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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Payroll Tax (Miscellaneous) Amendment
Bill 2012
A BILL FOR
An Act to amend the Payroll
Tax Act 2009.
Contents
Part 1—Preliminary
1Short
title
2Commencement
3Amendment
provisions
Part 2—Amendment of Payroll Tax
Act 2009
4Amendment of section
3—Interpretation
5Amendment of section 18—Inclusion of grant
of shares and options as wages
6Amendment of section 19—Choice of
relevant day
7Amendment of section 23—Value of shares
and options
8Amendment of section 24—Inclusion of
shares and options granted to directors as wages
9Amendment of
section 53—Maternity and adoption leave
10Amendment of
Schedule 3—Transitional provisions
Part 3—Transitional
provisions—Employee shares and options
1Assessment and payment of payroll
tax in relation to employee shares and options
2Determination of vesting date and value of employee
shares and options
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Payroll Tax (Miscellaneous) Amendment
Act 2012.
This Act will come into operation on 1 July 2013.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Payroll Tax
Act 2009
4—Amendment
of section 3—Interpretation
Section 3, definition of share—delete "within the
meaning of section 139GCD of the Income Tax Assessment Act 1936 of
the Commonwealth”
5—Amendment
of section 18—Inclusion of grant of shares and options as
wages
Section 18(1)—delete subsection (1) and
substitute:
(1) For the purposes of this Act, wages include the grant of
a share or an option to an employee by an employer in respect of services
performed by the employee if the share or option is an ESS interest (within
the meaning of section 83A–10 of the Income Tax Assessment
Act 1997 of the Commonwealth) and is granted to the employee under an
employee share scheme (within the meaning of that section).
Note—
A grant of a share or an option to an employee by an employer that is not
an ESS interest will be taxable as a fringe benefit under Division 2
of this Part.
6—Amendment
of section 19—Choice of relevant day
(1) Section 19(2)—delete subsection (2) and
substitute:
(2) A share or option is granted to a person
if—
(a) another person transfers the share or option to that person (other
than, in the case of a share, by issuing the share to that person); or
(b) in the case of a share—another person allots the share to that
person; or
(c) in the case of an option—another person confers the option on,
or otherwise creates the option in, that person; or
(d) the person otherwise acquires a legal interest in the share or option
from another person; or
(e) the person acquires a beneficial interest in the share or option from
another person.
(2a) To avoid doubt, if an employee acquires a right to be granted a share
or an option, or some other material benefit, at the election of the employer,
the share or option is not granted until the employer elects to grant the share
or option.
(2) Section 19(3) and (4)—delete subsections (3)
and (4) and substitute:
(3) The vesting date in respect of a share is one of the
following dates (whichever happens first):
(a) 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);
(b) the date at the end of the period of 7 years from the date on
which the share is granted to the employee.
(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 vested
in him or her;
(c) the date at the end of the period of 7 years from the date on
which the option is granted to the employee.
7—Amendment
of section 23—Value of shares and options
(1) Section 23(1)—delete “market”
(2) Section 23(2) to (5)—delete subsections (2)
to (5) (inclusive) and substitute:
(2) The value of a share or an option is:
(a) the market value; or
(b) the amount determined as provided for by the Commonwealth income tax
provisions.
(3) The employer may elect the method by which the value of a share or an
option is determined in any return lodged under this Act.
(4) However, the Commissioner may determine the method by which the value
of a share or an option is determined if the grant of the share or option is not
included as wages in a return lodged by an employer as required by this
Act.
(5) In determining the market value of a share or option, anything that
would prevent or restrict conversion of the share or option to money is to be
disregarded.
(6) The Commonwealth income tax provisions apply with the following
modifications, and any other necessary modifications:
(a) the value of an option is to be determined as if it were a right to
acquire a beneficial interest in a share;
(b) a reference to the acquisition of a beneficial interest in a share or
right is to be read as a reference to the grant of a share or an
option.
(7) In this section—
Commonwealth income tax provisions means
section 83A–315 of the Income Tax Assessment Act 1997 of
the Commonwealth and the regulations made for the purposes of that
section.
Note—
See Division 83A of the Income Tax Assessment Regulations 1997
of the Commonwealth for the relevant regulations.
8—Amendment
of section 24—Inclusion of shares and options granted to directors as
wages
(1) Section 24(1)—delete subsection (1) and
insert:
(1) For the purposes of this Act, wages include the grant of
a share or an option by a company to a director of the company who is not an
employee of the company by way of remuneration for the appointment or services
of the director.
(2) Section 24—after subsection (3) insert:
(4) However, if wages referred to in this section are fringe benefits, the
value of the wages is to be determined in accordance with Division 2 of
this Part (and not this Division).
9—Amendment
of section 53—Maternity and adoption leave
Section 53(4)—delete subsection (4) and
substitute:
(4) In subsection (3)—
(a) a reference to 14 weeks maternity leave or 14 weeks adoption
leave includes a reference to an equivalent period of leave at a reduced rate of
pay; and
(b) a reference to wages paid or payable in respect of a period of leave
is a reference to the total wages that would normally have been paid or payable
for that period of leave.
Example—
For a part-time employee, the exemption may apply to wages paid or payable
for maternity leave or adoption leave that extends to 28 weeks at half of
the part-time rate of pay that would normally apply to the employee.
10—Amendment
of Schedule 3—Transitional provisions
Schedule 3—after Part 2 insert:
Part 3—Transitional provisions—Employee
shares and options
1—Assessment and payment of payroll tax in relation
to employee shares and options
Anything done or omitted to be done by an employer in connection with the
assessment and payment of payroll tax, in respect of a month occurring after
June 2009 and before July 2013, that would have been validly done or
omitted to be done had the amendments made to this Act by the Payroll
Tax (Miscellaneous) Amendment Act 2012 been in force, is taken to
have been validly done or omitted.
Note—
This provision validates a decision by an employer to treat the grant of a
share or an option to an employee that is not an ESS interest as a fringe
benefit under Division 2 of Part 3 of this Act and to determine the
value of those fringe benefits in accordance with those provisions, rather than
by reference to Division 4 of Part 3 of this Act.
2—Determination of vesting date and value of
employee shares and options
(1) Division 4 of Part 3 of this Act continues to apply in
respect of a share or an option granted before 1 July 2013 that
constituted wages under old section 18, whether or not the grant of the
share or option would constitute wages under new section 18, if the
relevant day in relation to the grant of the share or option is not a day
occurring before 1 July 2013.
Note—
For example, a share granted before 1 July 2013 that is not an
ESS interest continues to be treated as wages under Division 4 of
Part 3 of this Act if the vesting date for the share did not occur before
1 July 2013 and the employer did not elect to treat the date of the
grant as the relevant day.
(2) The assessment amendments apply in respect of any such share or
option.
(3) Accordingly, the vesting date and the value of the share or option are
to be determined in accordance with the assessment amendments.
(4) This clause does not apply in respect of a share or an option granted
before 1 July 2013 if the liability for payroll tax in respect of the
grant is determined in accordance with Division 2 of Part 3 (as
permitted by
clause 1).
(5) In this clause—
assessment amendments means the amendments made by
sections 6 and 7 of the
Payroll
Tax (Miscellaneous) Amendment Act 2012;
new section 18 means section 18 as amended by the
Payroll
Tax (Miscellaneous) Amendment Act 2012;
old section 18 means section 18 as in force
immediately before 1 July 2013;
relevant day—see section 18(3).