.
4. Payroll of employer not more than threshold
An employer is not liable to pay payroll tax for a
financial year if the total taxable wages and
interstate wages paid or payable by the employer
(otherwise than as a member of a group) during
that year is not more than the "employer's
threshold amount", being the amount
calculated in accordance with the following
formula:
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5. Payroll of employer over threshold
If the total taxable wages and interstate wages
paid or payable by an employer (otherwise than
as a member of a group) during a financial year
is more than the employer's threshold amount,
the employer is liable to pay as payroll tax for
that year the amount of dollars calculated in
accordance with the following formula:
PART 3 GROUPS WITH A DESIGNATED GROUP
EMPLOYER
6. Application of Part
This Part applies only to an employer who is a
member of a group for which there is a
designated group employer.
7. Definitions
In this Part
"C" is the number of days in the relevant
financial year in respect of which at least
one member of the group paid or was
liable to pay (as a member of the group)
taxable wages or interstate wages;
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"GIW" represents the total interstate wages
paid or payable by the group concerned
during the relevant financial year;
"GTW" represents the total taxable wages
paid or payable by the group concerned
during the relevant financial year;
"TW" represents the total taxable wages paid
or payable by the employer concerned (as
a member of the group) during the
relevant financial year.
8. Payroll of group not more than threshold
None of the members of a group is liable to pay
payroll tax for the financial year if the total
taxable wages and interstate wages paid or
payable by the group during that year is not
more than the "group threshold amount", being
the amount calculated in accordance with the
following formula:
9. Payroll of group over threshold
(1) If the total taxable wages and interstate wages
paid or payable by a group during the financial
year is more than the group threshold amount,
payroll tax is payable as provided by
subclauses (2) and (3).
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(2) The designated group employer for the group is
liable to pay as payroll tax for the financial year
the amount of dollars calculated in accordance
with the following formula:
(3) Each member of the group (other than that
designated group employer) is liable to pay as
payroll tax for the financial year the amount of
dollars calculated in accordance with the
following formula:
PART 4 GROUPS WITH NO DESIGNATED GROUP
EMPLOYER
10. Application of Part
This Part applies only to an employer who is a
member of a group for which there is no
designated group employer.
11. Definitions
In this Part
"TW" represents the total taxable wages paid
or payable by the employer concerned (as
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a member of the group) during the
relevant financial year.
12. Calculation of payroll tax
Each member of the group is liable to pay as
payroll tax for the financial year the amount of
dollars calculated in accordance with the
following formula:
PART 5 MOTOR VEHICLE ALLOWANCES
13. Continuous recording method
If an employer selects the continuous recording
method for the purposes of determining the
number of business kilometres travelled during
the financial year, the following details are
required to be recorded by the employer:
(a) the odometer readings at the beginning
and end of each business journey
undertaken by the person during a
financial year by means of a motor
vehicle provided or maintained by the
person;
(b) the specific purpose for which each such
business journey was taken;
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(c) the distance travelled by the person
during the financial year in the course of
all such business journeys (which is
taken to be the "number of business
kilometres travelled during the
financial year"), calculated on the basis
of the odometer readings referred to in
paragraph (a).
14. Averaging method
(1) If an employer selects the averaging method for
the purposes of determining the number of
business kilometres travelled during the financial
year, the following details are required to be
recorded by the employer:
(a) the odometer readings at the beginning
and end of each business journey
undertaken by the person during the
relevant 12-week period by means of a
motor vehicle provided or maintained by
the person;
Note: Clause 15 defines the relevant 12-week period.
(b) the specific purpose for which each such
business journey was taken;
(c) the distance travelled by the person
during the relevant 12-week period in the
course of all such business journeys,
calculated on the basis of the odometer
readings referred to in paragraph (a);
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(d) the odometer readings at the beginning
and end of the relevant 12-week period
for each motor vehicle provided or
maintained by the person for the purpose
of undertaking business journeys;
(e) the distance travelled by each such
vehicle during the relevant 12-week
period, calculated on the basis of the
odometer readings referred to in
paragraph (d);
(f) the distance travelled by the person in the
course of business journeys undertaken
by means of each such vehicle during the
relevant 12-week period, calculated as a
percentage of the distance travelled by
that vehicle during that period (the
"relevant percentage");
(g) the odometer readings at the beginning
and end of the financial year for each
vehicle provided or maintained by the
person for the purpose of undertaking
business journeys;
(h) the distance travelled by each such
vehicle during the financial year,
calculated on the basis of the odometer
readings referred to in paragraph (g);
(i) the distance travelled by the person in the
course of business journeys undertaken
by means of each such vehicle during the
financial year (which is taken to be the
"number of business kilometres
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travelled during the financial year"),
calculated on the basis that the
percentage of that distance that was
travelled by the person in the course of
business journeys undertaken by means
of each such vehicle during the financial
year is the same as the relevant
percentage.
(2) For the next succeeding 4 financial years after
the first financial year in which odometer details
are recorded in accordance with subclause (1),
an employer is not required to calculate the
relevant percentage, or record the details referred
to in subclause (1)(a) (f), for the person but is
required to record the other details referred to in
that subclause.
(3) Accordingly, for the next succeeding 4 financial
years after the first financial year in which
odometer details are recorded in accordance with
subclause (1), the number of business kilometres
travelled during the financial year is to be
calculated (as referred to in subclause (1)(i)) on
the basis of the relevant percentage calculated
for the first financial year.
(4) Despite subclauses (2) and (3), an employer is
required to calculate the relevant percentage for
a financial year, and record the details referred to
in subclause (1)(a) (f), if
(a) the Commissioner serves a notice on the
employer before the commencement of a
financial year during that period directing
the employer to keep the details referred
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to in subclause (1)(a) (f) for that
financial year; or
(b) the employer wishes to use the recording
method referred to in this clause for one
or more additional motor vehicles used
by the person in any financial year or for
any other reason.
(5) In a situation referred to in subclause (4), the
new record for the financial year replaces the
relevant percentage details previously recorded
and subclauses (2) and (3) apply in relation to
the new record for the financial year as if it were
the first financial year in which odometer details
were recorded.
(6) An employer who has adopted and employed the
method of recording referred to in subclauses (2)
and (3) for a person for 4 successive financial
years must, in the next succeeding financial year,
make a fresh recording of all the details specified
in subclause (1) if the employer intends to
continue to use the same method of recording for
the person. Subclauses (2) and (3) then apply in
relation to the new record for the financial year
as if it were the first financial year in which
odometer details were recorded.
(7) If the odometer of a motor vehicle is replaced or
recalibrated during any period for which its
readings are relevant for the purposes of this
clause, the odometer readings immediately
before and after the replacement or recalibration
are to be recorded.
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15. Meaning of relevant 12-week period
(1) In clause 14, "relevant 12-week period" means
a continuous period of at least 12 weeks,
selected by the employer, throughout which a
motor vehicle is provided or maintained by a
person. If the motor vehicle is provided or
maintained for less than 12 weeks, the period
must be the entire period for which the motor
vehicle is provided or maintained.
(2) The period may overlap the start or end of the
financial year, so long as it includes part of the
year.
(3) If the averaging method is used for 2 or more
motor vehicles for the same financial year, the
odometer readings for those motor vehicles must
cover periods that are concurrent.
16. Replacing one motor vehicle with another motor
vehicle
(1) For the purposes of using the averaging method,
an employer may nominate one motor vehicle as
having replaced another motor vehicle with
effect from a day specified in the nomination.
(2) After the nomination takes effect, the
replacement motor vehicle is treated as the
original motor vehicle, and the original motor
vehicle is treated as a different motor vehicle.
An employer need not repeat for the replacement
vehicle the steps already taken for the original
motor vehicle.
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(3) An employer must record the nomination in
writing in the financial year in which the
nomination takes effect.
(4) However, the Commissioner may allow an
employer to record the nomination at a later
time.
17. Changing method or recording
(1) An employer may change from using the
averaging method to using the continuous
recording method with effect from the beginning
of a financial year if the employer complies with
clause 13 in respect of the financial year.
(2) An employer may change from using the
continuous recording method to using the
averaging method with effect from the beginning
of a financial year if the employer complies with
clause 14 in respect of the financial year.
18. Definition
In this Part
"business journey" means
(a) a journey undertaken in a motor
vehicle by a person otherwise
than in the application of the
vehicle to a private use, being an
application that, if the person is
paid a motor vehicle allowance
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for that use, results in the
provision of a fringe benefit
(within the meaning of the FBTA
Act) by the employer; or
(b) a journey undertaken in a motor
vehicle by a person in the course
of producing assessable income
of the person (within the meaning
of the Income Tax Assessment Act
1936 of the Commonwealth).
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SCHEDULE 2 TASMANIA-SPECIFIC PROVISIONS
Sections 8 and 100
PART 1 INTRODUCTION
1. Introduction to Schedule
This Schedule sets out provisions that apply only
in this jurisdiction.
PART 2 CALCULATION OF PAYROLL TAX
2. Calculation by reference to return period
The amount of payroll tax that an employer is
required to pay in respect of taxable wages paid
or payable by the employer in a financial year or
a part of a financial year is a proportion
(equivalent to the ratio of the number of days to
which the return relates to the number of days in
the financial year) of the payroll tax that would
be payable by the employer for the whole of that
year.
3. Amount payable for whole of financial year
For the purposes of this Part, the payroll tax that
would be payable by an employer for the whole
of a financial year is to be ascertained on the
basis of the following assumptions:
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(a) the assumption that the employer pays or
is liable to pay taxable wages for the
whole of the financial year;
(b) the assumption that the total amount of
taxable wages paid or payable by the
employer during the financial year is a
multiple (equivalent to the ratio of the
number of days in the financial year to
the number of days to which the return
relates) of the taxable wages paid or
payable by the employer during the
period to which the return relates.
PART 3 EXEMPTIONS
Division 1 Education and training
4. Schools and colleges
Wages are exempt wages if they are paid or
payable by a school or college (other than a
technical school or a technical college) that
(a) provides education at or below, but not
above, the secondary level of education;
and
(b) is carried on by a body corporate, society
or association otherwise than for the
purpose of profit or gain to the individual
members of the body corporate, society
or association and is not carried on by or
on behalf of the State of Tasmania.
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5. Exemption for non-profit group apprenticeship and
traineeship schemes
Wages are exempt wages if they are paid or
payable to an employee who is employed
(a) by a non-profit organisation that is a
training organisation registered under
section 31 of the Vocational Education
and Training Act 1994; and
(b) for the purposes of administering or
participating in a group apprenticeship or
group training scheme accredited under
section 32U of the Vocational Education
and Training Act 1994.
Division 2 Health care service providers
6. What is a health care service provider?
For the purposes of Division 3 of Part 4 of this
Act, a "health care service provider" is
(a) a public hospital; or
(b) a hospital that is carried on by a society
or association otherwise than for the
purposes of profit or gain to the
individual members of the society or
association.
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PART 4 GOVERNMENT BODIES SPECIAL
PROVISIONS
7. Definitions
In this Part
"Agency" means a Government department or
organisation specified for the time being
in Column 1 of Schedule 1 to the
Financial Management and Audit Act
1990;
"Government Business Enterprise" means a
statutory authority specified in Schedule
1 to the Government Business
Enterprises Act 1995;
"State authority" means a body or authority,
whether incorporated or not, that is
established or constituted under a written
law or under the royal prerogative, being
a body or authority which, or of which
the governing authority, wholly or partly
comprises a person or persons appointed
by the Governor, a Minister or another
State authority, but does not include an
Agency;
"State-owned company" means a company
incorporated under the Corporations Act
2001 of the Commonwealth that is
controlled by
(a) the Crown; or
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(b) a State authority; or
(c) another company which is itself
controlled by the Crown or a
State authority.
8. Application of this Act to Government Business
Enterprises and State-owned Companies
For the purposes of this Act, each Government
Business Enterprise and State-owned Company
is taken to be a separate employer.
9. Grouping of government departments and
organisations
The Government departments and organisations
specified for the time being in Column 1 of
Schedule 1 to the Financial Management and
Audit Act 1990 together constitute a group
constituted under Part 5 (Grouping of
Employers) of this Act.
10. Grouping of Government Business Enterprises and
State-owned Companies
For the purposes of Part 5 (Grouping of
Employers) of this Act, a Government Business
Enterprise or a State-owned Company is not a
member of the same group as another
Government Business Enterprise or State-owned
Company because of section 72.
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PART 5 RECOVERY OF PAYROLL TAX FROM
PRINCIPAL CONTRACTORS
11. Liability of principal contractor for payroll tax
payable in respect of employees of subcontractor
(1) This Part applies if
(a) a person (referred to in this Part as the
"principal contractor") has entered into
a contract for the carrying out of work by
another person (referred to in this Part as
the "subcontractor"); and
(b) employees of that subcontractor (referred
to in this Part as the "relevant
employees") are engaged in carrying out
the work; and
(c) the work is carried out in connection
with a business undertaking of the
principal contractor.
(2) If, at the end of the period of 60 days after the
end of a financial year, any payroll tax payable
by the subcontractor in respect of wages paid or
payable to the relevant employees during the
financial year for work done in connection with
the contract has not been paid, the principal
contractor is jointly and severally liable with the
subcontractor for the payment of the payroll tax.
(3) Section 56 of the Taxation Administration Act
1997 (subsection (3) excepted) applies to an
amount payable under this clause.
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Note: Section 55 of the Taxation Administration Act 1997 provides
that the amount of tax payable may be recovered by the
Commissioner as a debt due to the Crown. Section 56 of the
Taxation Administration Act 1997 provides that, if parties are
jointly and severally liable for the payment of an amount under a
taxation law, the Commissioner may recover the amount payable
from any of the parties. It also provides for the recovery of interest,
penalty tax and costs from the parties who are jointly and severally
liable for the payment of the tax.
12. Written statement relieves principal contractor of
liability
(1) The principal contractor is not liable under this
Part for the payment of any payroll tax payable
in respect of wages paid or payable to the
relevant employees during a period if the
principal contractor has been given a written
statement by the subcontractor in respect of that
period.
(2) The written statement is a statement comprising
the following statements:
(a) a statement by the subcontractor that the
subcontractor is registered as an
employer under this Act or is not
required to be registered under this Act
(whichever is applicable);
(b) a statement by the subcontractor that all
payroll tax payable by the subcontractor
in respect of wages paid or payable to the
relevant employees during any period of
the contract for work done in connection
with the contract has been paid;
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(c) a statement by the subcontractor as to
whether the subcontractor is also a
principal contractor in connection with
that work;
(d) if the subcontractor is also a principal
contractor in connection with that work,
a statement by the subcontractor as to
whether the subcontractor has been given
a written statement under this clause in
the capacity of principal contractor in
connection with that work.
(3) The written statement is to be in a form
approved by the Commissioner.
(4) The subcontractor must keep a record of a
written statement given to a principal contractor
under this clause.
Note: Section 63 of the Taxation Administration Act 1997 requires
the record to be kept for not less than 5 years after it was made.
(5) The principal contractor may withhold any
payment due to the subcontractor under the
contract until the subcontractor gives a written
statement under this clause for any period up to
the date of the statement. Any penalty for late
payment under the contract does not apply to any
payment withheld under this subclause.
(6) The written statement is not effective to relieve
the principal contractor of liability under this
Part if the principal contractor had, when given
the statement, reason to believe it was false.
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(7) A subcontractor who gives the principal
contractor a written statement knowing it to be
false is guilty of an offence.
Penalty: Fine not exceeding 100 penalty units.
13. Right of recovery
The principal contractor is entitled to recover
from the subcontractor as a debt in a court of
competent jurisdiction any payment made by the
principal contractor as a consequence of a
liability arising under this Part.
14. Application of Part
(1) This Part does not apply in relation to a contract
if the subcontractor is in receivership or in the
course of being wound up or, in the case of an
individual, is bankrupt and if payments made
under the contract are made to the receiver,
liquidator or trustee in bankruptcy.
(2) To avoid doubt, this Part extends to a principal
contractor who is the owner or occupier of a
building for the carrying out of work in
connection with the building so long as the
building is owned or occupied by the principal
contractor in connection with a business
undertaking of the principal contractor.
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PART 6 MISCELLANEOUS
15. Exemption from lodging returns
(1) If the Commissioner is of the opinion that tax
will not be payable by an employer, or, if paid,
would be refunded, the Commissioner may issue
a certificate to that employer exempting the
employer from lodging monthly returns in
accordance with section 87 and any employer to
whom such a certificate is issued may refrain
from lodging monthly returns but must, unless
the contrary is expressed in the certificate, lodge
a return relating to each financial year within 21
days after the close of that financial year.
(2) A certificate issued under this clause may be
either unconditional or subject to such conditions
as are prescribed by the regulations or as the
Commissioner thinks fit.
(3) The Commissioner may, at any time, by notice
in writing, revoke any certificate issued under
this clause.
(4) The issue of a certificate under this clause does
not exempt an employer from the payment of
any payroll tax, despite the fact that it may have
the effect of postponing the time for payment of
any payroll tax.
16. Further returns
The Commissioner may, by notice in writing,
call upon any employer or person to lodge,
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within the time specified in the notice, a return
or further or fuller return as the Commissioner
requires, whether on the person's own behalf or
as an agent or trustee.
17. Notification of change in circumstances
An employer must give the Commissioner
written notice within 14 days
(a) after a change in the employer's
(i) name; or
(ii) trading name; or
(iii) location of head office; or
(iv) postal address; or
(v) membership, if the employer is a
partnership; or
(b) after the employer ceases to
(i) pay wages as referred to in
section 86(1)(a); or
(ii) be a member of a group referred
to in section 86(1)(b); or
(c) after the employer becomes a member of
a group referred to in section 86(1)(b).
Penalty: Fine not exceeding 20 penalty units.
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SCHEDULE 3 SAVINGS, TRANSITIONAL AND
OTHER PROVISIONS
Section 104
PART 1 GENERAL
1. Regulations
(1) The regulations may contain provisions of a
savings or transitional nature consequent on the
enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so
provide, take effect from the date of Royal
Assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes
effect from a date that is earlier than the date of
its publication in the Gazette, the provision does
not operate so as
(a) to affect, in a manner prejudicial to any
person (other than the State or an
authority of the State), the rights of that
person existing before the date of its
publication; or
(b) to impose liabilities on any person (other
than the State or an authority of the
State) in respect of anything done or
omitted to be done before the date of its
publication.
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PART 2 PROVISIONS CONSEQUENT ON
ENACTMENT OF THIS ACT
2. Definition
In this Part
"old Act" means the Pay-roll Tax Act 1971 as
in force immediately before its repeal.
3. Application of this Act and old Act
(1) This Act applies to payroll tax on taxable wages
that are paid or payable on or after 1 July 2008.
(2) Despite its repeal, the old Act continues to apply
to payroll tax on taxable wages (within the
meaning of the old Act) paid or payable before
1 July 2008.
(3) The Taxation Administration Act 1997, as in
force immediately before 1 July 2008, continues
to apply on and after that day in respect of any
matter to which the old Act continues to apply
on and after that day.
4. Superannuation contributions relating to pre-
1 July 1997 service
(1) Despite anything in section 11 or 17, "wages" do
not include a superannuation contribution paid or
payable in respect of services performed by an
employee before 1 July 1997.
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(2) A superannuation contribution that is alleged by
an employer to be paid in respect of services
performed by an employee before 1 July 1997
must be evidenced to the satisfaction of the
Commissioner in the employer's records for
payroll tax purposes.
(3) In particular, the employer's records must show
the manner of calculation of the contribution and
any actuarial basis for it.
(4) For the purposes of subclause (3) and of any
assessment of payroll tax to which that subclause
is material, the certificate of a fellow or
accredited member of the Institute of Actuaries
of Australia to the effect that the actuarial basis
on which an amount is calculated is justified is
evidence and, in the absence of evidence to the
contrary, proof of that fact.
(5) If records are not kept as required by this clause,
the Commissioner is entitled to assume that a
payment of money by an employer as a
superannuation contribution on or after
1 July 1997 is an amount payable in respect of
services performed by an employee on or after
that day.
5. Superannuation payments not readily related to
particular employees
For the purposes of an assessment of payroll tax,
the Commissioner may determine
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(a) whether, and the extent to which, any
monetary or non-monetary contribution
paid or payable by an employer to a
superannuation, provident or retirement
fund or scheme that is not identified by
the employer as paid or payable in
respect of a particular employee (and
whether or not purporting to be so paid
or payable on any actuarial basis) is to be
regarded as a superannuation
contribution paid or payable in respect of
a particular employee; and
(b) the portion of any monetary or non-
monetary contribution paid by an
employer as a superannuation
contribution to a wholly or partly
unfunded fund or scheme, being money
paid in respect of an employee (or that is
to be regarded under paragraph (a) to
have been so paid) who performed
services to the employer on or after, as
well as before, 1 July 1997, that is to be
regarded as having been paid in respect
of services performed before that date.
6. Employment agents
A written statement given under section 2AB(3)
of the old Act that was in force immediately
before 1 July 2008 remains in force on and after
that day for the purposes of this Act as if it were
a declaration given under section 40(2) of this
Act.
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7. Registration of employers
An employer who was registered under section
12 of the old Act immediately before
1 July 2008 is taken, on and after that day, to be
registered under section 86 of this Act.
8. Agreements to reduce or avoid payroll tax
Sections 42 and 47 extend to an agreement,
transaction or arrangement entered into before
the commencement of those sections.
9. Recovery of payroll tax from principal contractors
Part 5 of Schedule 2 extends to contracts entered
into before the commencement of that Part.
10. General saving
Any act, matter or thing that had effect under or
for the purposes of a provision of the old Act, or
a provision of another Act repealed by this Act,
immediately before the repeal of the provision
continues to have effect under or for the
purposes of the corresponding provision of this
Act, subject to any other provision of this Part or
the regulations under this Part.
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SCHEDULE 4 CONSEQUENTIAL AMENDMENTS
Section 105
Gaming Control Act 1993
1. Section 147(2) is amended by omitting "Part
IIIA of the Pay-roll Tax Act 1971" and
substituting "Part 5 of the Payroll Tax Act
2008".
2. Section 150(4) is amended by omitting "Part
IIIA of the Pay-roll Tax Act 1971" and
substituting "Part 5 of the Payroll Tax Act
2008".
Judicial Review Act 2000
1. Clause 3 of Schedule 1 is amended by omitting
paragraph (i) and substituting the following
paragraph:
(i) Payroll Tax Act 2008;
Taxation Administration Act 1997
1. Section 4 is amended by omitting paragraph (c)
and substituting the following paragraphs:
(c) Pay-roll Tax Act 1971;
(d) Payroll Tax Act 2008.
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SCHEDULE 5 LEGISLATION REPEALED
Section 106
Pay-roll Tax Act 1971 (No. 43 of 1971)
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SCHEDULE 6 LEGISLATION RESCINDED
Section 107
Pay-roll Tax Regulations 1999 (No. 114 of 1999)
Pay-roll Tax Amendment Regulations 2005 (No. 68 of 2005)
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