Victorian Repealed Acts Victorian Repealed ActsThis legislation has been repealed.
General exemption where two or more employers related etc.
9A. General exemption where two or more employers related etc.
(1) A reference in section 9B to taxable wages does not include a reference to
any wages paid or payable by an employer if the employer and another person or
other persons together constitute a group, unless the employer is excluded
from the group under subsection (1J).
(1A) For the purposes of this Act, if-
(a) an employer that is a body corporate and another body corporate (in
this section called a related person) are, by reason of section 50 of
the Corporations Act related to each other; or
(b) one or more employees of an employer perform duties for or in
connection with one or more businesses carried on by the employer and
one or more other persons (associates); or
(c) one or more employees of an employer are employed solely or mainly to
perform duties for or in connection with one or more businesses
carried on by one or more other persons (associates); or
(d) one or more employees of an employer perform duties for or in
connection with one or more businesses carried on by one or more other
persons (associates), 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 one or
more of the associates in connection with that business or those
businesses-
(i) whether the agreement, arrangement or undertaking is formal or
informal, express or implied; and
(ii) 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-
the employer and all persons who are related persons or associates in relation
to that employer together constitute a group and each is a member of that
group.
Note Subsection (1J) allows the Commissioner to exclude members from a group
constituted under this subsection in certain circumstances.
(1B) If the same person has, or the same persons have together, a controlling
interest under subsection (1C) in each of two businesses, the persons who
carry on those businesses constitute a group and each is a member of the
group.
Note Subsection (1J) allows the Commissioner to exclude members from a group
constituted under this subsection in certain circumstances.
(1C) For the purposes of subsection (1B), the same person has, or the same
persons have together, a controlling interest in each of two businesses if
that person has, or those persons have together, a controlling interest under
any of the following paragraphs in one of the businesses and a controlling
interest under the same or another of the following paragraphs in the other
business-
(a) a person has, or persons have together, a controlling interest in a
business, being a business carried on by a corporation, if the
directors, or a majority of the directors, or one or more of the
directors, being a director or directors who is or are entitled to
exercise a majority in voting power at meetings of the directors, of
the corporation are or is accustomed or under an obligation, whether
formal or informal, to act in accordance with the directions,
instructions or wishes of that person or of those persons acting
together;
(b) a person has, or persons have together, a controlling interest in a
business, being a business carried on by a corporation that has a
share capital, if that person or those persons acting together may
(whether directly or indirectly) exercise, control the exercise of, or
substantially influence the exercise of, 50 per centum or more of the
voting power attached to voting shares, or any class of voting shares,
issued by the corporation;
(c) a person has, or persons have together, a controlling interest in a
business if that person, or those persons together-
(i) constitute more than 50 per centum of the board of management (by
whatever name called) of the body corporate or unincorporate carrying
on the business; or
(ii) control the composition of that board;
(d) a person has, or persons have together, a controlling interest in a
business, being a business carried on by a partnership, if that person
or those persons-
(i) owns, or own together, (whether or not beneficially) 50 per centum or
more of the capital of the partnership; or
(ii) is, or are together, entitled (whether or not beneficially) to 50 per
centum or more of any profits of the partnership;
(e) a person has, or persons have together, a controlling interest in a
business, being a business carried on under a trust, if that person
(whether or not as the trustee of, or beneficiary under, another
trust) is the beneficiary, or those persons (whether or not as the
trustees of, or beneficiaries under, another trust) are together the
beneficiaries, in respect of 50 per centum or more of the value of the
interests in the trust first-mentioned in this paragraph;
(f) a person has a controlling interest in a business if, whether or not
the person is a trustee of a trust, the person is the sole owner of
the business or persons, being two or more trustees of a trust, have a
controlling interest in a business if they are the owners of the
business.
* * * * *
(1E) A person who, as the result of the exercise of a power or discretion by
the trustee of a discretionary trust or by any other person or by that trustee
and other person, may benefit under that trust is deemed, for the purposes of
this Act, to be a beneficiary in respect of 50 per centum or more of the value
of the interests in that trust.
(1F) If a body corporate has a controlling interest under subsection (1C) in a
business, it is deemed, for the purposes of subsection (1C), to have a
controlling interest in any other business in which another body corporate
that is, by reason of section 50 of the Corporations Act, related to it, has a
controlling interest.
(1G) If-
(a) a person has, or persons have together, a controlling interest under
subsection (1C) in a business; and
(b) the person or persons who carries or carry on that business has or
have such a controlling interest in another business-
the person or persons referred to in paragraph (a) are deemed, for the
purposes of subsection (1C), to have a controlling interest in the business
referred to in paragraph (b).
(1H) If-
(a) a person is a beneficiary under a trust; or
(b) two or more persons together are beneficiaries under a trust-
in respect of 50 per centum or more of the value of the interests in that
trust and the trustee or trustees of that trust has or have under subsection
(1C) a controlling interest in a business, that beneficiary or those
beneficiaries are deemed, for the purposes of subsection (1C) to have a
controlling interest in that business.
(1I) For the purposes of this Act, if a person is an employer who is a member
of a group, a reference to an employer does not have effect in relation to
that person otherwise than as a member of that group.
(1J) If the Commissioner is 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 a member of a group, including a group constituted by reason of section
9A(2), 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, the
Commissioner may exclude the member from that group.
(1K) The Commissioner must not, under subsection (1J), exclude a person from a
group if the person is a body corporate that, by reason of section 50 of the
Corporations Act, is related to another body corporate that is a member of
that group.
(2) If a person is a member of two or more groups (whether or not by reason of
this subsection), all the members of those groups constitute one group for the
purposes of this Act.
Note Subsection (1J) allows the Commissioner to exclude members from a group
constituted under this subsection in certain circumstances.
* * * * *
(3A) Subject to subsection (8), where, by reason of subsection (1), section 9B
does not apply to taxable wages paid or payable by an employer and there is a
group of which the employer is a member, section 9B, (except subsection (10))
and sections 11A, 11B and 11C shall, by reason of this subsection, be deemed
to have effect in relation to the sum of-
(a) the total taxable wages interstate wages and foreign wages paid or
payable to employees by the employer;
(b) the total taxable wages interstate wages and foreign wages paid or
payable to employees by a related person in the group; and
(c) the total taxable wages, interstate wages and foreign wages paid or
payable to employees by another member of the group-
(other than taxable wages, interstate wages or foreign wages paid or payable
by a related person or another member of the group to employees whom the
Commissioner is 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, are employed in a business that
is carried on independently of and is not connected with the carrying on of a
business carried on by the employer, a related person in the group or another
member of the group) as if-
(d) references in those sections to taxable wages or wages, or to
interstate wages or foreign wages were references to that sum of
taxable wages or wages interstate wages or foreign wages;
(e) for subsections (3) and (4) of section 9B there were substituted the
following subsections:
"(3) For the purpose of ascertaining the pay-roll tax payable for a return
period by a member of a group nominated or appointed for the purposes of
subsection (3A) of section 9A, being a group a member of which pays or is
liable to pay taxable wages for the whole of the return period but no member
of which pays or is liable to pay interstate wages during that return period,
the prescribed amount shall be deducted from the amount of the taxable wages
included in a return made by or an assessment relating to that first-mentioned
member (being a return or an assessment relating to that return period).
(4) For the purposes of ascertaining the pay-roll tax payable for a return
period by a member of a group nominated or appointed for the purposes of
subsection (3A) of section 9A where-
(a) at least one member of the group pays or is liable to pay taxable
wages during part only of the return period and no member of the group
pays or is liable to pay interstate wages during that part of the
return period; and
(b) during the other part of the return period no member of the group pays
or is liable to pay taxable wages or interstate wages-
there shall be deducted for that period from the amount of the taxable wages
included in a return made by or an assessment relating to that member (being a
return or an assessment relating to that period) an amount that bears to the
prescribed amount the same proportion as the number of days in that part of
that return period bears to the total number of days in that return period.";
(f) a reference (except in subsection (5) of section 9B or in section 11A,
11B or 11C) to an employer were a reference to a member of the group
nominated or appointed under subsection (4) for the purposes of this
subsection;
* * * * *
(ga) for section 11A(2) there were substituted:
"(2) In sections 11B and 11C, prescribed amount, in relation to the members of
a group within the meaning of section 9A, means-
(a) for the purposes of the financial year commencing on 1 July 1989, the
prescribed amount calculated for those purposes in relation to such
members in accordance with Part B of Schedule Two;
(b) for the purposes of the financial year commencing on 1 July 1990 and
ending on 31 October 1990, the prescribed amount calculated for those
purposes in relation to such members in accordance with Part D of
Schedule Two;
(c) for the purposes of the financial year commencing on 1 November 1990
and ending on 30 June 1991, the prescribed amount calculated for those
purposes in relation to such members in accordance with Part F of
Schedule Two;
(d) for the purposes of the financial year commencing on 1 July 1991 and
ending on 31 December 1991, the prescribed amount calculated for those
purposes in relation to such members in accordance with Part H of
Schedule Two;
(e) for the purposes of the financial year commencing on 1 January 1992
and ending on 30 June 1992, the prescribed amount calculated for those
purposes in relation to such members in accordance with Part J of
Schedule Two;
(f) for the purposes of the financial year commencing on 1 July 1992 and
ending on 30 November 1992, the prescribed amount calculated for those
purposes in relation to such members in accordance with Part L of
Schedule Two;
(g) for the purposes of the financial year commencing on 1 December 1992
and ending on 30 June 1993, the prescribed amount calculated for those
purposes in relation to such members in accordance with Part N of
Schedule Two;
(h) for the purposes of the financial year commencing 1 July 1993 and each
succeeding financial year up to and including the financial year
ending on 30 June 2002, the prescribed amount calculated for those
purposes in relation to such members in accordance with Part P of
Schedule Two;
(i) for the purposes of the financial year commencing on 1 July 2002 and
each succeeding financial year, the prescribed amount calculated for
those purposes in relation to such members in accordance with Part R
of Schedule Two;
(h) for subsection (5) of section 9B there were substituted the following
subsection:
"(5) A member of a group nominated or appointed for the purposes of subsection
(3A) of section 9A may, where during a return period at least one member of
the group pays or is liable to pay taxable wages and at least one member of
the group pays or is liable to pay interstate wages, by notice in writing in
the prescribed form containing the prescribed particulars, served on the
Commissioner, give notice of an amount, calculated in the prescribed manner,
not exceeding the prescribed amount, as the deduction that he claims to be
entitled to make for that return period and for subsequent return periods.";
(i) a reference to an employer in subsection (1) of section 11B or
in subsection (1) of section 11C were a reference to the
members of the group;
(j) for subsection (2) of section 11B there were substituted the following
subsection:
"(2) Subject to section 9A where taxable wages are paid or payable by the
members of a group during a financial year commencing on or after 1 January
1976-
(a) the Commissioner shall on application in accordance with subsection
(3) made by a member of the group nominated or appointed for the
purposes of subsection (3A) of section 9A, where the amount of
pay-roll tax paid or payable by the members of that group when returns
relating to that financial year were made is greater than the annual
amount of pay-roll tax in relation to the members of that group for
that financial year, refund or rebate to the first-mentioned member an
amount equal to the difference, reduced by any amount refunded to him
otherwise than under this section; or
(b) the member nominated or appointed for the purposes of subsection (3A)
of section 9A shall, where the amount of pay-roll tax paid or payable
by the members of the group when returns relating to that financial
year were made is less than the annual amount of pay-roll tax in
relation to the members of that group for that financial year, pay to
the Commissioner as pay-roll tax, within the period during which he is
required to furnish a return under this Act in respect of the return
period that is or includes the month of June in that financial year,
an amount equal to the difference.";
(k) for the interpretation of prescribed period in subsection (1) of
section 11C there were substituted the following interpretation-
"prescribed period in relation to the members of a group where during a part
of a financial year no member of the group pays or is liable to pay wages,
means the part of that year during which at least one member of the group pays
or is liable to pay wages;";
(l) a reference to an employer in subsection (2) of section 11C were a
reference to all the members of the group;
(m) a reference to an employer in subsection (3) of section 11C were a
reference to a member of the group;
(n) a reference to a return were a reference to a return furnished under
subsection (6) of section 13 in relation to the group or, where such a
return is not furnished, to the returns furnished by the employer, the
related persons, the associates and other members of the group; and
(o) a reference to an assessment were a reference to the assessments made
in relation to the employer, a related person, an associate or any
other member of the group.
(4) Where, in respect of a group-
(a) a member of the group is nominated by members of the group and notice
in accordance with subsection (4A) of the person nominated and persons
by whom the nomination is made is given to the Commissioner, the
nomination shall be deemed to have been made on the first day of the
month in which the notice is given or the date when the member became
a member of the group, whichever is the later, and the person so
nominated continues to be the person nominated for the purposes of
subsection (3A) until-
(i) notice of the nomination as aforesaid of another member of the group
is given to the Commissioner, being a notice in accordance with
subsection (4A) that includes a revocation of, or objection to, the
nomination of the first-mentioned person;
(ii) the nomination is revoked by members of the group by notice in
accordance with subsection (4A) given to the Commissioner or by
direction of the Commissioner; or
(iii) notice of objection in accordance with subsection (4A) to the
nomination is given to the Commissioner by a member of the group; or
(b) the Commissioner appoints a member of the group, the appointment shall
be deemed to have been made on the date specified in the appointment
(being a date when the member was a member of the group) and the
person so appointed continues to be the person appointed for the
purposes of subsection (3A) until the appointment is revoked by the
Commissioner.
(4A) A notice of nomination, or of revocation or objection to a nomination, of
a member of a group under subsection (4)(a) must be in writing, be dated and
include-
(a) the name and address of each member of the group making, revoking or
objecting to the nomination; and
(b) the date on which the group came into existence; and
(c) the name and address of the member of the group in respect of whom the
notice is given; and
(d) in the case of a notice of nomination, the date on which the member of
the group became such a member.
(5) A nomination or appointment under subsection (4) shall be deemed to be a
nomination or appointment in respect of a group notwithstanding that at the
time the nomination or appointment is made the identity of one or more members
of the group is not known or, in the case of a nomination, one or more members
do not join in making the nomination and to continue to be a nomination or
appointment in respect of the group notwithstanding that the membership of the
group alters.
(6) Where, for the purposes of subsection (3A), the Commissioner-
(a) appoints or revokes the appointment of a member of a group; or
(b) directs that a nomination of a member of a group is revoked-
he shall give notice of the appointment or revocation to each member of the
group whose identity he knows.
(7) Nothing in this section requires the Commissioner to appoint a member of a
group for the purposes of subsection (3A) and, where he makes or revokes such
an appointment, he is not liable to any person in any manner by reason of the
appointment or revocation.
(8) Where, in respect of a group, neither a nomination nor an appointment for
the purposes of subsection (3A) is in force, sections 9B, 11A, 11B and 11C do
not have effect in relation to taxable wages paid or payable by the group or
by a member of the group.