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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
A BILL FOR
An Act to re-enact and modernise the law relating to payroll tax, to
harmonise payroll tax law with other States, to repeal the Pay-roll Tax
Act 1971 and for other purposes.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Interpretation
4 Taxation Administration Act
1996
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 Liability for payroll
tax not affected by subsequent amendment to Act
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
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 services
providers
51 Health services 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
Division 6—Local
government
58 Councils
59 Limitation on local government
exemptions
60 Specified activities
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
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 Returns etc to be
completed in manner approved by Commissioner
101 Regulations
Schedule 1—Calculation of payroll tax
liability
Part
1—Interpretation
1 Interpretation
Part 2—Employers who are not members of a
group
2 Application of Part
3 Interpretation
4 Payroll of
employer under threshold
5 Payroll of employer over threshold
Part 3—Groups with a designated group
employer
6 Application of Part
7 Interpretation
8 Payroll of
group under threshold
9 Payroll of group over threshold
Part 4—Motor Vehicle
Allowances
10 Continuous recording method
11 Averaging
method
12 Meaning of relevant 12-week period
13 Replacing 1 motor vehicle
with another motor vehicle
14 Changing method of
recording
15 Definition
Schedule 2—South Australia Specific
Provisions
Part 1—Introduction
1 Introduction to
Schedule
2 Interpretation
Part 2—Calculation of monthly payroll
tax
Division 1—Rate of payroll tax
3 Rate of
payroll tax
Division 2—Employers who are not members of a
group
4 Application of Division
5 Amount of payroll tax to be paid
each month
6 Deductible amount from taxable wages
Division 3—Groups with a designated group
employer
7 Application of Division
8 Amount of payroll tax to be
paid each month
9 Deductible amount for groups
Part 3—Exemptions
Division 1—Education and
training
10 Education and training
Division 2—Health services providers
11 What
is a health services provider?
Division 3—Other
exemptions
12 Hospitals
13 Family
planning
14 Kindergartens
15 Child care
16 Universities
17 Film
production
Part 4—Returns and refunds
18 Further
returns
19 Notification of change in circumstances
20 Time limit for
refund applications
Part 5—General
21 Disregarding
cents
Schedule 3—Repeal and transitional
provisions
Part 1—Repeal
1 Repeal of Pay-roll Tax
Act 1971
Part 2—Transitional
provisions
2 Interpretation
3 Savings and transitional
provisions
4 Continuation of repealed Act and regulations
5 Application of
this Act and repealed Act
6 Superannuation contributions not readily related
to particular employees
7 Registration of employers
8 Designated group
employers
9 References
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Payroll Tax Act 2009.
This Act will come into operation on 1 July 2009.
In this Act, unless the contrary intention appears—
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 South Australia has the same meaning as
coastal waters of the State has in relation to South Australia in
the Coastal Waters (State Powers) Act 1980 of the Commonwealth;
the Commissioner means the person appointed or acting as the
Commissioner of State Taxation, and includes a person appointed or acting as a
Deputy Commissioner of State Taxation (see Part 9 of the Taxation
Administration Act 1996);
company includes all bodies and associations (corporate and
unincorporate) and partnerships;
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;
council means a council or council subsidiary under the
Local Government Act 1999;
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;
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;
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;
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 the kind for which payments may be made under
Part 3 of the National Tax Reform (State Provisions) Act 2000
by a person that is an exempt 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;
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 South Australia and the coastal
waters of South Australia;
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.
4—Taxation
Administration Act 1996
This Act is to be read together with the Taxation Administration
Act 1996 which provides for the administration and enforcement of this
Act and other taxation laws.
(1) This Act binds the Crown in right of this jurisdiction and, so far as
the legislative power of the 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.
Part 2—Imposition
of payroll tax
(1) Payroll tax is imposed on all taxable wages.
(2) Payroll tax is levied and collected for the credit of the Consolidated
Account at the Treasury.
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.
The amount of payroll tax payable by an employer is to be ascertained in
accordance with Schedule 1 and Schedule 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
(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.
(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 1 other State or 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
(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 1 other State or 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 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, money order or a postal order issued by a post office.
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.
12—Liability for
payroll tax not affected by subsequent amendment to Act
A liability for payroll tax arises and will be assessed in accordance with
the provisions of this Act as in force at the time the liability arises and such
a liability, once having arisen, is not affected by a subsequent amendment to
this Act (except to the extent that the amendment operates
retrospectively).
Division 1—General
concept of 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 or benefit 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—
(a) whether paid or payable at piece work rates or otherwise;
and
(b) whether paid or payable in cash or in kind.
(3) Wages do not include anything that is prescribed by the regulations
not to be wages for the purposes of this Act.
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—
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
TV is the value that would be the taxable value of the
benefit as a fringe benefit for the purposes of the FBTA Act.
(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 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—1/12th 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—
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.
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; or
(d) involving—
(i) the crediting of an account of an employee, or any other allocation to
the benefit of an employee (other than the actual payment of a contribution), so
as to increase the entitlement or contingent entitlement of the employee under
any form of superannuation, provident or retirement fund or scheme; or
(ii) the crediting or the debiting of any other account, or any other
allocation or deduction, so as to increase the entitlement or contingent
entitlement of an employee under any form of superannuation, provident or
retirement fund or scheme.
(3) The Treasurer may estimate the contingent liability of an employer for
contributions that will be payable to or in respect of an employee who is a
member of the old or new scheme of superannuation under the Superannuation
Act 1988 or of any other unfunded or partly funded scheme of
superannuation, and the Treasurer's estimate is to be treated as a contribution
paid or payable by an employer in respect of an employee for the purposes of the
definition of superannuation contribution in
subsection (2).
(4) For the purposes of this Act, wages that are comprised of the
Treasurer's estimate of an employer's contingent liability for superannuation
contributions will be taken to be payable as soon as the contingent liability
accrues.
(5) The Treasurer's estimate must be based on an actuary's assessment of
the employer's cost of the accruing liability for the employee.
(6) 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.
(7) 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.
(8) For the purposes of this Act, where a superannuation contribution
arises under this Act because of subsection (2)(d)—
(a) subject to paragraphs (b) and (c), the amount of wages
attributable to that superannuation contribution will be taken to be the value
of the increase of the entitlement or contingent entitlement of the relevant
employee;
(b) if that superannuation contribution can be directly attributed to a
payment or setting apart of money within the ambit of paragraphs (a), (b)
or (c) of subsection (2), the value of the superannuation contribution under
paragraph (d) of subsection (2) (and therefore the relevant amount of
wages) will only be the amount (if any) by which the value of that contribution
exceeds the amount of the payment or setting apart of money (as the case may
be);
(c) if that superannuation contribution can be directly attributed to an
increase in the capital of the relevant fund or scheme or to the payment of
interest, over and above any contribution that the employer is required to make,
or would be required to make but for the increase in capital or the payment of
interest, the value of the superannuation contribution (to the extent that it
exceeds any contribution that the employer is required, or would be required, to
make as mentioned above), will be taken to be nil;
(d) if there is a crediting or a debiting of an account, or any other
allocation or deduction, and a corresponding debiting or crediting, or deduction
or allocation, then liability for payroll tax will only arise with respect to
1 crediting or debiting, or allocation or deduction, so as to avoid double
taxation.
(9) 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;
partly funded scheme of superannuation means a scheme of
superannuation (including a provident or retirement fund or scheme) under which
the employer's liability for superannuation contributions is partly satisfied by
a payment within the meaning of paragraphs (a) to (d) of the definition of
superannuation contribution;
unfunded scheme of superannuation means a scheme of
superannuation (including a provident or retirement fund or scheme) under which
no payment within the meaning of paragraphs (a) to (d) of the definition of
superannuation contribution is made by the employer in total or
partial satisfaction of his, her or its liability for superannuation
contributions.
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.
(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 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 1 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 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 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.
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 of State
Taxation.
(4) Section 15 does not apply to the grant of a share or option that
constitutes wages, even if it constitutes a fringe benefit.
(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
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.
(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
In this Division—
employment termination payment means—
(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) 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 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 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.
For the purposes of this Act, wages include a termination
payment.
(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), 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 4 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 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 25—28
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.
(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.
(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
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
(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) is supplied with the services of another person for or in relation to
the performance of work; or
(c) gives out goods to a person for work to be performed by the person 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.
(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—
(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 person who
performs the work also performs 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) to (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 2 or more persons employed by, or who provide services for,
the contractor in the course of a business carried on by the contractor;
or
(ii) where the contractor is a partnership of 2 or more natural
persons, by 1 or more of the members of the partnership and 1 or more
persons employed by, or who provide services for, the contractor in the course
of a business carried on by the contractor; or
(iii) where the contractor is a natural person, by the contractor and
1 or more persons employed by, or who provide services for, the contractor
in the course of a business carried on by the contractor,
unless the 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
(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.
(4) For the purposes of this section, a relevant contract does not include
a contract of service of a class excluded from the operation of this section by
the regulations.
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) who during a financial year, under a relevant contract, is supplied
with services for or in relation to the performance of work; or
(c) who during a financial year, under a relevant contract, gives out
goods to another person,
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 another person
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.
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 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.
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.
(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 employment agency
contract is taken to be an employee of the employment agent.
(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
Division 5 of that Part or section 50) had the service provider been paid
by the client as an employee, if the client has given a declaration to that
effect, in the form approved by the Commissioner, to the employment
agent.
(3) If it is not reasonably practicable to determine the extent to which
an amount, benefit or payment constitutes wages under subsection (1), the
Commissioner may accept a return, or make an assessment, in which the amount on
which payroll tax is levied is determined on the basis of estimates.
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—
(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.
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 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.
(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.
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;
(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 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 or
benefit provided 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
(c) determine that any payment made or benefit provided 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.
Division
1—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 as its sole or dominant purpose a
charitable purpose (but not including a school, a college, 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, public benevolent or charitable 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—
(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.
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 services providers
(1) Subject to subsection (2), wages paid or payable by an employer
who provides health services otherwise than for the purpose of profit or gain
are exempt wages.
(2) The wages must be paid or payable to a person engaged exclusively
in—
(a) the provision of health services; or
(b) work that is incidental to the provision of health services.
(3) For the purposes of this section, health service 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 an employer who provides health services 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 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 1 pregnancy and
14 weeks adoption leave in respect of any 1 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 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 53 of the Taxation Administration Act 1996 requires
these records to be kept for at least 5 years unless the Commissioner of
State Taxation authorises earlier destruction.
Division
5—Volunteer firefighters and emergency service
volunteers
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 engaged as a
volunteer member of a SACFS organisation within the meaning of the Fire and
Emergency Services Act 2005 in responding to any situation that
involved or may have involved an emergency under that Act.
56—Emergency
service volunteers
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 engaged as a
volunteer member of an emergency services organisation under the Fire and
Emergency Services Act 2005 in responding to any situation that
involved or may have involved an emergency under that Act.
An exemption under this Division does not apply to wages paid or payable as
recreation leave, annual leave, long service leave or sick leave.
Subject to section 59, wages are exempt wages if they are paid or
payable by a council.
59—Limitation
on local government exemptions
An exemption under this Division does not apply to wages paid or payable
for or in connection with—
(a) any of the activities referred to in section 60; or
(b) the construction of any buildings or works, or the installation of
plant, machinery or equipment for use in or in connection with any of the
activities referred to in section 60.
Section 59 applies to the following activities:
(a) the supply of electricity or gas;
(b) water supply;
(c) sewerage;
(d) the conduct of—
(i) abattoirs;
(ii) public markets;
(iii) parking stations;
(iv) cemeteries or crematoria;
(v) hostels;
(vi) public transport;
(vii) an activity prescribed by the regulations.
Division 7—Other
government and defence
Wages paid or payable by the Governor of a State are exempt
wages.
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.
Wages paid or payable by the Commonwealth War Graves Commission are exempt
wages.
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.
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.
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 1 or more persons who perform duties for or
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.
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.
A group is constituted by all the persons or bodies forming a
group that is not a part of any larger group.
Corporations constitute a group if they are related bodies corporate within
the meaning of the Corporations Act 2001 of the Commonwealth.
71—Groups arising
from the use of common employees
(1) If 1 or more employees of an employer perform duties for or in
connection with 1 or more businesses carried on by the employer and
1 or more other persons, the employer and each of those other persons
constitute a group.
(2) If 1 or more employees of an employer are employed solely or mainly to
perform duties for or in connection with 1 or more businesses carried on by
1 or more other persons, the employer and each of those other persons
constitute a group.
(3) If 1 or more employees of an employer perform duties for or in
connection with 1 or more businesses carried on by 1 or more other
persons, being duties performed in connection with, or in fulfilment of the
employer's obligation under, an agreement, arrangement or undertaking for the
provision of services to any 1 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 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 the
owners (whether or not as trustees) 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 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
unincorporate—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—
(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) is 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,
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,
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—
(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;
(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 means a person who is a domestic partner
within the meaning of the Family Relationships Act 1975, whether
declared as such under that Act or not;
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;
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) 1 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;
(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;
(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 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.
74—Smaller
groups subsumed by larger groups
(1) If a person is a member of 2 or more groups, the members of all
the groups together constitute a group.
(2) If 2 or more members of a group have together a controlling interest
in a business (within the meaning of section 72), all the members of the
group and the person or persons who carry on the business 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.
Division
3—Business groups—tracing of interests in
corporations
This Division applies for the purposes of section 73 (Groups arising
from tracing of interests in corporations).
(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—
(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).
(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.
(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, 1 consisting of A, B and C, and
1 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, 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. The value of the indirect interest of the entity in
corporation C is 80% × 70% x 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 1 indirect
interest in a corporation. This may occur if the corporation is linked to more
than 1 corporation in which the entity has a direct interest, or if the
corporation is linked to only 1 corporation in which the entity has a
direct interest but is linked through more than 1 chain of corporations. In
that case, the entity has an aggregate interest in the corporation (see
section 78 (Aggregation of interests)).
(1) An entity has an aggregate interest in a corporation
if—
(a) the entity has a direct interest and 1 or more indirect interests
in the corporation; or
(b) the entity has more than 1 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;
(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% ×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)).
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.
(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.
(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
$600 000; 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
$600 000; 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 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.
(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 1 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 1 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.
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.
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.
Note—
There is a time limit on these refund applications—see clause 20
of Schedule 2.
(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.
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 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 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.
Part
7—Registration and returns
(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 $11 538 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
$11 538 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 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.
(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 Commissioner may vary—
(a) the time within which a specified employer is required to furnish
returns;
(b) the period in relation to which a specified employer, or employers of
a specified class, are required to furnish returns generally, or returns
relating to wages of a specified kind.
(3) A variation under subsection (2)—
(a) may be made subject to conditions or limitations;
(b) may be made, varied or revoked by notice in writing to an employer or
by notice in the Gazette.
(4) 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).
(5) 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
return is taken to have complied with this section.
Part 8—Collection
and recovery of tax
Division 1—Agents
and trustees generally
(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 1 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 the deceased person, if living, would have been
liable to make.
(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.
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.
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 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 8 of the Taxation Administration Act 1996 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 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 1996.
(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 1996.
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.
(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.
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.
Maximum penalty: $500
(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.
Maximum penalty: $500
(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.
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.
(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 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).
Maximum penalty: $5 000
(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 1 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 1 of those persons has paid the tax due in respect of the
company being wound-up, the others are each liable to 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.
100—Returns etc
to be completed in manner approved by Commissioner
A return, application, statement, notice or any other document relating to
the payment of payroll tax that is to be provided to the Commissioner for the
purposes of this Act or the Taxation Administration Act 1996 must be
provided in a manner and form determined or approved by the
Commissioner.
(1) The Governor may make such regulations as are contemplated by, or as
are necessary or expedient for the purposes of, this Act.
(2) Without limiting the generality of subsection (1), the
regulations may make provision for—
(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 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;
(e) prescribing any matter which or thing required or permitted by this
Act to be prescribed or necessary or convenient to be prescribed to give effect
to this Act.
(3) The regulations—
(a) may provide that any matter or thing is to be determined, dispensed
with, regulated or prohibited according to the discretion of the Minister, the
Commissioner or a prescribed authority; and
(b) may differ according to differences in time, place or circumstances;
and
(c) may prescribe a fine not exceeding $2 500 for the contravention
of, or failure to comply with, a regulation.
Schedule
1—Calculation of payroll tax liability
Part 1—Interpretation
In this Schedule—
financial year means the financial year commencing on
1 July 2009 or on 1 July in any subsequent financial
year
FY is the number of days in the financial year
R is 4.95%
relevant financial year means the financial year to which the
calculation of the relevant payroll tax relates
TA or threshold amount is $600 000.
Part 2—Employers who are not members of a
group
This Part applies only to an employer who is not a member of a
group.
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 under 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:
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
This Part applies only to an employer who is a member of a group for which
there is a designated group employer.
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
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 under 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).
(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—Motor Vehicle
Allowances
10—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;
(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).
(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 12 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);
(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 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 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 1 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.
12—Meaning
of relevant 12-week period
(1) In clause 11, 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.
13—Replacing
1 motor vehicle with another motor vehicle
(1) For the purposes of using the averaging method, an employer may
nominate 1 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.
(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.
14—Changing
method of 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 10 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 11 in respect of the
financial year.
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 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).
Schedule
2—South Australia Specific Provisions
Part 1—Introduction
This Schedule sets out provisions that apply only in this
jurisdiction.
In this Schedule—
prescribed amount means $50 000.
Part 2—Calculation of monthly payroll
tax
Division 1—Rate of payroll tax
The rate of payroll tax in this jurisdiction is 4.95%.
Division 2—Employers who are not members of a
group
This Division applies only to an employer who is not a member of a
group.
5—Amount of
payroll tax to be paid each month
(1) The amount of payroll tax payable by an employer on taxable wages paid
or payable by the employer in a month is the amount of dollars calculated in
accordance with the following formula:
where—
D is the deductible amount referred to in
clause 6
R is the rate of tax referred to in clause 3
TW represents the total taxable wages paid or payable by the
employer (otherwise than as a member of a group) during the month.
(2) If D is equal to or more than TW in respect of a month, the employer
is not required to pay payroll tax in respect of that month.
6—Deductible
amount from taxable wages
(1) The deductible amount for an employer who pays or is
liable to pay taxable wages (including interstate wages) in a month
is—
(a) if notice has been given under subclause (2) and no determination
under subclause (5) is in force—the amount specified in the most
recent notice given under subclause (2); or
(b) if a determination is in force under subclause (5)—the
amount specified in the determination.
(2) From time to time, the employer may give a notice to the Commissioner,
containing the information required by the Commissioner, of an amount,
calculated in accordance with subclause (3), that the employer claims to be
the employer's deductible amount for that month and subsequent months.
(3) The amount is to be calculated in accordance with the following
formula:
where—
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)
D is the deductible amount per month
FY is the number of days in the financial year
I represents the estimated interstate wages in the financial
year in which D will be applied
T represents the estimated taxable wages in the financial
year in which D will be applied
TA or threshold amount is $600 000.
(4) The deductible amount claimed cannot be more than the prescribed
amount.
(5) At any time, the Commissioner may, by notice in writing to the
employer, determine an amount, not more than the prescribed amount, as the
deductible amount for the employer for 1 or more months specified in the
determination.
(6) A determination under subclause (5) may be made on application by
the employer or on the Commissioner's own motion.
(7) At any time, the Commissioner, by notice in writing to the employer,
may revoke a determination made under subclause (5).
Division 3—Groups with a designated group
employer
This Division applies only to an employer who is a member of a group for
which there is a designated group employer.
8—Amount of
payroll tax to be paid each month
(1) If an approval is in force under section 87(4) for the designated
group employer to lodge a joint return—
(a) the amount of payroll tax payable by the designated group employer on
taxable wages paid or payable in a month by the employers covered by the return
is the amount of dollars calculated in accordance with the following
formula:
where—
D is the deductible amount referred to in
clause 9
JTW represents the total taxable wages paid or payable during
the month by the employers covered by the return (as members of a
group)
R is the rate of tax referred to in clause 3.
(b) the amount of payroll tax payable by each employer who is a member of
the group but is not covered by the return on taxable wages paid or payable by
the employer in a month is the amount of dollars calculated in accordance with
the following formula:
where—
R is the rate of tax referred to in clause 3
TW represents the total taxable wages paid or payable by the
employer concerned (as a member of the group) during the relevant
month.
(2) If an approval under section 87(4) is not in force for the
designated group employer—
(a) the amount of payroll tax payable by the designated group employer on
taxable wages paid or payable by the designated group employer in a month is the
amount of dollars calculated in accordance with the following formula:
where—
D is the deductible amount referred to in clause 9 (as
the case requires)
R is the rate of tax referred to in clause 3
TW represents the total taxable wages paid or payable by the
designated group employer (as a member of a group) during the month.
(b) the amount of payroll tax payable by each employer who is a member of
the group on taxable wages paid or payable by the employer in a month is the
amount of dollars calculated in accordance with the following formula:
where—
R is the rate of tax referred to in clause 3
TW represents the total taxable wages paid or payable by the
employer concerned (as a member of the group) during the relevant
month.
(3) For the purposes of subclauses (1)(a) and (2)(a), if D is equal
to or more than JTW or TW in respect of a month (as the case requires), the
designated group employer is not required to pay payroll tax in respect of that
month.
9—Deductible
amount for groups
(1) The deductible amount for a group in which 1 or
more members pay or are liable to pay taxable wages (including interstate wages)
in a month is—
(a) if notice has been given under subclause (2) and no determination
under subclause (5) is in force—the amount specified in the most
recent notice given under subclause (2); or
(b) if a determination is in force under subclause (5)—the
amount specified in the determination.
(2) From time to time, the designated group employer may give a notice to
the Commissioner, containing the information required by the Commissioner, of an
amount, calculated in accordance with subclause (3), that the employer
claims to be the group's deductible amount for that month and subsequent
months.
(3) The amount is to be calculated in accordance with the following
formula:
where—
C is the number of days in the relevant financial year in
respect of which any member of the group paid or was liable to pay taxable wages
or interstate wages
D is the deductible amount per month
FY is the number of days in the financial year
I represents the estimated interstate wages in the financial
year in which D will be applied
T represents the estimated taxable wages in the financial
year in which D will be applied
TA or threshold amount is $600 000.
(4) The deductible amount claimed cannot be more than the prescribed
amount.
(5) At any time, the Commissioner may, by notice in writing to the
designated group employer, determine an amount, not more than the prescribed
amount, as the deductible amount for the group for 1 or more months
specified in the determination.
(6) A determination under subclause (5) may be made on application by
the designated group employer or on the Commissioner's own motion.
(7) At any time, the Commissioner, by notice in writing to the designated
group employer, may revoke a determination made under
subclause (5).
Part 3—Exemptions
Division 1—Education and
training
Wages paid or payable by a school or college that—
(a) 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; and
(b) provides education at or below, but not above, the secondary
level,
being wages paid or payable to a person during a period in respect of which
the school or college satisfies the Commissioner that the person is engaged
exclusively in work of the school or college of a kind ordinarily performed in
connection with the conduct of schools or colleges providing education of that
kind are exempt wages.
Division 2—Health services
providers
11—What is a
health services provider?
For the purposes of Division 3 of Part 4 of this Act, health
service means—
(a) a service designed to promote health; or
(b) a therapeutic or other service designed to cure, alleviate, or afford
protection against, any mental or physical illness, abnormality or disability;
or
(c) a paramedical or ambulance service; or
(d) the care of, or assistance to, sick or disabled persons at their place
of residence; or
(e) a prescribed service.
Division 3—Other exemptions
(1) Wages paid or payable by a public hospital to a person during a period
in respect of which the hospital satisfies the Commissioner that the person is
engaged exclusively in work of the hospital of a kind ordinarily performed in
connection with the conduct of public hospitals are exempt wages.
(2) Wages paid or payable by a hospital that is carried on by a society or
association otherwise than for the purpose of profit or gain to the individual
members of the society or association, being wages paid or payable to a person
during a period in respect of which the hospital satisfies the Commissioner that
the person is engaged exclusively in work of the hospital of a kind ordinarily
performed in connection with the conduct of hospitals are exempt
wages.
Wages paid or payable by the Sexual Health Information Networking and
Education SA Incorporated are exempt wages.
Wages paid or payable by an employer who conducts a kindergarten otherwise
than for the purpose of profit or gain, being wages paid or payable to an
employee during a period in respect of which the employer satisfies the
Commissioner that the employee is engaged exclusively in work of the
kindergarten of a kind ordinarily performed in connection with the conduct of a
kindergarten are exempt wages.
Wages paid or payable by a child care centre that is an eligible
organisation within the meaning of the Child Care Act 1972 of the
Commonwealth, being wages paid or payable to a person during a period in respect
of which the child care centre satisfies the Commissioner that the person is
engaged exclusively in work of the centre of a kind ordinarily performed in
connection with the conduct of child care centres are exempt wages.
Wages paid or payable by a University College affiliated with the
University of Adelaide or the Flinders University of South Australia are exempt
wages.
Wages paid or payable by a motion picture production company, being wages
paid or payable to a person who is involved in the production of a feature film
in respect of which the motion picture production company satisfies the
Treasurer—
(a) that the film will be produced wholly or substantially within the
State; and
(b) that the production of the film will involve or result in the
employment of South Australian residents; and
(c) that economic benefits will accrue to the State of South Australia on
account of the production of the film,
are exempt wages.
Part 4—Returns and refunds
The Commissioner may, by notice in writing, call upon any employer or
person to lodge, 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.
19—Notification
of change in circumstances
An employer must give the Commissioner written notice within
14 days—
(a) after any change in the employer's—
(i) name; or
(ii) trading name; or
(iii) location of head office; or
(iv) postal address; or
(v) members, 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).
Maximum penalty: $2 000
20—Time
limit for refund applications
An application for a refund due under section 83 must be made before
the end of the financial year next following the financial year in respect of
which the refund is due.
Part 5—General
If, for the purposes of this Act, it is necessary—
(a) to calculate the proportion that 1 amount bears to another
amount; or
(b) to calculate an amount in accordance with a formula,
and, but for this clause, 1 or more of those amounts or an amount
included in the formula would be amounts of dollars and cents—the cents
are to be disregarded.
Schedule
3—Repeal and transitional provisions
Part 1—Repeal
1—Repeal of
Pay-roll Tax
Act 1971
The Pay-roll Tax Act 1971 is repealed.
Part 2—Transitional provisions
In this Schedule—
repealed Act means the Pay-roll Tax
Act 1971.
3—Savings and
transitional provisions
(1) The regulations may contain provisions of a savings and transitional
nature consequent on the enactment of this Act.
(2) A provision of a regulation made under subclause (1) may, if the
regulation so provides, take effect from the commencement of this Act or from a
later day.
(3) To the extent to which a provision takes effect under
subclause (2) from a day earlier than the day of the regulation's
publication in the Gazette, the provision does not operate to the disadvantage
of a person by—
(a) decreasing the person's rights; or
(b) imposing liabilities on the person.
(4) The Acts Interpretation Act 1915 will, except to the
extent of any inconsistency with the provisions of this Schedule or regulations
made under this Schedule, apply to any amendment or repeal effected by this
Act.
4—Continuation of
repealed Act and regulations
If a provision of the repealed Act continues to apply by force of this
Schedule, the following provisions also continue to apply in relation to that
provision:
(a) any other provision of the repealed Act necessary to give effect to
that continued provision;
(b) any regulation made under the repealed Act for the purposes of that
continued provision.
5—Application of
this Act and repealed Act
(1) This Act applies to payroll tax on taxable wages that are paid or
payable on or after 1 July 2009.
(2) Despite its repeal, the repealed Act continues to apply to payroll tax
on taxable wages (within the meaning of the repealed Act) paid or payable before
1 July 2009.
(3) The Taxation Administration Act 1996, as in force
immediately before 1 July 2009, continue to apply on and after that
day in respect of any matter to which the repealed Act continues to apply on and
after that day.
6—Superannuation
contributions not readily related to particular employees
For the purposes of an assessment of payroll tax, the Commissioner may
determine—
(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;
(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 1996, that is to be
regarded as having been paid in respect of services performed before that
date.
An employer who was registered under section 14 of the repealed Act
immediately before 1 July 2009 is taken, on and after that day, to be
registered under section 86 of this Act.
A member of a group who was the nominated or appointed member for the group
under section 18J of the repealed Act immediately before 1 July 2009
is taken, on and after that day, to be the designated group employer for the
group as if the member had been designated under section 80 of this
Act.
Unless the contrary intention appears, a reference in any other Act, law,
instrument or other form of document to pay-roll tax under the repealed Act will
be taken to include a reference to payroll tax under this Act.