Pay-roll Tax Regulation 1998 (NSW)

Part 1Preliminary1Name of Regulation

This Regulation is the Pay-roll Tax Regulation 1998.

2Commencement

This Regulation commences on 1 July 1998.

3Definitions

In this Regulation:

award means:

• (a)

  a State industrial agreement within the meaning of the Industrial Relations Act 1996, or

• (b)

  any other agreement with respect to salaries or wages entered into under the provisions of 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 agreement referred to in paragraph (a) or (b).

business journey means:

• (a)

  a journey undertaken in a motor vehicle by a person otherwise than in the application of the vehicle to a private use, being an application that, if the person is paid a motor vehicle allowance for that use, results in the provision of a fringe benefit (within the meaning of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth) by the employer, or

• (b)

  a journey undertaken in a motor vehicle by a person in the course of producing assessable income of the person (within the meaning of the Income Tax Assessment Act 1936 of the Commonwealth).

the Act means the Pay-roll Tax Act 1971.

4Notes

The explanatory note and table of contents do not form part of this Regulation.

Part 2Motor vehicle allowances5Motor vehicle allowances(1)

For the purposes of section 3AA (7) of the Act, a motor vehicle allowance is a prescribed allowance.

(2)

For the purposes of section 3AA (7) (b) of the Act, the prescribed rate in relation to a motor vehicle allowance is:

• (a)

  in the case of a person paid an allowance under an award that specifies the allowance as a rate for each kilometre or part of a kilometre travelled by the person in the course of the person’s employment by means of a motor vehicle provided or maintained by the person—the rate specified in the award, or

• (b)

  in the case of any other person—53.5 cents for each kilometre or part of a kilometre travelled by the person in the course of business journeys by means of a motor vehicle provided or maintained by the person.

6Records to be kept

For the purposes of section 44 (1B) (c) of the Act, the prescribed details to be kept of any motor vehicle allowance paid or payable to a person are:

• (a)

  the details kept in accordance with the method set out in clause 7 (the continuous recording method), or

• (b)

  the details kept in accordance with the method set out in clause 8 (the averaging method),

whichever the employer prefers.

7Continuous recording method

The continuous recording method requires the following details to be kept:

• (a)

  the odometer readings at the beginning and end of each business journey undertaken by the person during a financial year by means of a motor vehicle provided or maintained by the person,

• (b)

  the specific purpose for which each such business journey was taken,

• (c)

  the distance travelled by the person during the financial year in the course of all such business journeys, calculated on the basis of the odometer readings referred to in paragraph (a).

8Averaging method(1)

The averaging method requires the following details to be kept for the first financial year in which an employer chooses to adopt that method:

• (a)

  the odometer readings at the beginning and end of each business journey undertaken by the person during the relevant 12-week period by means of a motor vehicle provided or maintained by the person,

• (b)

  specific purpose for which each such business journey was taken,

• (c)

  distance travelled by the person during the relevant 12-week period in the course of all such business journeys, calculated on the basis of the odometer readings referred to in paragraph (a),

• (d)

  odometer readings at the beginning and end of the relevant 12-week period for each vehicle provided or maintained by the person for the purpose of undertaking business journeys,

• (e)

  distance travelled by each such vehicle during the relevant 12-week period, calculated on the basis of the odometer readings referred to in paragraph (d),

• (f)

  distance travelled by the person in the course of business journeys undertaken by means of each such vehicle during the relevant 12-week period, calculated as a percentage of the distance travelled by that vehicle during that period,

• (g)

  distance travelled by the person in the course of business journeys undertaken by means of each such vehicle during the financial year, calculated on the basis that the percentage for each such vehicle for the financial year is the same as the percentage for that vehicle for the relevant 12-week period.

(2)

After the first financial year in which odometer details are recorded in accordance with subclause (1), the calculation referred to in subclause (1) (g) is to be employed for the purpose of calculating the distance travelled by the person in the course of business journeys undertaken by means of each vehicle referred to in subclause (1) during each of the next succeeding 4 financial years, calculated on the basis that the percentage for each such vehicle for the financial year concerned is the same as the percentage for that vehicle for the relevant 12-week period.

(3)

After the first financial year in which odometer details are recorded in accordance with subclause (1), an employer is not required to record the details referred to in that subclause for the person for the next succeeding 4 financial years unless:

• (a)

  the Chief Commissioner serves a notice on the employer before the commencement of a financial year during that period directing the employer to keep the details referred to in subclause (1) for that financial year, or

• (b)

  the employer wishes to use the recording method referred to in this clause for one or more additional motor vehicles used by the person in any financial year or for any other reason.

(4)

In a situation referred to in subclause (3) (b), an employer may make a new record of odometer readings for a financial year in accordance with subclause (1) to replace the details previously recorded for the person. The provisions of subclause (3) then apply in relation to the new record.

(5)

An employer who has adopted and employed the method of recording referred to in this clause for a person for 4 successive financial years must, in the next succeeding financial year, make a fresh recording of the details specified in subclause (1) if the employer intends to continue to use the same method of recording for the person.

(6)

If the odometer of a motor vehicle is replaced or recalibrated during any period for which its readings are relevant for the purposes of this clause, the odometer readings immediately before and after the replacement or recalibration are to be recorded.

(7)

For the purposes of making the calculation referred to in subclause (1) (g) for the financial year in which this clause commences, an employer may estimate the distance travelled by a motor vehicle during any part of that financial year that occurs before that commencement.

9Meaning of “relevant 12-week period”(1)

In clause 8, relevant 12-week period means a continuous period of at least 12 weeks, selected by the employer, throughout which a motor vehicle is provided or maintained by a person. If the motor vehicle is provided or maintained for less than 12 weeks, the period must be the entire period for which the motor vehicle is provided or maintained.

(2)

The period may overlap the start or end of the financial year, so long as it includes part of the year.

(3)

If the averaging method is used for 2 or more motor vehicles for the same financial year, the odometer readings for those motor vehicles must cover periods that are concurrent.

10Replacing one motor vehicle with another motor vehicle(1)

For the purposes of using the averaging method, an employer may nominate one motor vehicle as having replaced another motor vehicle with effect from a day specified in the nomination.

(2)

After the nomination takes effect, the replacement motor vehicle is treated as the original motor vehicle, and the original motor vehicle is treated as a different motor vehicle. An employer need not repeat for the replacement vehicle the steps already taken for the original motor vehicle.

(3)

An employer must record the nomination in writing in the financial year in which the nomination takes effect.

(4)

However, the Chief Commissioner may allow an employer to record the nomination at a later time.

(5)

A nomination made for the purposes of this clause is a prescribed detail to which section 44 (1B) (c) of the Act applies.

Part 3Accommodation allowances11Accommodation allowances(1)

For the purposes of section 3AA (7) of the Act, an accommodation allowance is a prescribed allowance.

(2)

For the purposes of section 3AA (7) (b) of the Act, the prescribed rate in relation to an accommodation allowance is:

• (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—$130 for each night the person is absent from the person’s usual place of residence in the course of the person’s employment.

Part 3AInclusion of trust distributions as wages12Determination of minimum wage rate applicable in respect of work done for a trust(1)

For the purposes of paragraph (c) of the definition of market rate in section 3AC (7) of the Act, the minimum wage rate applicable to work done for a trust by a person during a financial year is to be determined in accordance with one of the following methods:

• (a)

  the hourly rate method, as set out in clause 12A,

• (b)

  the daily rate method, as set out in clause 12B,

• (c)

  the weekly rate method, as set out in clause 12C.

(2)

A person who makes a distribution to another person as beneficiary under a trust may determine which of the above methods is to be used in determining the minimum wage rate applicable in respect of any work done for the trust by the other person in a financial year.

(3)

The same method must be used in respect of all work done for the trust by the person in the financial year.

12AHourly rate method(1)

The hourly rate method requires the average weekly wage for the financial year in which the work was done for the trust by the person to be divided by 40 in order to determine the hourly wage rate for the work.

(2)

The minimum wage rate applicable to the work done for the trust by the person during the financial year is then determined by multiplying the hourly wage rate for the work by the total number of hours during the financial year in which work was done for the trust by the person.

12BDaily rate method(1)

The daily rate method requires the average weekly wage for the financial year in which the work was done for the trust by the person to be divided by 5 in order to determine the daily wage rate for the work.

(2)

The minimum wage rate applicable to work done for the trust by the person during the financial year is then determined by multiplying the daily wage rate for the work by the total number of days during the financial year on which work was done for the trust by the person (regardless of the number of hours worked on those days).

12CWeekly rate method(1)

The weekly rate method requires the minimum wage rate applicable to work done for the trust by a person during the financial year to be determined by multiplying the average weekly wage for the financial year by the total number of weeks (or parts of a week) during the financial year in which work was done for the trust by the person (regardless of the number of hours or days worked in those weeks).

(2)

In this clause:

week means a period of 7 days starting on a Monday.

12DAverage weekly wage—meaning

In this Part:

average weekly wage for a financial year means the full-time adult ordinary time earnings (original) of persons for New South Wales in the February quarter immediately preceding the financial year, as set out in Average Weekly Earnings, Australia published by the Australian Bureau of Statistics.

Part 4Miscellaneous13Repeal(1)

The Pay-roll Tax Regulation 1993 is repealed.

(2)

Any act, matter or thing that, immediately before the repeal of the Pay-roll Tax Regulation 1993, had effect under that Regulation continues to have effect under this Regulation.