Pay-roll Tax Act 1971 (NSW)
An Act to impose a tax upon employers in respect of certain wages; to provide for the assessment and collection of the tax; and for purposes connected therewith.
This Act may be cited as the Pay-roll Tax Act 1971.
This Act shall be deemed to have commenced upon the first day of September, one thousand nine hundred and seventy-one.
This Act is to be read together with the Taxation Administration Act 1996 which makes provision for the administration and enforcement of this Act and other taxation laws.
In this Act, except in so far as the context or subject-matter otherwise indicates or requires:
(a) an industrial instrument within the meaning of the Industrial Relations Act 1996, or
(b) any agreement with respect to salaries or wages entered into under any other law of the State between an employer constituted by that law and an association or organisation representing a group or class of employees, or
(c) an award, agreement or other instrument under the law of the Commonwealth or of another State or Territory, being an award, agreement or other instrument of a similar nature to an instrument or agreement referred to in paragraph (a) or (b).
(a) a tax-exempt body entertainment fringe benefit within the meaning of that Act, or
(b) anything that is prescribed by the regulations not to be a fringe benefit for the purposes of this definition.
(a) a documentary record, or
(b) a record made by an electronic, electromagnetic, photographic or optical process, or
(c) any other kind of record.
(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 a wholly or partly unfunded fund or scheme.
(a) an executor or administrator, guardian, committee, receiver or liquidator, and
(b) every person having or taking upon himself or herself the administration or control of any real or personal property affected by any express or implied trust, or acting in any fiduciary capacity, or having the possession, control or management of any real or personal property of a person under any legal or other disability.
A reference, in the definition of
(Repealed)
For the purposes of this Act, the Australian Capital Territory (including the Jervis Bay Territory) and the Northern Territory of Australia shall each be deemed to be a State of the Commonwealth.
(Repealed)
For the purposes of this Act, a superannuation, provident or retirement fund or scheme is
Notes included in this Act do not form part of this Act.
In this Act,
Wages includes:
(a) any amount paid or payable by way of remuneration to a person holding office under the Crown in right of the State of New South Wales or in the service of the Crown in right of the State of New South Wales, and
(b) any amount paid or payable under any prescribed classes of contracts to the extent to which the payment is attributable to labour, and
(c) any amount paid or payable by a company by way of remuneration to a director or member of the governing body of the company, and
(d) any amount paid or payable by way of commission to an insurance or time-payment canvasser or collector, and
(e) any amount deemed by or under a provision of this Act to be wages.
Wages includes the grant of any share or option that constitutes wages under section 3AD or 3AF.
Wages includes fringe benefits, but does not include an exempt benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth unless that exempt benefit constitutes wages under section 3AG (Inclusion of redundancy and long service contributions as wages).
Wages includes any distribution to a person as beneficiary under a trust that is required to be included as wages by section 3AC.
Wages includes a payment made in consequence of the retirement from, or termination of, any office or employment of an employee, being:
(a) a lump sum payment paid before or after that retirement or termination in respect of unused annual leave, or unused annual leave and a bonus, loading or other additional payment relating to that leave, or
(b) an amount paid in respect of unused long service leave, or
(c) an amount paid in respect of unused sick leave.
Wages includes any contribution to a redundancy benefit scheme or to a portable long service leave fund that constitutes wages under section 3AG.
Wages includes a superannuation benefit, other than one paid or payable in respect of services rendered by an employee before 1 July 1996.
Wages includes so much of any eligible termination payment (within the meaning of section 27A of the Income Tax Assessment Act 1936 of the Commonwealth) 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 Subdivision AA of Division 2 of Part III of that Act if the whole of the eligible termination payment had been paid to the employee.
Wages includes an amount paid or payable by a company as a consequence of the termination of the services or office of a director or member of the governing body of the company, whether or not paid to the director or member or to any other person or body, that would be an eligible termination payment (within the meaning of section 27A of the Income Tax Assessment Act 1936 of the Commonwealth) if the amount had been paid or payable as a consequence of termination of employment.
Wages include an amount paid or payable by a person who is an employer under a relevant contract (within the meaning of section 3A) 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 eligible termination payment (within the meaning of section 27A of the Income Tax Assessment Act 1936 of the Commonwealth) if the amount had been paid or payable as a consequence of termination of employment.
Wages referred to in subsection (6B), (6BA) or (6BB) that are not paid in respect of services performed or rendered by an employee in a particular month are liable to pay-roll tax under this Act as if they were paid or payable in respect of services performed or rendered during the month in which they were paid or became payable.
(Repealed)
Wages does not include anything that is prescribed by the regulations not to be wages for the purposes of this section.
In this section:
A reference in this section to a director or member of the governing body of a company includes a reference to a former director or former member of the governing body of a company.
Money paid or payable that constitutes or is taken to be wages by virtue of more than one provision of this Act is taxable once only.
For the purposes of this Act, the amount or value of wages paid or payable to a person is to be reduced by the relevant proportion of the amount of GST, if any, payable by that person on the supply to which the wages relate.
This section does not apply in respect of the value of wages comprising a fringe benefit.
See section 9. The fringe benefits taxable amount of fringe benefits may include a GST component.
In this section:
A distribution to a person as beneficiary under a trust constitutes
Work that constitutes the provision of services to the trustee of a trust or for the purposes of a business conducted by the trustee of a trust is
The provision of services to the trustee of a trust that is related to the trust under which the distribution is made or for the purposes of a business conducted by the trustee of a trust that is related to the trust under which the distribution is made is taken to constitute work done for the trust under which the distribution is made.
This section applies in respect of a distribution to a person only if:
(a) there is a wages shortfall in respect of work done for the trust by the person or by a person connected with the trust, and
(b) the distribution is made in the financial year in which the work is done or in the following financial year.
There is a
If the distribution does not exceed the wages shortfall in respect of the work, the whole of the distribution is in lieu of wages for work done for the trust by the person. Alternatively, if the distribution exceeds the wages shortfall in respect of the work, the distribution is in lieu of wages to the extent of the shortfall.
For the purpose of determining whether a particular distribution is in lieu of wages for work done for the trust, the total wages (if any) paid or payable to the person during a financial year for the work is taken to include any previous distribution (whether made during that financial year or the following financial year and whether made under the trust or under a trust that is related to that trust) that, by application of this section, is a distribution in lieu of wages for the same work.
For the purposes of this section, the
(a) pursuant to an award in force under a law of the State, or
(b) if paragraph (a) does not apply, pursuant to an award in force under a law of the Commonwealth, or
(c) if neither paragraph (a) nor (b) applies, pursuant to a determination of that minimum wage rate in accordance with Schedule 1A.
For the purposes of this section:
(a) a person is
connected with a trust only if the trustee is a company and the person is a director or member of the governing body of the company, and(b) a trust is
related to another trust if the trusts are members of the same group (within the meaning of Part 4A).
The grant of a share or option to an employee by an employer in respect of services performed or rendered by the employee constitutes
Any such wages are taken, for the purpose of the imposition of pay-roll tax, to be paid or payable on the relevant day.
For the purposes of this section, the
A share or option is
(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,
(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.
The
The
(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.
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.
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).
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 pay-roll 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.
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. This subsection does not apply because an employee fails to exercise an option or to otherwise exercise his or her rights in respect of a share or 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 2003.
To avoid doubt, the grant of a share or option is valuable consideration for the purposes of section 3D.
In this section:
If the grant of a share or option constitutes wages under section 3AD, 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 (within the meaning of section 3AD), 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 or rendered).
The market value of a share or option on the relevant day is to be determined in accordance with the Commonwealth income tax provisions.
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 Chief Commissioner (within the meaning of this Act).
Section 9 does not apply to the grant of a share or option that constitutes wages, even if it constitutes a fringe benefit.
In this section:
The grant of a share, or option, by a company to a director or member of the governing body of the company by way of remuneration for the appointment or services of the director or member that would be wages under section 3AD if the director or member were an employee of the company constitutes
For that purpose, sections 3AD and 3AE 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 or member of the governing body of the company.
In this section, a reference to a director or member of the governing body 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 or member of the governing body of the company,
(b) a former director or former member of the governing body of the company.
In this section,
A contribution to a redundancy benefit scheme, or to a portable long service leave fund, constitutes
The amount paid or payable as wages is taken, for the purposes of this Act, to be the amount of the contribution.
However, the wages liable to pay-roll tax under this Act do not include the amount (if any) that the employer is entitled to recover from the scheme or fund.
A contribution to a redundancy benefit scheme, or to a portable long service leave fund, does not constitute wages under this section if it is a superannuation benefit.
A contribution to a redundancy benefit scheme, or to a portable long service leave fund, constitutes wages under this section even if it is an exempt benefit for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth.
In this section:
A reference in this section to a relevant contract in relation to a financial year is a reference to a contract under which a person (in this subsection referred to as the
(a) supplies to another person services for or in relation to the performance of work,
(b) is supplied with the services of persons for or in relation to the performance of work, or
(c) gives out goods to natural persons for work to be performed by those persons in respect of those goods and for re-supply of those goods to a designated person or, where the designated person is a member of a group, to another member of that group,
but does not include a reference to a contract of service or a contract under which the designated person, during a financial year, in the course of a business carried on by the designated person:
(d) 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,
(e) 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 rendered by a person who ordinarily renders services of that kind to the public generally,
(ii) those services are of a kind ordinarily required by the designated person for less than 180 days in that financial year,
(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 of the persons who perform the work also perform similar work for the designated person, for periods that, in the aggregate, exceed 90 days in that financial year,
(iv) the payment of the consideration under the contract is made at a rate that is not less than $800,000 per annum, or
(v) those services are supplied under a contract to which subparagraphs (i)–(iv) do not apply and the Chief Commissioner is satisfied that those services are rendered by a person who ordinarily renders services of that kind to the public generally, or
(f) is supplied by a person (in this paragraph referred to as
the contractor ) with services for or in relation to the performance of work under a contract to which paragraphs (d) and (e) 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,
(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 Chief Commissioner determines that the contract 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.
For the purposes of this section, a contract under which:
(a) a person is supplied with services ancillary to the conveyance of goods by means of a vehicle provided by the person conveying them,
(b) a person is supplied with services for or in relation to the procurement of persons desiring to be insured by the person, or
(c) a person is supplied with services for or in relation to the door-to-door sale of goods to consumers on the person’s behalf,
is not a relevant contract, unless the Chief Commissioner determines that the contract was entered into with an intention either directly or indirectly of avoiding or evading the payment of tax by any person.
For the purposes of this section, a contract under which services are supplied by an employment agent, or a contract worker is procured by an employment agent, under an employment agency contract within the meaning of section 3C is not a relevant contract.
For the purposes of this Act:
(a) a person:
(i) (Repealed)
(ii) to whom during a financial year, under a relevant contract, the services of persons are supplied for or in relation to the performance of work, or
(iii) who during a financial year, under a relevant contract, gives out goods to other persons,
shall be deemed to be an employer in respect of that financial year,
(b) a person who during a financial year:
(i) performs work for or in relation to which services are supplied to another person under a relevant contract, or
(ii) being a natural person, under a relevant contract, re-supplies goods to an employer,
shall be deemed to be an employee in respect of that financial year,
(c) amounts paid or payable by an employer, and benefits paid or payable by an employer and received by a person that would be fringe benefits if they were paid or payable to the person in the capacity of an employee of the 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 shall be deemed to be wages paid or payable during that financial year, and
(d) where an amount referred to in paragraph (c) 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 may be prescribed by the regulations, and
(e) an amount paid or payable for or in relation to the performance of work under a relevant contract is taken to include 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 benefit if made in relation to a person in the capacity of an employee, and
(f) an amount paid or payable for or in relation to the performance of work under a relevant contract is taken to include the value of any contribution to a share scheme (not otherwise included as wages under this Act) provided or liable to be provided by the employer that is taken to constitute wages under section 3AD.
(Repealed)
Where:
(a) a contract under which a person (in this subsection referred to as the
designated person ) in the course of a business carried on by the person supplies to another person services for or in relation to the performance of work would, but for subsection (1) (e) (iv), be a relevant contract, and(b) contracts under which the designated person in the course of the same business is supplied with the services of persons for or in relation to the performance of work would, but for subsection (1) (e) (ii) or (iii), be relevant contracts,
the Chief Commissioner may, unless the designated person satisfies the Chief Commissioner that the business is carried on independently of, and is not connected with, the carrying on of a business carried on by another person or other persons and that the business is not carried on with an intention either directly or indirectly of avoiding or evading the payment of tax whether by the designated person or another person, by notice in writing given to the designated person determine that the contracts referred to in paragraph (b) are relevant contracts notwithstanding subsection (1) (e) (ii) and (iii).
Where, in respect of a payment for or in relation to the performance of work that is deemed to be wages under this section, pay-roll tax is paid by a person deemed under this section to be an employer:
(a) no other person shall be liable to pay-roll tax in respect of that payment, and
(b) where another person is liable to make a payment for or in relation to that work, that person shall not be liable to pay-roll tax in respect of that payment unless it or the payment by the person so deemed to be an employer is made with an intention either directly or indirectly of avoiding or evading the payment of tax whether by that deemed employer or another person.
The wages that are liable to taxation under this section do not include amounts paid or payable by an AFS licence holder in respect of services provided by a financial planner if the exemption conditions are satisfied. The exemption conditions are the conditions set out in Schedule 1B.
In subsection (5A):
(a) providing financial product advice (within the meaning of the Corporations Act 2001 of the Commonwealth),
(b) dealing in a financial product (within the meaning of that Act) as agent for an AFS licence holder, other than by underwriting securities or managed investment products (within the meaning of that Act).
In this section:
(a) a reference to a contract includes a reference to an agreement, arrangement or undertaking, whether formal or informal and whether express or implied,
(b) a reference to supply includes a reference to supply by way of sale, exchange, lease, hire or hire-purchase and, in relation to services, includes a reference to the providing, granting or conferring of services,
(c) a reference (however expressed) to the re-supply of goods acquired from a person includes a reference to:
(i) a supply to the person of goods in an altered form or condition,
(ii) a supply to the person of goods in which the firstmentioned goods have been incorporated, and
(iii) a supply to the person of an article manufactured or produced from any such goods,
(d) a reference to services includes a reference to results (whether goods or services) of work performed, and
(e) a reference to a financial year shall be deemed to include a reference to the period from the commencement of this section to 30 June 1986.
Where any person enters into any agreement, transaction or arrangement, whether in writing or otherwise, under which a natural person performs or renders, for or on behalf of another person, services in respect of which any payment is made to some other person related or connected to the natural person performing or rendering 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 pay-roll tax, the Chief Commissioner may:
(a) disregard the agreement, transaction or arrangement,
(b) determine that any party to the agreement, transaction or arrangement shall be deemed to be an employer for the purposes of this Act, and
(c) determine that any payment made in respect of the agreement, transaction or arrangement shall be deemed to be wages for the purposes of this Act.
Where the Chief Commissioner makes a determination under subsection (1), the Chief Commissioner shall serve a notice to that effect on the person deemed to be an employer for the purposes of this Act and shall set out in the notice the facts on which the Chief Commissioner relies and the reasons for making the determination.
This section has effect in relation to agreements, transactions and arrangements made before, on or after the commencement of this section.
For the purposes of this Act, an
For the purposes of this Act:
(a) the employment agent under an employment agency contract is taken to be an employer, and
(b) the contract worker under an employment agency contract is taken to be an employee of the employment agent, and
(c) an amount, the value of a benefit or a payment, being:
(i) any amount paid or payable to the contract worker in respect of the provision of services in connection with an employment agency contract, and
(ii) the value of any benefit provided for or in relation to the provision of services in connection with an employment agency contract that would be a fringe benefit if provided to a person in the capacity of an employee, and
(iii) any payment made in relation to the contract worker that would be a superannuation benefit if made in relation to a person in the capacity of an employee,
is taken to be wages paid or payable by the employment agent.
If it is not reasonably practicable to determine the extent to which an amount, benefit or payment constitutes wages under subsection (2) (c), the Chief Commissioner may accept a return, or make an assessment, in which the amount on which pay-roll tax is levied is determined on the basis of estimates.
An employment agent is not liable to pay-roll tax under this Act in relation to an employment agency contract:
(a) if the contract worker is liable to pay pay-roll tax (as the employer of the person who actually provides the services to the client of the employment agent under the contract) in respect of wages paid for those services and a declaration to that effect has been given by the contract worker to the employment agent, or
(b) if the wages that the amount, value of the benefit or payment under subsection (2) (c) is taken to be would have been exempt from pay-roll tax under section 10 had the contract worker been paid those wages by the client of the employment agent and a declaration to that effect has been given by the client to the employment agent, or
(c) if the client of the employment agent:
(i) is not registered or required to be registered as an employer under this Act, and
(ii) would not be required to be registered as an employer under this Act if the client were the employer in respect of the wages paid or payable under all the employment agency contracts to which the client is a party,
and a declaration to that effect has been given by the client to the employment agent.
If a contract worker gives a declaration to an employment agent under subsection (4) (a), and that paragraph does not apply or at any time ceases to apply to the contract worker, the employment agent is liable to pay pay-roll tax in respect of the wages paid or payable under the employment agency contract during any period in which the paragraph does not apply.
If a client of an employment agent gives a declaration to the employment agent under subsection (4) (b), and that paragraph does not apply or at any time ceases to apply in respect of the wages paid or payable under the employment agency contract, the client, and not the employment agent, is liable to pay pay-roll tax in respect of the wages paid or payable under the employment agency contract during any period in which the paragraph does not apply.
If a client of an employment agent gives a declaration to the employment agent under subsection (4) (c), and that paragraph does not apply or at any time ceases to apply to the client, the client, and not the employment agent, is liable to pay pay-roll tax in respect of the wages paid or payable under the employment agency contract at any time during the financial year in which the paragraph does not apply.
A declaration under subsection (4) is to be in a form approved by the Chief Commissioner.
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 regarded 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.
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 or member of the governing body of the company, be regarded as wages paid or payable by the company to the director or member for the purposes of this Act, they are taken to be wages paid or payable by the company to the director or member:
(a) any money or other valuable consideration paid or given, or to be paid or given, to a director or member of the governing body of a company, by way of remuneration for the appointment or services of the director or member 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 a director or member of the governing body of the company to the company, to a person other than the director or member,
(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 or member of the governing body of the company to the company, to a person other than the director or member.
In this section, a reference to a director or member of the governing body of a company includes a reference to the following:
(a) a person who, under a contract or other arrangement, is to be appointed as a director or member of the governing body of the company,
(b) a former director or former member of the governing body of the company.
This section applies in relation to any Division of the Government Service specified in Part 1 or 2 of Schedule 1 to the Public Sector Employment and Management Act 2002 in which staff are employed under Chapter 1A of that Act to enable a statutory corporation to exercise its functions.
For the purposes of this Act, each Division of the Government Service to which this section applies is taken to be a separate employer with respect to the matters specified in subsection (3). If the Division concerned comprises separate branches each of which is assigned to a different statutory corporation, each such branch of the Division is taken to be a separate employer with respect to the matters specified in subsection (3) in so far as they relate to that branch.
The matters that are specified for the purposes of subsection (2) are as follows:
(a) the wages paid or payable to the staff of the Division or branch of the Division,
(b) any fees or other remuneration paid or payable to the members of the board or other governing body of the statutory corporation to which the staff of the Division (or branch of the Division) are assigned,
(c) any amount paid or payable under a relevant contract (within the meaning of section 3A) entered into by the statutory corporation concerned,
(d) if any staff are also employed in a Division of the Government Service specified in Part 3 of Schedule 1 to the Public Sector Employment and Management Act 2002 in connection with the statutory corporation concerned—the wages paid or payable to the staff of that Division.
(Repealed)
The wages liable to pay-roll tax under this Act are wages that are paid or payable by an employer for services performed or rendered during a month or part of a month and:
(a) are wages that are paid or payable in New South Wales, other than wages so paid or payable:
(i) to a person who does not perform or render any services to that employer in New South Wales during any part of the relevant month and performs or renders those services wholly in one other State, or
(ii) to a person for services performed or rendered wholly in another country for more than 6 months after wages were first paid to that person for services so performed or rendered, or
(b) are wages that are paid or payable outside New South Wales for services performed or rendered wholly in New South Wales, or
(c) are wages that are paid or payable outside Australia for services performed or rendered mainly in New South Wales, or
(d) are wages that are paid or payable outside New South Wales for services performed or rendered partly in New South Wales, other than:
(i) wages so paid or payable for services performed or rendered mainly in another State that are liable to pay-roll tax under a provision of a corresponding law, or
(ii) wages so paid or payable for services performed or rendered partly but not mainly in New South Wales and partly but not mainly in at least one other State, if pay-roll tax is paid under a corresponding law, or
(iii) wages so paid or payable for services ordinarily performed or rendered in another country if the person does not regularly perform or render services in Australia.
Subsection (1) applies to wages paid or payable after the commencement of that subsection (as substituted by the State Revenue Legislation (Further Amendment) Act 1992) for services performed or rendered by a person wholly outside Australia even though the first payment for services so performed or rendered was made before that commencement.
For the purposes of paragraph (a) of subsection (1), 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 New South Wales or in another State) shall be deemed:
(a) where those wages are payable in respect of services performed or rendered wholly in New South Wales—to be wages payable to that person in New South Wales,
(b) where those wages are not payable in respect of services performed or rendered wholly in New South Wales or wholly in one other State and 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 New South Wales, or
(c) where those wages are not deemed by paragraph (a) or (b) or by any provision of a corresponding law that corresponds to either of those paragraphs to be wages payable to that person in New South Wales or in another State—to be wages payable to that person at the place where that person last performed or rendered any services for that employer before those wages became payable.
For the purposes of paragraph (a) of subsection (1), where:
(a) wages are paid or payable in a State, other than New South Wales, to a person on or after a day to be appointed by the Governor for the purposes of this subsection and notified by proclamation published in the Gazette,
(b) portion (in this subsection referred to as the
attributable portion ) of those wages is attributable to services performed or rendered in New South Wales and portion is attributable to services performed or rendered elsewhere (whether or not in Australia), and(c) that attributable portion is liable to tax under the corresponding law of that State at a rate less than the rate of five per centum,
such part of the attributable portion as is equal to an amount that bears to the whole of the attributable portion the same proportion as the difference in the rates referred to in paragraph (c) bears to five shall be deemed to be wages paid or payable to that person in New South Wales.
For the purposes of this section, where for the purpose of the payment of wages:
(a) a cheque, bill of exchange, promissory note, money order or postal order issued by a post office or any other instrument is sent or given by an employer to any person or the agent of any person at any place in Australia, or
(b) an instruction is given by an employer for the crediting of an amount to the account of any person or the agent of any person at any place in Australia,
those wages shall be deemed to have been paid at that place and to have been paid when the instrument was so sent or given or when the account is credited in accordance with the instruction, as the case may be.
For the purposes of this section, 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 or rendered during the month in which the relevant day (within the meaning of section 3AD) occurs.
The wages constituted by the grant of the share or option are taken to be paid or payable in New South Wales if the share is a share in a NSW company or, in the case of an option, an option to acquire shares in a NSW company. In any other case, the wages constituted by the grant of the share or option are taken to be paid or payable outside New South Wales.
If the wages concerned are taken to be payable outside New South Wales, because the shares concerned are shares in a company that is not a NSW company, the grant of the share or option may still be liable to pay-roll tax under this Act if the grant is made for services performed or rendered wholly, mainly or partly in New South Wales (see section 6 (1) (b), (c) and (d)).
In the case of wages constituted by the grant of a share or option by a company to a director or member of the governing body of the company by way of remuneration for the appointment of the director or member, but not for services performed:
(a) the grant of the share or option is taken, for the purposes of this section, to be paid or payable for services performed or rendered during the month in which the relevant day (within the meaning of section 3AD) occurs, and
(b) a reference in this section to the place or places where services are performed or rendered is a reference to the place or places where it may reasonably be expected that the services of the director or member in respect of the company will be performed or rendered.
In this section:
(a) a company incorporated or taken to be incorporated under the Corporations Act 2001 of the Commonwealth that is taken to be registered in New South Wales for the purposes of that Act, or
(b) any other body corporate that is incorporated under an Act of New South Wales.
Subject to, and in accordance with, the provisions of this Act, there shall be charged, levied, collected and paid, for credit of the Consolidated Fund in the Treasury, on all taxable wages pay-roll tax:
(a) ascertained in accordance with Schedule 1 in respect of such of those wages as are paid or payable after the month of June 1995 and before the month of July 1996, and
(b) ascertained in accordance with Schedule 2 in respect of such of those wages as are paid or payable after the month of June 1996 and before the month of July 2000, and
(c) ascertained in accordance with Schedule 3 in respect of such of those wages as are paid or payable after the month of June 2000 and before the month of July 2001, and
(d) ascertained in accordance with Schedule 4 in respect of such of those wages as are paid or payable after the month of June 2001.
(e)–(g) (Repealed)
If taxable wages are paid after a month in which they became payable, pay-roll tax is to be charged in respect of those wages at the rate applicable to the month in which they became payable.
Pay-roll tax shall be paid by the employer by whom the taxable wages are paid or payable.
For the purposes of this Act, the value of taxable wages, comprising a fringe benefit, is the value that would be the fringe benefits taxable amount of the employer for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth.
(Repealed)
Subject to subsections (1A) and (2), the wages liable to pay-roll tax under this Act do not include wages paid or payable:
(a) by the Governor of a State,
(a1) by a religious institution,
(a2) by a public benevolent institution (other than an instrumentality of the State),
(b) by a public hospital,
(b1) by the Crown in connection with a public hospital or an area health service within the meaning of the Health Services Act 1997,
(b2) by the Crown in respect of the Home Care Service,
(c) by a hospital which 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,
(c1) (Repealed)
(d) by a school or college (other than a technical school or a technical college) which:
(i) is carried on by a body corporate, society or association otherwise than for the purpose of profit or gain to the individual members of the body corporate, society or association and is not carried on by or on behalf of the State of New South Wales, and
(ii) provides education at or below, but not above, the secondary level of education,
(e) by or on behalf of a council or county council, except to the extent that the wages were paid for or in connection with the following trading undertakings:
(i) the supply of electricity, water, sewerage services, gas, liquefied petroleum gas or hydraulic power and the supply and installation of associated fittings and appliances and of pipes and apparatus,
(ii) the operation of an abattoir or a public food market, parking station, cemetery, crematorium or hostel,
(iii) the operation of a coal mine and the supply and distribution of coal,
(iv) the operation of a transport service,
(v) the supply of building materials,
(vi) a prescribed activity,
(vii) the construction of any building or work or the installation of plant, machinery or equipment for use in or in connection with any of the activities listed in subparagraphs (i)–(vi),
(f) to members of official staff by:
(i) a consular or other representative (other than a diplomatic representative) in Australia of the Government of any other part of Her Majesty’s dominions or of any other country, or
(ii) a Trade Commissioner representing in Australia any other part of Her Majesty’s dominions,
(g) by the Commonwealth War Graves Commission,
(h) by the Australian-American Educational Foundation,
(i) to a person who is a member of the Defence Force of the Commonwealth or of the armed force of any part of Her Majesty’s dominions, being wages paid or payable by the employer from whose employment the person is on leave by reason of being such a member,
(j) by a non-profit organisation (other than a school or college, statutory body or an instrumentality of the State) having as one of its objects a charitable, benevolent, philanthropic or patriotic purpose,
(j1) by an organisation (other than a school or college, statutory body or an instrumentality of the State) that:
(i) was, immediately before the repeal of the Charitable Collections Act 1934, a charity within the meaning of that Act and registered or exempted from registration under that Act, and
(ii) has not, since the repeal of that Act, altered its constitution in so far as its constitution relates to its charitable objects,
(k) by a society or an institution (other than a school or college, statutory body or an instrumentality of the State) which:
(i) is, in the opinion of the Chief Commissioner, a charitable society or institution, and
(ii) is for the time being approved by the Chief Commissioner for the purposes of this paragraph,
(l) to an apprentice within the meaning of the Apprenticeship and Traineeship Act 2001,
(l1) to a trainee within the meaning of the Apprenticeship and Traineeship Act 2001, other than an existing worker trainee within the meaning of that Act,
(m) to an employee who is employed in accordance with a group apprenticeship scheme or a group traineeship scheme approved for the time being by the Secretary of the Department of Education and Training, or
(n) to Aboriginal persons who are employed under the Community Development Employment Project administered by the Aboriginal and Torres Strait Islander Commission by an Aboriginal Corporation established under section 89 of the Aboriginal and Torres Strait Islander Commission Act 1989 of the Commonwealth or by any other body corporate, a majority of whose members are Aboriginal persons, or
(o) to an employee in respect of any period during which the employee was taking part in bush fire fighting activities as a volunteer member of a rural fire brigade under the Rural Fires Act 1997 (but not in respect of wages paid or payable as recreation leave, annual leave, long service leave or sick leave), or
(p) to an employee in respect of any period during which the employee was taking part in emergency operations as a member of an emergency services organisation under the State Emergency and Rescue Management Act 1989 (but not in respect of wages paid or payable as recreation leave, annual leave, long service leave or sick leave), or
(q) that would be exempt from the payment of income tax by the employee under section 23 (z) of the Income Tax Assessment Act 1936 of the Commonwealth, or
(r) by a joint government enterprise that has the function of allocating funds for water savings projects.
Paragraphs (a1), (a2), (b), (b1), (b2), (c) and (d) of subsection (1) only operate so as to exclude from wages liable to pay-roll tax under this Act wages which are paid or payable by:
(a) a religious institution to a person in respect of time when the person is engaged in religious work of the religious institution,
(b) a public benevolent institution to a person in respect of time when the person is engaged in work of a public benevolent nature,
(c) a public hospital (as referred to in subsection (1) (b)) to a person in respect of time when the person is engaged in work of a kind ordinarily performed in connection with the conduct of public hospitals,
(c1) the Crown in respect of staff employed in connection with a public hospital or an area health service when the staff are engaged in work of a kind ordinarily performed in connection with the conduct of public hospitals or of the area health service concerned,
(c2) the Crown in respect of staff employed under Chapter 1A of the Public Sector Employment and Management Act 2002 in the Government Service to enable the Home Care Service to exercise its functions for time when the staff are engaged in work of a kind ordinarily performed in connection with the conduct of the Home Care Service,
(d) a hospital referred to in subsection (1) (c) to a person in respect of time when the person is engaged in work of a kind ordinarily performed in connection with the conduct of hospitals, or
(e) a school or college (other than a technical school or a technical college) referred to in subsection (1) (d) to a person in respect of time when the person is engaged in work of a kind ordinarily performed in connection with the conduct of schools or colleges (other than technical schools or technical colleges).
Paragraphs (j), (j1) and (k) of subsection (1) only operate so as to exclude from wages liable to pay-roll tax under this Act wages which are paid or payable to employees in respect of time when they are engaged in charitable, benevolent, philanthropic or patriotic work of the non-profit organisation or the charitable work of the organisation, society or institution.
Paragraph (l) of subsection (1) only operates to exclude from wages liable to pay-roll tax under this Act wages which are paid or payable under an apprenticeship contract (within the meaning of the Apprenticeship and Traineeship Act 2001) but, if an application for the approval of the apprenticeship to which the contract relates is dismissed by the Commissioner for Vocational Training (referred to in section 56 of that Act) or the Vocational Training Tribunal of New South Wales (constituted by section 59 of that Act), the exclusion ceases when the application is dismissed.
Paragraph (l1) of subsection (1) only operates to exclude from wages liable to pay-roll tax under this Act wages that are paid or payable under a traineeship contract (within the meaning of the Apprenticeship and Traineeship Act 2001) but, if an application for approval of the traineeship to which the contract relates is dismissed by the Commissioner for Vocational Training (referred to in section 56 of that Act) or the Vocational Training Tribunal of New South Wales (constituted by section 59 of that Act), the exclusion ceases when the application is dismissed.
In this section,
In this section,
The wages liable to pay-roll tax under this Act do not include:
(a) in the case of a first year apprentice (being a person who is recognised by the Department of Education and Training as a first year apprentice under the Apprenticeship and Traineeship Act 2001)—75% of the wages paid or payable to the apprentice, or
(b) in the case of a second year apprentice (being a person who is recognised by the Department of Education and Training as a second year apprentice under the Apprenticeship and Traineeship Act 2001)—50% of the wages paid or payable to the apprentice, or
(c) in the case of a third year apprentice (being a person who is recognised by the Department of Education and Training as a third year apprentice under the Apprenticeship and Traineeship Act 2001)—25% of the wages paid or payable to the apprentice.
Nothing in this section affects section 10 (1) (m).
This section has effect in respect of wages paid or payable for services performed or rendered on or after 1 July 1999 and before 1 July 2002.
The wages payable in respect of a financial year that are liable to pay-roll tax under this Act do not include the exempt component of a motor vehicle allowance paid or payable in respect of the financial year.
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 does not constitute wages for the purposes of section 3AA.
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 constitutes wages for the purposes of section 3AA.
The exempt component of a motor vehicle allowance paid or payable in respect of a financial year is calculated in accordance with the following formula:
where:
The
The Chief Commissioner may, by order in writing, approve the use, by any 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). In such a case, the number of business kilometres travelled during the financial year is to be determined in accordance with the method so approved.
For the purposes of this section, the
(a) in the case of an employee paid an allowance under an award that specifies the allowance as a rate for each kilometre or part of a kilometre travelled by the employee in the course of the person’s employment by means of a motor vehicle provided or maintained by the person (and does not provide for the payment of any fixed amount in addition to that rate)—the rate specified in the award, or
(b) in any other case—the relevant rate for the financial year concerned.
The
(a) in the case of the financial year commencing on 1 July 2005—63 cents per kilometre, or
(b) in the case of any subsequent financial year—the rate prescribed by the regulations under section 28-25 of the Income Tax Assessment Act 1997 of the Commonwealth 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, if no rate is prescribed, a rate specified by the Chief Commissioner by order published in the Gazette.
The wages that are liable to pay-roll tax under this Act 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.
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, the wages liable to taxation under this Act include that allowance only to the extent it exceeds the exempt rate.
For the purposes of this section, the
(a) in the case of a person paid an allowance under an award that specifies the allowance as a rate for each night the person is absent from the person’s usual place of residence—the rate specified in the award, or
(b) in the case of any other person—the relevant rate for the financial year concerned.
The
(a) in the case of the financial year commencing on 1 July 2005—$191.55 for each night the person is absent from the person’s usual place of residence in the course of the person’s employment, or
(b) in the case of any subsequent financial year—the rate specified as the lowest capital city rate under the Crown Employees (Public Service Conditions of Employment) Award 2002, or such other rate as the Chief Commissioner may specify for the purposes of this section, by order published in the Gazette, being the rate as so specified immediately before the commencement of the financial year concerned.
(Repealed)
In this section and sections 11B and 11C:
(Repealed)
Where 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 Chief 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 Chief Commissioner may treat the person:
(a) if the person has conducted that trade or business in Australia during the whole of the financial year—as an employer 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 during that last-mentioned part of the financial year.
(Repealed)
In this section:
(a) the amount ascertained in accordance with section 17 and Schedule 1 in respect of the employer for the financial year commencing on 1 July 1995, and
(b) the amount ascertained in accordance with section 17 and Schedule 2 in respect of the employer for the financial year commencing on 1 July 1996, 1 July 1997, 1 July 1998 or 1 July 1999, and
(c) the amount ascertained in accordance with section 17 and Schedule 3 in respect of the employer for the financial year commencing on 1 July 2000, and
(d) the amount ascertained in accordance with section 17 and Schedule 4 in respect of the employer for the financial year commencing on 1 July 2001 or any subsequent financial year.
Where taxable wages are paid or payable by an employer during a financial year:
(a) the Chief Commissioner, on an application made by that employer in accordance with subsection (3), if the amount of pay-roll tax paid or payable by that employer when the employer made the returns relating to that financial year is greater than the annual amount of pay-roll tax in relation to that employer for that financial year, is to refund to that employer an amount equal to the difference, reduced by the amount of any refund of pay-roll tax made in respect of that financial year to that employer otherwise than under this section before the time of the refund under this section, or
(b) that employer shall, where the amount of pay-roll tax paid or payable by that employer when the employer made the returns relating to that financial year is less than the annual amount of pay-roll tax in relation to that employer for that financial year, pay to the Chief Commissioner as pay-roll tax, within the period during which the employer 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.
(Repealed)
In this section:
(a) the amount ascertained in accordance with section 17 and Schedule 1 in respect of the employer for a prescribed period that falls within the financial year commencing on 1 July 1995, and
(b) the amount ascertained in accordance with section 17 and Schedule 2 in respect of the employer for a prescribed period that falls within the financial year commencing on 1 July 1996, 1 July 1997, 1 July 1998 or 1 July 1999, and
(c) the amount ascertained in accordance with section 17 and Schedule 3 in respect of the employer for a prescribed period that falls within the financial year commencing on 1 July 2000, and
(d) the amount ascertained in accordance with section 17 and Schedule 4 in respect of the employer for a prescribed period that falls within the financial year commencing on 1 July 2001 or any subsequent financial year.
Where in a financial year an employer ceases to pay wages or becomes a member of a group the employer shall, where the amount of pay-roll tax paid or payable by the employer when the employer made returns relating to the prescribed period is less than the total amount of pay-roll tax in relation to that employer for that prescribed period, pay to the Chief Commissioner as pay-roll tax, within the period during which the employer is required to furnish a return under this Act relating to that prescribed period or the last return under this Act relating to that prescribed period, an amount equal to the difference.
Where an employer, who has ceased to pay wages or has become a member of a group, as referred to in subsection (2), in any financial year, subsequently pays or is liable to pay taxable wages or interstate wages during that financial year otherwise than as a member of a group, section 11B applies to and in respect of the employer as if the reference in section 11B (2) to the amount of pay-roll tax paid or payable by that employer included a reference to any pay-roll tax paid or payable by that employer under subsection (2).
An employer who is not already registered shall 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 which 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 which are wholly or partly taxable wages.
The application for registration shall be made to the Chief Commissioner in a form and manner approved by the Chief Commissioner within 7 days after the end of the month concerned.
The Chief Commissioner shall register the applicant as an employer under this Act.
The Chief 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).
Where the Chief 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 that person may, notwithstanding that the person is not required to apply for registration, apply to the Chief Commissioner, in a form and manner approved by the Chief Commissioner, for registration as an employer and thereupon the Chief Commissioner shall register the person as an employer under this Act.
(Repealed)
Every employer who is registered or required to apply for registration in accordance with the provisions of section 12 shall:
(a) except as provided by paragraph (b), within 7 days after the close of each month, furnish to the Chief Commissioner a return relating to that month, and
(b) within 21 days after the close of the month of June in each year, furnish to the Chief Commissioner a return relating to that month and to the adjustment of pay-roll tax paid or payable by the employer during the financial year ending on the close of that month.
Two or more employers who are registered or required to be registered in accordance with the provisions of section 12 may, with the approval of the Chief Commissioner, furnish a joint return for the purposes of this section. If a joint return is furnished and the return would, if furnished by a single employer, comply with subsection (1), then each of the employers concerned is taken to have complied with that subsection.
(Repealed)
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, being fringe benefits:
(a) a reference to the value of the fringe benefits paid or payable by the employer during the month, or
(b) if the employer has made an election under subsection (2) which is in force under this section, a reference to an amount calculated in accordance with that subsection.
An employer who has paid or is liable to pay fringe benefits tax imposed by the Fringe Benefits Tax Act 1986 of the Commonwealth 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 furnished in relation to each of the first 11 months occurring after 30 June in that year—one-twelfth of the amount determined in accordance with subsection (2A) or that part of that amount as, in accordance with section 6, comprises wages liable to pay-roll tax, for the year of tax (within the meaning of that Act) ending on 31 March preceding the commencement of the current financial year, and
(b) in the return furnished in relation to the twelfth month—the amount determined in accordance with subsection (2A) or that part of that amount as, in accordance with section 6, comprises wages liable to pay-roll tax, for the year of tax (within the meaning of that 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.
The amount determined in accordance with this subsection is to be determined in accordance with the formula:
where:
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 (1) (a) or (b) (or subsection (1) (a) and (b)), as the case requires, for the months of that year.
An election under subsection (2) takes effect when it is notified to the Chief Commissioner in the form approved by the Chief Commissioner.
After an employer has made an election under subsection (2), the employer must furnish returns containing amounts calculated in accordance with the election unless the Chief 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 subsection (1) (a).
If an employer ceases to be liable to pay-roll 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 (2) which is in force under this section) the value of the fringe benefits paid or payable by the employer for the period on and from the preceding 1 July until the date on which the employer ceases to be liable to pay-roll tax less the value of the fringe benefits paid or payable by the employer during that period on which pay-roll tax has been paid.
If the Chief Commissioner is of the opinion that tax will not be payable by an employer, or, if paid, would be refunded, the Chief Commissioner may issue a certificate to that employer exempting the employer from furnishing monthly returns in accordance with the provisions of section 13 and any employer to whom such a certificate is issued may refrain from furnishing monthly returns but shall, unless the contrary is expressed in the certificate, furnish a return relating to each financial year within twenty-one days after the close of that financial year.
In subsection (1),
A certificate issued under subsection (1) may be either unconditional or subject to such conditions as are prescribed or as the Chief Commissioner thinks fit.
The Chief Commissioner may, at any time, by notice in writing, revoke any certificate issued under subsection (1).
The issue of a certificate under subsection (1) shall not exempt an employer from the payment of any pay-roll tax, notwithstanding that it may have the effect of postponing the time for payment of any pay-roll tax.
A certificate in force, immediately before the commencement of this Act, under the Commonwealth Act exempting an employer from furnishing monthly returns shall be deemed to be a certificate issued by the Chief Commissioner under subsection (1) and any conditions to which such a certificate was subject shall be deemed to be conditions imposed by the Chief Commissioner under subsection (2).
(Repealed)
In this Part:
Each member of the group (other than the designated group employer) is liable to pay as pay-roll tax for the financial year the amount of dollars calculated by adding together:
(a) the pay-roll tax liability of the member for the first 2 quarters of the financial year, and
(b) the pay-roll tax liability of the member for the last 2 quarters of the financial year.
The pay-roll tax liability of a member referred to in subclause (5) for the first 2 quarters of the financial year is the amount of dollars calculated in accordance with the following formula:
The pay-roll tax liability of a member referred to in subclause (5) for the last 2 quarters of the financial year is the amount of dollars calculated in accordance with the following formula:
This Part applies only to an employer who is a member of a group for which there is no designated group employer.
In this Part:
None of the members of a group is liable to pay pay-roll tax for the financial year if the total taxable wages and interstate wages paid or payable by the group during that year is less than $600,000.
If the total taxable wages and interstate wages paid or payable by a group during the financial year is $600,000 or more, each member of the group is liable to pay as pay-roll tax for that year the amount of dollars calculated by adding together:
(a) the pay-roll tax liability of the member for the first 2 quarters of the financial year, and
(b) the pay-roll tax liability of the member for the last 2 quarters of the financial year.
The pay-roll tax liability of a member for the first 2 quarters of the financial year is the amount of dollars calculated in accordance with the following formula:
The pay-roll tax liability of a member for the last 2 quarters of the financial year is the amount of dollars calculated in accordance with the following formula:
In this Schedule:
(Sections 7, 11B, 11C, 16K and 16L)
This Part applies only to an employer who is not a member of a group.
In this Part:
An employer is not liable to pay pay-roll tax for a financial year if the total taxable wages and interstate wages paid or payable by the employer during that year is less than $600,000.
If the total taxable wages and interstate wages paid or payable by an employer during a financial year is $600,000 or more, the employer is liable to pay as pay-roll tax for that year the amount of dollars calculated in accordance with the following formula:
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:
None of the members of a group is liable to pay pay-roll tax for the financial year if the total taxable wages and interstate wages paid or payable by the group during that year is less than $600,000.
If the total taxable wages and interstate wages paid or payable by a group during the financial year is $600,000 or more, pay-roll tax is payable as provided by subclauses (2) and (3).
The designated group employer for the group is liable to pay as pay-roll tax for the financial year the amount of dollars calculated in accordance with the following formula:
Each member of the group (other than that designated group employer) is liable to pay as pay-roll tax for the financial year the amount of dollars calculated in accordance with the following formula:
This Part applies only to an employer who is a member of a group for which there is no designated group employer.
In this Part:
None of the members of a group is liable to pay pay-roll tax for the financial year if the total taxable wages and interstate wages paid or payable by the group during that year is less than $600,000.
If the total taxable wages and interstate wages paid or payable by a group during the financial year is $600,000 or more, each member of the group is liable to pay as pay-roll tax for that year the amount of dollars calculated in accordance with the following formula:
In this Schedule:
(a) for the financial year commencing on 1 July 2001—6.2, or
(b) for a financial year commencing on 1 July 2002 or 1 July in any subsequent year—6.0.
(Repealed)
(Section 50A)
The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:
• State Revenue Legislation (Amendment) Act 1994
• State Revenue Legislation Further Amendment Act 1995
• State Revenue Legislation Further Amendment Act 1996
• State Revenue Legislation (Miscellaneous Amendments) Act 1996
• State Revenue Legislation (Miscellaneous Amendments) Act 1998
• State Revenue Legislation Further Amendment Act 1999
• State Revenue Legislation Amendment Act 2000
• State Revenue Legislation Further Amendment Act 2000
• State Revenue Legislation Amendment Act 2001
• State Revenue Legislation Amendment (Budget) Act 2002
• Pay-roll Tax Legislation Amendment (Avoidance) Act 2002
• State Revenue Legislation Amendment Act 2003
• State Revenue Legislation Further Amendment Act 2003 (to the extent that it amends this Act)
• State Revenue Legislation Amendment Act 2005
• State Revenue Legislation Further Amendment Act 2005
• State Revenue and Other Legislation Amendment (Budget Measures) Act 2006 (to the extent that it amends this Act)
• State Revenue Legislation Amendment Act 2006
Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later day.
To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
Sections 11B, 11C, 16K and 16L, and clauses 5 and 6 of Schedule 1, as in force immediately before 1 July 1989, continue to have effect in relation to the adjustment of pay-roll tax for the financial year commencing on 1 July 1988, and earlier financial years, as if the amendments made by Schedule 3 to the amending Act had not been enacted.
This clause is taken to have commenced on 1 July 1989.
Subclause (1) re-enacts (with minor modifications) section 4 (2) of the amending Act. Subclause (1) is a transferred provision to which section 30A of the Interpretation Act 1987 applies.
In this clause,
Without affecting the liability of an employer to pay-roll tax, an employer is not required to specify taxable wages, comprising fringe benefits, in a return relating to the month of January, February or March 1990.
The taxable wages, comprising fringe benefits, to be specified in a return relating to the month of April, May or June 1990 are to be determined in accordance with this clause.
The amount of taxable wages, comprising fringe benefits, required to be specified in the return relating to the month of April 1990 is:
(a) the value of the fringe benefits paid or payable by the employer during the months of January, February, March and April 1990, or
(b) if the employer has made an election under subclause (4), the amount calculated in accordance with that subclause.
An employer who has paid or is liable to pay fringe benefits tax imposed by the Fringe Benefits Tax Act 1986 of the Commonwealth in relation to each quarter during the year of tax (within the meaning of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth) ending on 31 March 1990 may elect to include in the return relating to the month of April 1990 as the value of the fringe benefits paid or payable by the employer during that month one-third of the fringe benefits taxable amount, or that part of that amount as, in accordance with section 6 (as in force on 1 January 1990), comprises wages liable to pay-roll tax, for that year of tax ending on 31 March 1990.
The amount of taxable wages, comprising fringe benefits, required to be specified in a return relating to the month of May or June 1990 is:
(a) the value of the fringe benefits paid or payable by the employer during the relevant month, or
(b) if the employer has made an election under subclause (4), one-twelfth of the fringe benefits taxable amount, or that part of that amount as, in accordance with section 6 (as in force on 1 January 1990), comprises wages liable to pay-roll tax, for the year of tax ending on 31 March 1990, unless the employer is able to satisfy the Chief Commissioner that the employer did not pay any fringe benefits during the month concerned.
An employer may not include in a return relating to the month of July 1990, or any subsequent month, as the value of fringe benefits paid or payable by the employer during that month an amount calculated in accordance with section 13A (2), as amended by the amending Act, unless the employer has made an election under that subsection which is in force under section 13A of the Act, as so amended.
This clause is taken to have commenced on 1 January 1990.
Subclauses (1)–(6) re-enact (with minor modifications) section 4 of the amending Act. Subclauses (1)–(6) are transferred provisions to which section 30A of the Interpretation Act 1987 applies.
In this clause:
The amendments made by Schedule 6 (3) (a)–(e) and (g) to the State Revenue Legislation (Amendment) Act 1994 extend to wages paid or payable before 1 July 1994 but not so as to affect exemptions already granted in respect of wages paid or payable before that date.
In this Part,
Money paid by an employer, after 30 June 1996, in respect of a defined benefit superannuation scheme or an unfunded scheme, that is alleged by the employer to be paid in order to make up a deficiency in the scheme, as at 30 June 1996, relating to a benefit payable in respect of services rendered by an employee or employees on or before that date, must be evidenced to the satisfaction of the Chief Commissioner in the employer’s records for pay-roll tax purposes.
In particular, the employer’s records must show the manner of calculation of the deficiency and any actuarial basis for it.
For the purposes of subclause (2) and of any assessment under section 18 to which that subclause is material, the certificate of a fellow or accredited member of the Institute of Actuaries of Australia to the effect that the actuarial basis on which an amount is calculated as a deficiency is justified is prima facie evidence of that fact.
Without limiting the generality of any of the provisions of section 18, the Chief Commissioner, on an assessment under that section, is entitled to assume that an appropriation of money after 30 June 1996 as a superannuation benefit is an amount paid or payable in respect of the services of an employee or employees after that date, if records are not kept as this clause requires.
(Repealed)
Regulations under clause 1 may make provision for or with respect to:
(a) determining whether, and the extent to which, any money 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 for the purposes of this Act as money paid or payable in respect of a particular employee, and
(b) determining what portion of an amount paid on or after 1 July 1996 by an employer to a fund or scheme that is wholly or partly unfunded, being an amount paid in respect of an employee (or that is taken, by virtue of regulations made for the purposes of paragraph (a), to have been so paid) who rendered services to the employer on or after, as well as before, 1 July 1996 is to be regarded, for the purposes of this Act, as having been paid in respect of services rendered by the employee before that date.
An amount, benefit or payment paid or payable, or provided, on or after 1 July 1999 under an employment agency contract within the meaning of section 3C that was entered into before the date of commencement of that section is liable to pay-roll tax under this Act, subject to section 3C (4).
An order made under section 16H that is in force immediately before the commencement of the amendments made to that section by the State Revenue Legislation (Miscellaneous Amendments) Act 1998 and that could not have been made if those amendments had been in force at the time the order was made ceases to have effect on 1 July 1999 if it does not cease to have effect on an earlier date.
Part 5A extends to an assessment amount that includes pay-roll tax that a corporation first became liable to pay before the commencement of that Part.
A compliance notice may be served in respect of a failure to pay such an assessment amount, whether the notice of assessment was issued by the Chief Commissioner before or after the commencement of Part 5A.
However, Part 5A does not make a person who was a director of a corporation before the commencement of Part 5A but is not a director of the corporation at that commencement liable for the payment of an assessment amount owed by the corporation, unless the person again becomes a director of the corporation at any time after the commencement of Part 5A.
The amendment made to section 7 (1) (b) by Schedule 3 [2] to the State Revenue Legislation Amendment Act 2001, insofar as it replaces the reference to July 1996 with a reference to June 1996, is taken to have taken effect on 1 July 1996.
The amendment made to section 3AA by the State Revenue Legislation Amendment (Budget) Act 2002 applies to and in respect of eligible termination payments paid or payable on or after 1 July 2002.
The amendments made to sections 9 and 13A by the State Revenue Legislation Amendment (Budget) Act 2002 apply to a fringe benefit the value of which was paid or payable on or after 1 July 2002.
Section 10 (1) (l) applies to wages that are paid or payable for services performed or rendered on or after 1 July 2002.
The repeal of section 3AA (6) by the Pay-roll Tax Legislation Amendment (Avoidance) Act 2002 does not apply in respect of a payment referred to in section 3AA (5) or (6B) that is paid or payable in a financial year (or any part of a financial year) that commenced before 1 July 2003.
An order made by the Chief Commissioner under section 16H before the repeal of that section by the Pay-roll Tax Legislation Amendment (Avoidance) Act 2002, and in force immediately before that repeal, is taken on that repeal to have been made under section 16B, as substituted by the Pay-roll Tax Legislation Amendment (Avoidance) Act 2002.
Part 5B extends to a contract entered into before the commencement of that Part.
However, Part 5B does not apply in respect of any pay-roll tax that is due and payable, or becomes due and payable, in respect of wages paid or payable for work done before the commencement of that Part.
Section 10 (1) (l1), as inserted by the State Revenue Legislation Amendment Act 2003, does not operate to exclude from wages liable to pay-roll tax under this Act any wages paid or payable to a trainee before 1 January 2004.
Anything commenced to be done under Part 5A before the date of its repeal by the State Revenue Legislation Further Amendment Act 2003 may be continued to be done after its repeal and may be completed as if Part 5A continued in force.
Nothing in this clause limits or otherwise affects section 30 of the Interpretation Act 1987.
Any act, matter or thing that, immediately before the repeal of the Pay-roll Tax Regulation 1998, had effect under that Regulation continues to have effect under this Act.
In particular, the reference in Schedule 1C to the first financial year in which an employer chooses to adopt the averaging method includes a reference to a financial year in which that method was adopted under that Regulation before the repeal of that Regulation.
The employee share scheme amendments have effect as if those amendments had commenced on 1 July 2003, subject to this clause.
Any wages constituted by the grant of a share or option in the financial year commencing 1 July 2003 or 1 July 2004 are taken to be paid or payable on the date on which they would be paid or payable under the employee share scheme amendments, or the date on which they would have been paid or payable under the former provisions, whichever the employer elects.
An employer who included a contribution to a share scheme in the taxable wages for the employer for the financial year commencing 1 July 2003 or 1 July 2004, being a contribution that would be the grant of an option within the meaning of section 3AD had the employee share scheme amendments been in force when the contribution was made, is taken to have elected to treat the grant date of the option as the date on which the wages constituted by that option are paid or payable.
A grant of a share or option in the financial year commencing 1 July 2003 or 1 July 2004 may be valued in accordance with the employee share scheme amendments, or the former provisions, whichever the employer elects.
Anything done or omitted to be done on or after 1 July 2003 and before the date of assent to the State Revenue Legislation Amendment Act 2005, that would have been validly done or omitted if the employee share scheme amendments had been in force at the time that it was done or omitted, is taken to have been validly done or omitted.
In this clause:
The financial planner exemption provisions have effect as if those provisions had commenced on 1 July 2003.
Anything done or omitted to be done on or after 1 July 2003 and before the date of assent to the State Revenue Legislation Amendment Act 2005, that would have been validly done or omitted if the financial planner exemption provisions had been in force at the time that it was done or omitted, is taken to have been validly done or omitted.
For the purpose of applying the financial planner exemption provisions in respect of the financial year commencing on 1 July 2003:
(a) a person is taken to have been an AFS licence holder during that part of the financial year that occurred before 11 March 2004 if the person was an AFS licence holder on 11 March 2004, and
(b) a person is taken to have been an AFS licence holder during any period occurring before 11 March 2004 in which the person held a licence, registration or other authority, of an equivalent nature to an Australian financial services licence under the Corporations Act 2001 of the Commonwealth, under the legislation in force at the time, and
(c) a person is taken to be an authorised representative of an AFS licence holder during any period occurring before 11 March 2004 in which the person was the representative (within the meaning of the Corporations Act 2001 of the Commonwealth) of a person registered as referred to in paragraph (b).
In this clause:
The employee share scheme amendments have effect as if those amendments had commenced on 1 July 2005, subject to this clause.
An employer who included the grant of a share in the taxable wages for the employer for the financial year commencing 1 July 2005 is taken to have elected to treat the grant date of the share as the date on which the wages constituted by the grant of that share are paid or payable.
Liability for pay-roll tax in respect of any shares or options granted by an employer on or after 1 July 2003, but before 1 July 2005, is to be determined in accordance with this Act as amended by the employee share scheme amendments, if the employer so elects.
Anything done or omitted to be done on or after 1 July 2003 and before the date of assent to the State Revenue Legislation Amendment Act 2006, that would have been validly done or omitted if the employee share scheme amendments had been in force at the time that it was done or omitted, is taken to have been validly done or omitted.
In this clause:
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