Chief Commissioner of State Revenue v Uber Australia Pty Ltd

The Chief Commissioner of State Revenue appealed to the Court of Appeal of New South Wales against a decision of the primary judge who had allowed Uber Australia Pty Ltd's objection to a payroll tax assessment. The dispute concerned whether amounts paid by Uber to its drivers constituted wages for the purposes of the *Payroll Tax Act 2007* (NSW), thereby attracting payroll tax liability. The primary judge had found that the payments were not for the performance of work under the relevant contracts and revoked the tax assessment, also ordering the remission of premium interest.

The Court of Appeal was required to determine several issues, including whether driving constituted a service supplied by drivers to Uber under their contracts, whether the act of rating and referring passengers was de minimis, and whether the amounts collected by Uber from riders and remitted to drivers were "for or in relation to the performance of work" and "paid or payable" by Uber. The court also considered whether the primary judge erred in concluding that the driving service was synonymous with the use of the vehicle and whether rating was ancillary to vehicle use. Finally, the court had to decide whether the primary judge erred in ordering the remission of premium interest and, if so, to re-exercise that discretion.

The Court of Appeal allowed the Chief Commissioner's appeal and dismissed Uber's cross-appeal. The court reasoned that the primary judge had erred in finding that the payments to drivers were not for or in relation to the performance of work. The court held that the driving service was indeed supplied by the drivers to Uber under the contracts, and that the act of rating and referring, while potentially ancillary, was not de minimis in its entirety. The court also found that the amounts collected from riders and remitted to drivers were properly considered "paid or payable" by Uber in relation to the performance of work. Consequently, the court varied the primary judge's orders, finding Uber liable to payroll tax on amounts paid to drivers, with specific exceptions for certain referral payments. The court also varied the order regarding premium interest, finding Uber liable for it.