Payroll Tax Act 2009 (SA)
South Australia
Payroll Tax Act 2009
An Act to re-enact and modernise the law relating to payroll tax; to harmonise payroll tax law with other States; and for other purposes.
Contents
Part 1—Preliminary
1 Short title
3 Interpretation
4Taxation Administration Act 1996
5 Act binds the Crown
Part 2—Imposition of payroll tax
Division 1—Imposition of tax
6 Imposition of payroll tax
7 Who is liable for payroll tax?
8 Amount of payroll tax
9 When must payroll tax be paid?
Division 2—Taxable wages
10 What are taxable wages
11 Wages that are taxable in this jurisdiction
11A Jurisdiction in which employee is based
11B Jurisdiction in which employer is based
11C Place and date of payment of wages
Division 3—Other
12 Liability for payroll tax not affected by subsequent amendment to Act
Part 3—Wages
Division 1—General concept of wages
13 What are wages?
Division 2—Fringe benefits
14 Wages include fringe benefits
15 Value of wages comprising fringe benefits
16 Employer election regarding taxable value of fringe benefits
Division 3—Superannuation contributions
17 Wages include superannuation contributions
Division 4—Shares and options
18 Inclusion of grant of shares and options as wages
19 Choice of relevant day
20 Deemed choice of relevant day in special cases
21 Effect of rescission, cancellation of share or option
22 Grant of share pursuant to exercise of option
23 Value of shares and options
24 Inclusion of shares and options granted to directors as wages
26 Place where wages are payable
Division 5—Termination payments
27 Definitions
28 Termination payments
Division 6—Allowances
29 Motor vehicle allowances
30 Accommodation allowances
Division 7—Contractor provisions
31 Definitions
32 What is a relevant contract?
33 Persons taken to be employers
34 Persons taken to be employees
35 Amounts under relevant contracts taken to be wages
36 Liability provisions
Division 8—Employment agents
37 Definitions
38 Persons taken to be employers
39 Persons taken to be employees
40 Amounts taken to be wages
41 Liability provisions
42 Agreement to reduce or avoid liability to payroll tax
Division 9—Other
43 Value of wages paid in kind
44 GST excluded from wages
45 Wages paid by group employers
46 Wages paid by or to third parties
47 Agreement etc to reduce or avoid liability to payroll tax
Part 4—Exemptions
Division 1—Non-profit organisations
48 Non-profit organisations
Division 2—Education and training
49 Schools and educational services and training
50 Community Development Employment Project
Division 3—Health services providers
51 Health services providers
52 Division not to limit other exemptions
Division 4—Maternity and adoption leave
53 Maternity and adoption leave
54 Administrative requirements for exemption
Division 5—Volunteer firefighters and emergency service volunteers
55 Volunteer firefighters
56 Emergency service volunteers
57 Limitation of exemption
Division 6—Local government
58 Councils
59 Limitation on local government exemptions
60 Specified activities
Division 7—Other government and defence
61 State Governors
62 Defence personnel
63 War Graves Commission
Division 8—Foreign government representatives and international agencies
64 Consular and non‑diplomatic representatives
65 Trade commissioners
66 Australian–American Fulbright Commission
Division 9—Services outside Australia
66A Wages paid or payable for or in relation to services performed in other countries
Part 5—Grouping of employers
Division 1—Interpretation
67 Definitions
68 Grouping provisions to operate independently
Division 2—Business groups
69 Constitution of groups
70 Groups of corporations
71 Groups arising from the use of common employees
72 Groups of commonly controlled businesses
73 Groups arising from tracing of interests in corporations
74 Smaller groups subsumed by larger groups
Division 3—Business groups—tracing of interests in corporations
75 Application
76 Direct interest
77 Indirect interest
78 Aggregation of interests
Division 4—Miscellaneous
79 Exclusion of persons from groups
80 Designated group employers
81 Joint and several liability
Part 6—Adjustments of tax
82 Determination of correct amount of payroll tax
83 Annual adjustment of payroll tax
84 Adjustment of payroll tax when employer changes circumstances
85 Special provision where wages fluctuate
Part 7—Registration and returns
86 Registration
87 Returns
Part 8—Collection and recovery of tax
Division 1—Agents and trustees generally
88 Application
89 Agents and trustees are answerable
90 Returns by agent or trustee
91 Liability to pay tax
92 Indemnity for agent or trustee
Division 2—Special cases
93 Tax not paid during lifetime
94 Payment of tax by executors or administrators
95 Assessment if no probate within 6 months of death
96 Person in receipt or control of money for absentee
97 Agent for absentee principal winding‑up business
98 Recovery of tax paid on behalf of another person
99 Liquidator to give notice
Part 9—General
100 Returns etc to be completed in manner approved by Commissioner
101 Regulations
Schedule 1—Calculation of payroll tax liability
Part 1—Interpretation
1 Interpretation
Part 2—Employers who are not members of a group
2 Application of Part
3 Interpretation
4 Payroll of employer under threshold
5 Payroll of employer over threshold
Part 3—Groups with a designated group employer
6 Application of Part
7 Interpretation
8 Payroll of group under threshold
9 Payroll of group over threshold
Part 4—Motor vehicle allowances
10 Continuous recording method
11 Averaging method
12 Meaning of relevant 12‑week period
13 Replacing 1 motor vehicle with another motor vehicle
14 Changing method of recording
15 Definition
Schedule 1A—Calculation of payroll tax liability—2018/19 financial year
Part 1—Preliminary
1 Application
Part 2—Calculation of payroll tax liability—first period of 2018/19 financial year
Division 1—Interpretation
2 Interpretation
Division 2—Employers who are not members of a group
3 Application of Division
4 Interpretation
5 Payroll of employer under threshold
6 Payroll of employer over threshold
Division 3—Groups with a designated employer
7 Application of Division
8 Interpretation
9 Payroll of group under threshold
10 Payroll of group over threshold
Part 3—Calculation of payroll tax liability—second period of 2018/19 financial year
Division 1—Interpretation
11 Interpretation
Division 2—Employers who are not members of a group
12 Application of Division
13 Interpretation
14 Payroll of employer under threshold
15 Payroll of employer over threshold
Division 3—Groups with a designated employer
16 Application of Division
17 Interpretation
18 Payroll of group under threshold
19 Payroll of group over threshold
Schedule 2—South Australia specific provisions
Part 1—Introduction
1 Introduction to Schedule
2 Interpretation
Part 2—Calculation of monthly payroll tax
Division 2—Employers who are not members of a group
4 Application of Division
5 Amount of payroll tax to be paid each month
6 Deductible amount from taxable wages
Division 3—Groups with a designated group employer
7 Application of Division
8 Amount of payroll tax to be paid each month
9 Deductible amount for groups
Part 3—Exemptions
Division 1—Education and training
10 Education and training
Division 2—Health services providers
11 What is a health services provider?
Division 3—Other exemptions
12 Hospitals
13 Family planning
14 Kindergartens
15 Child care
16 Universities
17 Film production
17A JobKeeper Payment
Part 4—Returns and refunds
18 Further returns
19 Notification of change in circumstances
20 Time limit for refund applications
Part 5—General
21 Disregarding cents
Schedule 3—Transitional provisions
Part 2—Transitional provisions
2 Interpretation
3 Savings and transitional provisions
4 Continuation of repealed Act and regulations
5 Application of this Act and repealed Act
6 Superannuation contributions not readily related to particular employees
7 Registration of employers
8 Designated group employers
9 References
Part 3—Transitional provisions—Employee shares and options
10 Assessment and payment of payroll tax in relation to employee shares and options
11 Determination of vesting date and value of employee shares and options
Legislative history
The Parliament of South Australia enacts as follows:
Part 1—Preliminary
1—Short title
This Act may be cited as the Payroll Tax Act 2009.
3—Interpretation
In this Act, unless the contrary intention appears—
ABN means the ABN (Australian Business Number) for an entity within the meaning of the A New Tax System (Australian Business Number) Act 1999 of the Commonwealth;
agent includes—
(a)a person who, in this jurisdiction, for or on behalf of another person outside this jurisdiction, holds or has the management or control of the business of that other person; and
(b)a person who, by an order of the Commissioner, is declared to be an agent or the sole agent for any other person for the purposes of this Act and on whom notice of that order has been served;
Australia means the States of the Commonwealth and the Territories;
Australian jurisdiction means a State or a Territory;
coastal waters of South Australia has the same meaning as coastal waters of the State has in relation to South Australia in the Coastal Waters (State Powers) Act 1980 of the Commonwealth;
the Commissioner means the person appointed or acting as the Commissioner of State Taxation, and includes a person appointed or acting as a Deputy Commissioner of State Taxation (see Part 9 of the Taxation Administration Act 1996);
company includes all bodies and associations (corporate and unincorporate) and partnerships;
corporation has the same meaning as in section 9 of the Corporations Act 2001 of the Commonwealth;
corresponding law means a law in force in another State or a Territory relating to the imposition upon employers of a tax on wages paid or payable by them and the assessment and collection of that tax;
council means a council or council subsidiary under the Local Government Act 1999;
designated group employer means a member designated for a group in accordance with section 80;
director of a company includes a member of the governing body of the company;
employer means a person who pays or is liable to pay wages and includes—
(a)the Crown in any of its capacities; and
(b)a person taken to be an employer by or under this Act; and
(c)a public, local or municipal body or authority constituted under the law of the Commonwealth or of a State or Territory unless, being an authority constituted under the law of the Commonwealth, it is immune from the operation of this Act;
employment agency contract has the meaning given in section 37;
employment agent has the meaning given in section 37;
exempt wages mean wages that are declared by or under this Act to be exempt wages;
FBTA Act means the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth;
2018/19 financial year means the financial year commencing on 1 July 2018;
financial year means each year commencing on 1 July;
fringe benefit has the same meaning as in the FBTA Act but does not include—
(a)a tax‑exempt body entertainment fringe benefit within the meaning of that Act; or
(b)anything that is prescribed by the regulations under this Act not to be a fringe benefit for the purposes of this definition;
group has the meaning given in section 67;
GST has the same meaning as it has in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth except that it includes notional GST of the kind for which payments may be made under Part 3 of the National Tax Reform (State Provisions) Act 2000 by a person that is an exempt entity within the meaning of that Act;
instrument includes a cheque, bill of exchange, promissory note, money order or a postal order issued by a post office;
interstate wages means wages that are taxable wages within the meaning of a corresponding law;
ITAA means the Income Tax Assessment Act 1997 of the Commonwealth;
liquidator means the person who, whether or not appointed as liquidator, is the person required by law to carry out the winding‑up of a company;
month means the month of January, February, March, April, May, June, July, August, September, October, November and December;
option means an option or right, whether actual, prospective or contingent, of a person to acquire a share or to have a share transferred or allotted to the person;
paid, in relation to wages, includes provided, conferred and assigned and pay and payable have corresponding meanings;
payroll tax means tax imposed by section 6;
perform, in relation to services, includes render;
registered business address means an address for service of notices under the A New Tax System (Australian Business Number) Act 1999 of the Commonwealth on an entity that has an ABN, as shown in the Australian Business Register kept under that Act;
return period, in relation to an employer, means a period relating to which that employer is required to lodge a return under this Act;
share means a share in a company and includes a stapled security;
superannuation contribution has the meaning given in section 17(2);
taxable wages has the meaning given in section 10;
termination payment has the meaning given in section 27;
Territories means the Australian Capital Territory (including the Jervis Bay Territory) and the Northern Territory;
this jurisdiction means South Australia and the coastal waters of South Australia;
voting share has the same meaning as in section 9 of the Corporations Act 2001 of the Commonwealth;
wages has the meaning given in Part 3.
4—Taxation Administration Act 1996
This Act is to be read together with the Taxation Administration Act 1996 which provides for the administration and enforcement of this Act and other taxation laws.
5—Act binds the Crown
This Act binds the Crown in right of this jurisdiction and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
Nothing in this Act makes the Crown in any of its capacities liable to be prosecuted for an offence.
Part 2—Imposition of payroll tax
Division 1—Imposition of tax
6—Imposition of payroll tax
Payroll tax is imposed on all taxable wages.
Payroll tax is levied and collected for the credit of the Consolidated Account at the Treasury.
7—Who is liable for payroll tax?
The employer by whom taxable wages are paid or payable is liable to pay payroll tax on the wages.
8—Amount of payroll tax
The amount of payroll tax payable by an employer is to be ascertained in accordance with Schedule 1 and Schedule 2.
Despite subsection (1)—
(a)the amount of payroll tax payable by an employer during the 2018/19 financial year is to be ascertained in accordance with Schedule 1A and Schedule 2; and
(b)Schedule 1 Parts 1 to 3 (inclusive) do not apply in relation to the 2018/19 financial year; and
(c)nothing in this subsection is to be taken to affect the operation of Schedule 1 Part 4 during the 2018/19 financial year.
9—When must payroll tax be paid?
A person who is liable to pay payroll tax on taxable wages must pay the tax—
(a)within 7 days after the end of the month in which those wages were paid or payable, other than the month of June; and
(b)within 21 days after the end of the month of June in relation to taxable wages paid or payable in the month of June.
However, if the Commissioner has reason to believe that a person may leave Australia before any payroll tax becomes payable by the person, the tax is payable on the day fixed by the Commissioner by notice served on the person.
Division 2—Taxable wages
10—What are taxable wages
For the purposes of this Act, taxable wages are wages that are taxable in this jurisdiction.
However, exempt wages are not taxable wages.
11—Wages that are taxable in this jurisdiction
For the purposes of this Act, wages are taxable in this jurisdiction if—
(a)the wages are paid or payable by an employer for or in relation to services performed by an employee wholly in this jurisdiction; or
(b)the wages are paid or payable by an employer for or in relation to services performed by an employee in 2 or more Australian jurisdictions, or partly in 1 or more Australian jurisdictions and partly outside all Australian jurisdictions, and—
(i)the employee is based in this jurisdiction; or
(ii)the employer is based in this jurisdiction (in a case where the employee is not based in an Australian jurisdiction); or
(iii)the wages are paid or payable in this jurisdiction (in a case where both the employee and the employer are not based in an Australian jurisdiction); or
(iv)the wages are paid or payable for services performed mainly in this jurisdiction (in a case where both the employee and the employer are not based in an Australian jurisdiction and the wages are not paid or payable in an Australian jurisdiction); or
(c)the wages are paid or payable by an employer for or in relation to services performed by an employee wholly outside all Australian jurisdictions and are paid or payable in this jurisdiction.
Note—
Section 66A provides an exemption for wages paid or payable for services performed wholly in 1 or more other countries for a continuous period of more than 6 months.
The question of whether wages are taxable in this jurisdiction is to be determined by reference only to the services performed by the employee in respect of the employer during the month in which the wages are paid or payable, subject to this section.
Any wages paid or payable by an employer in respect of an employee in a particular month are taken to be paid or payable for or in relation to the services performed by the employee in respect of the employer during that month.
Note—
For example, if wages paid in a month are paid to an employee for services performed over several months, the question of whether the wages are taxable in this jurisdiction is to be determined by reference only to services performed by the employee in the month in which the wages are paid. The services performed in previous months are disregarded. (The services performed in previous months will be relevant to the question of whether wages paid in those previous months are taxable in this jurisdiction.)
If no services are performed by an employee in respect of an employer during the month in which wages are paid or payable to or in relation to the employee—
(a)the question of whether the wages are taxable in this jurisdiction is to be determined by reference only to the services performed by the employee in respect of the employer during the most recent prior month in which the employee performed services in respect of the employer; and
(b)the wages are taken to be paid or payable for or in relation to the services performed by the employee in respect of the employer during that most recent prior month.
If no services were performed by an employee in respect of an employer during the month in which wages are paid or payable to or in relation to the employee or in any prior month—
(a)the wages are taken to be paid or payable for or in relation to services performed by the employee in the month in which the wages are paid or payable; and
(b)the services are taken to have been performed at a place or places where it may be reasonably expected that the services of the employee in respect of the employer will be performed.
All amounts of wages paid or payable in the same month by the same employer in respect of the same employee are to be aggregated for the purposes of determining whether they are taxable in this jurisdiction (as if they were paid or payable for all services performed by the employee in the month in which the wages are paid or payable, or the most recent prior month, as the case requires).
Note—
For example, if 1 amount of wages is paid by an employer in a particular month for services performed in this jurisdiction, and another amount of wages is paid by the same employer in the same month for services performed by the same employee in another Australian jurisdiction, the wages paid are to be aggregated (as if they were paid for all services performed by the employee in that month). Accordingly, subsection (1)(b) would be applied for the purpose of determining whether the wages are taxable in this jurisdiction.
If wages are paid in a different month from the month in which they are payable, the question of whether the wages are taxable in this jurisdiction is to be determined by reference to the earlier of the relevant months.
11A—Jurisdiction in which employee is based
For the purposes of this Act, the jurisdiction in which an employee is based is the jurisdiction in which the employee’s principal place of residence is located.
The jurisdiction in which an employee is based is to be determined by reference to the state of affairs existing during the month in which the relevant wages are paid or payable.
If more than 1 jurisdiction would qualify as the jurisdiction in which an employee is based during a month, the jurisdiction in which the employee is based is to be determined by reference to the state of affairs existing on the last day of that month.
An employee who does not have a principal place of residence is taken, for the purposes of this Act, to be an employee who is not based in an Australian jurisdiction.
In the case of wages paid or payable to a corporate employee, the jurisdiction in which the employee is based is to be determined in accordance with section 11B instead of this section (as if a reference in section 11B to an employer were a reference to an employee).
In this section, a corporate employee is a company that is taken to be an employee under section 34 or 39 or a company to whom a payment is made that is taken to be wages payable to an employee under section 42 or 47.
11B—Jurisdiction in which employer is based
For the purposes of this Act, the jurisdiction in which an employer is based is—
(a)the jurisdiction in which the employer’s registered business address is located (if the employer has an ABN); or
(b)the jurisdiction in which the employer’s principal place of business is located (in any other case).
If wages are paid or payable in connection with a business carried on by an employer under a trust, the employer’s registered business address is the registered business address of the trust or, if the trust does not have an ABN, the registered business address of the trustee of the trust.
If an employer has registered business addresses located in different jurisdictions at the same point in time, the jurisdiction in which the employer is based at that point in time is the jurisdiction in which the employer’s principal place of business is located.
The jurisdiction in which an employer is based is to be determined by reference to the state of affairs existing during the month in which the relevant wages are paid or payable.
If more than 1 jurisdiction would qualify as the jurisdiction in which an employer is based during a month, the jurisdiction in which the employer is based is to be determined by reference to the state of affairs existing on the last day of that month.
An employer who has neither a registered business address nor a principal place of business is taken, for the purposes of this Act, to be an employer who is not based in an Australian jurisdiction.
11C—Place and date of payment of wages
For the purposes of this Act, wages are taken to have been paid at a place if, for the purpose of the payment of those wages—
(a)an instrument is sent or given or an amount is transferred by an employer to a person or a person’s agent at that place; or
(b)an instruction is given by an employer for the crediting of an amount to the account of a person or a person’s agent at that place.
The wages are taken to have been paid on the date that the instrument was sent or given, the amount was transferred or the account credited in accordance with the instruction (as the case requires).
Wages are taken to be payable at the place at which they are paid, subject to this section.
Wages that are not paid by the end of the month in which they are payable are taken to be payable at—
(a)the place where wages were last paid by the employer to the employee; or
(b)if wages have not previously been paid by the employer to the employee—the place where the employee last performed services in respect of the employer before the wages became payable.
If wages paid or payable in the same month by the same employer in respect of the same employee are paid or payable in more than 1 Australian jurisdiction, the wages paid or payable in that month are taken to be paid or payable in the Australian jurisdiction in which the highest proportion of the wages are paid or payable.
Note—
Section 11 requires all wages paid or payable in the same month by the same employer in respect of the same employee to be aggregated for the purpose of determining whether the wages are taxable in this jurisdiction. The above provision ensures only 1 Australian jurisdiction can be considered to be the jurisdiction in which the wages are paid or payable.
Division 3—Other
12—Liability for payroll tax not affected by subsequent amendment to Act
A liability for payroll tax arises and will be assessed in accordance with the provisions of this Act as in force at the time the liability arises and such a liability, once having arisen, is not affected by a subsequent amendment to this Act (except to the extent that the amendment operates retrospectively).
Part 3—Wages
Division 1—General concept of wages
13—What are wages?
For the purposes of this Act, wages mean wages, remuneration, salary, commission, bonuses or allowances paid or payable to an employee, including—
(a)an amount paid or payable by way of remuneration to a person holding an office under the Crown or in the service of the Crown; and
(b)an amount paid or payable under any prescribed classes of contracts to the extent to which that payment is attributable to labour; and
(c)an amount paid or payable by a company by way of remuneration to or in relation to a director of that company; and
(d)an amount paid or payable by way of commission to an insurance or time payment canvasser or collector; and
(e)an amount or benefit that is included as or taken to be wages by any other provision of this Act.
For the purposes of this Act, wages, remuneration, salary, commission, bonuses or allowances are wages—
(a)whether paid or payable at piece work rates or otherwise; and
(b)whether paid or payable in cash or in kind.
(2a)This Act applies in respect of wages referred to in subsection (1)(a) to (e) that are paid or payable to or in relation to a person who is not an employee in the same way as it applies to wages paid or payable to an employee (as if a reference in this Act to an employee included a reference to any such person).
Wages do not include anything that is prescribed by the regulations not to be wages for the purposes of this Act.
Division 2—Fringe benefits
14—Wages include fringe benefits
For the purposes of this Act, wages include a fringe benefit.
(2)Subsection (1) does not apply to benefits that are exempt benefits for the purposes of the FBTA Act (other than deposits to the Superannuation Holding Accounts Special Account within the meaning of the Small Superannuation Accounts Act 1995 of the Commonwealth).
15—Value of wages comprising fringe benefits
For the purposes of this Act, the value of wages comprising a fringe benefit is to be determined in accordance with the formula—
where—
FBT rate is the rate of fringe benefits tax imposed by the FBTA Act that applies when the liability to payroll tax under this Act arises
TV is the value that would be the taxable value of the benefit as a fringe benefit for the purposes of the FBTA Act.
In this Act, a reference to taxable wages that were paid or payable by an employer during a month is, in relation to taxable wages comprising fringe benefits—
(a)a reference to the value of the fringe benefits paid or payable by the employer during the month; or
(b)if an election by the employer is in force under section 16, a reference to an amount calculated in accordance with that section.
In this Act, a reference to taxable wages that were paid or payable by an employer during a year is, in relation to taxable wages comprising fringe benefits, a reference to an amount calculated by adding together the amounts under subsection (2)(a) or (b) (or subsection (2)(a) and (b)) as the case requires, for the months of that year.
16—Employer election regarding taxable value of fringe benefits
An employer who has paid or is liable to pay fringe benefits tax imposed by the FBTA Act in respect of a period of not less than 15 months before 30 June in any year may elect to include as the value of the fringe benefits paid or payable by the employer during the month concerned—
(a)in a return lodged in relation to each of the first 11 months occurring after 30 June in that year—1/12th of the amount determined in accordance with subsection (2) or that part of that amount as, in accordance with section 10, comprises taxable wages for the year of tax (within the meaning of the FBTA Act) ending on 31 March preceding the commencement of the current financial year; and
(b)in the return lodged in relation to the 12th month—the amount determined in accordance with subsection (2) or that part of that amount as, in accordance with section 10, comprises taxable wages for the year of tax (within the meaning of the FBTA Act) ending on 31 March preceding that month, less the total of the amounts of fringe benefits included in the returns for each of the preceding 11 months.
The amount determined in accordance with this subsection is to be determined in accordance with the formula—
where—
AFBA is the aggregate fringe benefits amount within the meaning of section 136 of the FBTA Act
FBT rate is the rate of fringe benefits tax imposed by the FBTA Act that applies when the liability to payroll tax under this Act arises.
An election under subsection (1) takes effect when it is notified to the Commissioner in the form approved by the Commissioner.
After an employer has made an election under subsection (1), the employer must lodge returns containing amounts calculated in accordance with the election unless the Commissioner approves, by notice in writing given to the employer, the termination of the election and allows the employer to include the value referred to in section 15(2)(a).
If an employer ceases to be liable to pay payroll tax, the value of taxable wages comprising fringe benefits to be included in the employer's final return is (irrespective of whether or not the employer has made an election under subsection (1)) the value of the fringe benefits paid or payable by the employer for the period commencing on and including the preceding 1 July until the date on which the employer ceases to be liable to payroll tax, less the value of the fringe benefits paid or payable by the employer during that period on which payroll tax has been paid.
Division 3—Superannuation contributions
17—Wages include superannuation contributions
For the purposes of this Act, wages include a superannuation contribution.
A superannuation contribution is a contribution paid or payable by an employer in respect of an employee—
(a)to or as a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993 of the Commonwealth; or
(b)as a superannuation guarantee charge within the meaning of the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth; or
(c)to or as any other form of superannuation, provident or retirement fund or scheme including—
(i)the Superannuation Holding Accounts Special Account within the meaning of the Small Superannuation Accounts Act 1995 of the Commonwealth; and
(ii)a retirement savings account within the meaning of the Retirement Savings Accounts Act 1997 of the Commonwealth; or
(d)involving—
(i)the crediting of an account of an employee, or any other allocation to the benefit of an employee (other than the actual payment of a contribution), so as to increase the entitlement or contingent entitlement of the employee under any form of superannuation, provident or retirement fund or scheme; or
(ii)the crediting or the debiting of any other account, or any other allocation or deduction, so as to increase the entitlement or contingent entitlement of an employee under any form of superannuation, provident or retirement fund or scheme.
The Treasurer may estimate the contingent liability of an employer for contributions that will be payable to or in respect of an employee who is a member of the old or new scheme of superannuation under the Superannuation Act 1988 or of any other unfunded or partly funded scheme of superannuation, and the Treasurer's estimate is to be treated as a contribution paid or payable by an employer in respect of an employee for the purposes of the definition of superannuation contribution in subsection (2).
For the purposes of this Act, wages that are comprised of the Treasurer's estimate of an employer's contingent liability for superannuation contributions will be taken to be payable as soon as the contingent liability accrues.
The Treasurer's estimate must be based on an actuary's assessment of the employer's cost of the accruing liability for the employee.
Setting aside any money or anything that is worth money as, or as part of, a superannuation fund, superannuation guarantee charge or any other form of superannuation, provident or retirement fund or scheme is taken to be paying a superannuation contribution.
Making a superannuation contribution of anything that is worth money is taken to be paying a superannuation contribution of the amount equal to its value, and its value is to be worked out in accordance with section 43 as if that section referred to the contribution instead of to wages.
For the purposes of this Act, where a superannuation contribution arises under this Act because of subsection (2)(d)—
(a)subject to paragraphs (b) and (c), the amount of wages attributable to that superannuation contribution will be taken to be the value of the increase of the entitlement or contingent entitlement of the relevant employee;
(b)if that superannuation contribution can be directly attributed to a payment or setting apart of money within the ambit of paragraphs (a), (b) or (c) of subsection (2), the value of the superannuation contribution under paragraph (d) of subsection (2) (and therefore the relevant amount of wages) will only be the amount (if any) by which the value of that contribution exceeds the amount of the payment or setting apart of money (as the case may be);
(c)if that superannuation contribution can be directly attributed to an increase in the capital of the relevant fund or scheme or to the payment of interest, over and above any contribution that the employer is required to make, or would be required to make but for the increase in capital or the payment of interest, the value of the superannuation contribution (to the extent that it exceeds any contribution that the employer is required, or would be required, to make as mentioned above), will be taken to be nil;
(d)if there is a crediting or a debiting of an account, or any other allocation or deduction, and a corresponding debiting or crediting, or deduction or allocation, then liability for payroll tax will only arise with respect to 1 crediting or debiting, or allocation or deduction, so as to avoid double taxation.
In this section—
employee includes any person to whom, by virtue of a paragraph of the definition of wages in section 13(1), an amount paid or payable in the circumstances referred to in that paragraph constitutes wages;
partly funded scheme of superannuation means a scheme of superannuation (including a provident or retirement fund or scheme) under which the employer's liability for superannuation contributions is partly satisfied by a payment within the meaning of paragraphs (a) to (d) of the definition of superannuation contribution;
unfunded scheme of superannuation means a scheme of superannuation (including a provident or retirement fund or scheme) under which no payment within the meaning of paragraphs (a) to (d) of the definition of superannuation contribution is made by the employer in total or partial satisfaction of his, her or its liability for superannuation contributions.
Division 4—Shares and options
18—Inclusion of grant of shares and options as wages
For the purposes of this Act, wages include the grant of a share or an option to an employee by an employer in respect of services performed by the employee if the share or option is an ESS interest (within the meaning of section 83A–10 of the Income Tax Assessment Act 1997 of the Commonwealth) and is granted to the employee under an employee share scheme (within the meaning of that section).
Note—
A grant of a share or an option to an employee by an employer that is not an ESS interest will be taxable as a fringe benefit under Division 2 of this Part.
Any such wages are taken, for the purpose of the imposition of payroll tax, to be paid or payable on the relevant day.
For the purposes of this Division, the relevant day is the day that the employer elects in accordance with this Division to treat as the day on which the wages are paid or payable.
To avoid doubt, the grant of a share or option is valuable consideration for the purposes of section 46.
19—Choice of relevant day
The employer can elect to treat as the relevant day either the date on which the share or option is granted to the employee or the vesting date.
A share or option is granted to a person if—
(a)another person transfers the share or option to that person (other than, in the case of a share, by issuing the share to that person); or
(b)in the case of a share—another person allots the share to that person; or
(c)in the case of an option—another person confers the option on, or otherwise creates the option in, that person; or
(d)the person otherwise acquires a legal interest in the share or option from another person; or
(e)the person acquires a beneficial interest in the share or option from another person.
(2a)To avoid doubt, if an employee acquires a right to be granted a share or an option, or some other material benefit, at the election of the employer, the share or option is not granted until the employer elects to grant the share or option.
The vesting date in respect of a share is one of the following dates (whichever happens first):
(a)the date on which the share vests in the employee (that is, when any conditions applying to the grant of the share have been met and the employee's legal or beneficial interest in the share cannot be rescinded);
(b)the date at the end of the period of 7 years from the date on which the share is granted to the employee.
The vesting date in respect of an option is one of the following dates (whichever happens first):
(a)the date on which the share to which the option relates is granted to the employee;
(b)the date on which the employee exercises a right under the option to have the share the subject of the option transferred to, allotted to or vested in him or her;
(c)the date at the end of the period of 7 years from the date on which the option is granted to the employee.
20—Deemed choice of relevant day in special cases
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 an employer grants a share or an option to an employee and the value of the grant of the share or option is nil or, if the employer were to elect to treat the date of grant as the relevant day, the wages constituted by the grant would not be liable to payroll tax, the employer is taken to have elected to treat the wages constituted by the grant of that share or option as being paid or payable on the date on which the share or option was granted.
21—Effect of rescission, cancellation of share or option
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 includes the value of a grant of a share or option in the taxable wages of the employer for a financial year and the grant is rescinded because the conditions attaching to the grant were not met, the taxable wages of the employer, in the financial year in which the grant is rescinded, are to be reduced by the value of the grant as previously included in the taxable wages of the employer.
(3)Subsection (2) does not apply just because an employee fails to exercise an option or to otherwise exercise his or her rights in respect of a share or option.
22—Grant of share pursuant to exercise of option
The grant of the share by an employer does not constitute wages for the purposes of this Act if the employer is required to grant the share as a consequence of the exercise of an option by a person and—
(a)the grant of the option to the person constitutes wages for the purposes of this Act; or
(b)the option was granted to the person before 1 July 2008.
23—Value of shares and options
If the grant of a share or option constitutes wages under this Division, the amount paid or payable as wages is taken, for the purposes of this Act, to be the value of the share or option (expressed in Australian currency) on the relevant day, less the consideration (if any) paid or given by the employee in respect of the share or option (other than consideration in the form of services performed).
The value of a share or an option is—
(a)the market value; or
(b)the amount determined as provided for by the Commonwealth income tax provisions.
The employer may elect the method by which the value of a share or an option is determined in any return lodged under this Act.
However, the Commissioner may determine the method by which the value of a share or an option is determined if the grant of the share or option is not included as wages in a return lodged by an employer as required by this Act.
In determining the market value of a share or option, anything that would prevent or restrict conversion of the share or option to money is to be disregarded.
The Commonwealth income tax provisions apply with the following modifications, and any other necessary modifications:
(a)the value of an option is to be determined as if it were a right to acquire a beneficial interest in a share;
(b)a reference to the acquisition of a beneficial interest in a share or right is to be read as a reference to the grant of a share or an option.
In this section—
Commonwealth income tax provisions means section 83A–315 of the Income Tax Assessment Act 1997 of the Commonwealth and the regulations made for the purposes of that section.
Note—
See Division 83A of the Income Tax Assessment Regulations 1997 of the Commonwealth for the relevant regulations.
24—Inclusion of shares and options granted to directors as wages
For the purposes of this Act, wages include the grant of a share or an option by a company to a director of the company who is not an employee of the company by way of remuneration for the appointment or services of the director.
For that purpose, the other provisions of this Division apply in respect of any such grant as if a reference to the employer were a reference to the company and a reference to the employee were a reference to the director of the company.
In this section, a reference to a director of the company includes a reference to the following:
(a)a person who, under a contract or other arrangement, is to be appointed as a director of the company;
(b)a former director of the company.
Note—
Section 13 provides that a reference to an employee in this Act includes a reference to any person to whom any amount that is treated as wages under this Act is paid or payable. See also section 11, which deems the wages to be paid or payable for services performed.
However, if wages referred to in this section are fringe benefits, the value of the wages is to be determined in accordance with Division 2 of this Part (and not this Division).
26—Place where wages are payable
The wages constituted by the grant of the share or option are taken to be paid or payable in this jurisdiction if the share is a share in a local company or, in the case of an option, an option to acquire shares in a local company.
In any other case, the wages constituted by the grant of the share or option are taken to be paid or payable outside this jurisdiction.
Note—
The place where wages are paid or payable is sometimes relevant to determining whether the wages are liable to payroll tax under this Act. See section 11.
In this section—
local company means—
(a)a company incorporated or taken to be incorporated under the Corporations Act 2001 of the Commonwealth that is taken to be registered in this jurisdiction for the purposes of that Act; or
(b)any other body corporate that is incorporated under an Act of this jurisdiction.
Division 5—Termination payments
27—Definitions
In this Division—
employment termination payment means—
(a)an employment termination payment within the meaning of section 82—130 of the ITAA; or
(b)a payment that would be an employment termination payment within the meaning of section 82—130 of the ITAA but for the fact that it was received later than 12 months after the termination of a person's employment; or
(c)a transitional termination payment within the meaning of section 82—10 of the Income Tax (Transitional Provisions) Act 1997 of the Commonwealth;
termination payment means—
(a)a payment made in consequence of the retirement from, or termination of, any office or employment of an employee, being—
(i)an unused annual leave payment; or
(ii)an unused long service leave payment; or
(iii)so much of an employment termination payment paid or payable by an employer, whether or not paid to the employee or to any other person or body, that would be included in the assessable income of an employee under Part 2—40 of the ITAA if the whole of the employment termination payment had been paid to the employee; or
(b)an amount paid or payable by a company as a consequence of the termination of the services or office of a director of the company, whether or not paid to the director or to any other person or body, that would be an employment termination payment if that amount had been paid or payable as a consequence of termination of employment; or
(c)an amount paid or payable by a person who is an employer under a relevant contract (within the meaning of section 32) as a consequence of the termination of the supply of the services of an employee under the contract, whether or not paid to the employee or to any other person, if the amount would be an employment termination payment if that amount had been paid or payable as a consequence of termination of employment;
unused annual leave payment has the same meaning as in section 83—10 of the ITAA;
unused long service leave payment has the same meaning as in section 83—75 of the ITAA.
28—Termination payments
For the purposes of this Act, wages include a termination payment.
Division 6—Allowances
29—Motor vehicle allowances
For the purposes of this Act, wages, in respect of a financial year, do not include the exempt component of a motor vehicle allowance paid or payable in respect of that year.
Accordingly, if the total motor vehicle allowance paid or payable to an employee in respect of a financial year does not exceed the exempt component, the motor vehicle allowance is not wages for the purposes of this Act.
If the total motor vehicle allowance paid or payable to an employee in respect of a financial year exceeds the exempt component (if any), only that amount that exceeds the exempt component of the motor vehicle allowance is included as wages for the purposes of this Act.
The exempt component of a motor vehicle allowance paid or payable in respect of a financial year is calculated in accordance with the formula:
where—
E is the exempt component
K is the number of business kilometres travelled during the financial year
R is the exempt rate.
The number of business kilometres travelled during the financial year (K) is to be determined in accordance with the continuous recording method, or the averaging method, whichever method is selected and used by the employer in accordance with Part 4 of Schedule 1.
The Commissioner, by order in writing, may approve the use, by an employer or class of employer, of another method of determining the number of business kilometres travelled during the financial year (including the use of an estimate). If so, the number of business kilometres travelled during the financial year is to be determined in accordance with the method approved by the Commissioner.
For the purposes of this section, the exempt rate for the financial year concerned is—
(a)the rate determined by legislative instrument under section 28-25 of the ITAA for calculating a deduction for car expenses using the "cents per kilometre method" in the financial year immediately preceding the financial year in which the allowance is paid or payable; or
(ab)if there is more than 1 rate under the determination referred to in paragraph (a), the highest of those rates; or
(b)if no rate referred to in paragraph (a) is determined, the rate prescribed by the regulations under this Act.
30—Accommodation allowances
For the purposes of this Act, wages do not include an accommodation allowance paid or payable to an employee in respect of a night's absence from the person's usual place of residence that does not exceed the exempt rate.
If the accommodation allowance paid or payable to an employee in respect of a night's absence from the person's usual place of residence exceeds the exempt rate, wages include that allowance only to the extent that it exceeds the exempt rate.
For the purposes of this section, the exempt rate for the financial year concerned is—
(a)the total reasonable amount for daily travel allowance expenses using the lowest capital city for the lowest salary band for the financial year determined by the Commissioner of Taxation of the Commonwealth; or
(b)if no determination referred to in paragraph (a) is in force, the rate prescribed by the regulations.
Division 7—Contractor provisions
31—Definitions
In this Division—
contract includes an agreement, arrangement or undertaking, whether formal or informal and whether express or implied;
relevant contract has the meaning given in section 32;
re-supply of goods acquired from a person includes—
(a)a supply to the person of goods in an altered form or condition; and
(b)a supply to the person of goods in which the first‑mentioned goods have been incorporated;
services includes results (whether goods or services) of work performed;
supply includes supply by way of sale, exchange, lease, hire or hire‑purchase, and in relation to services includes the providing, granting or conferring of services.
32—What is a relevant contract?
In this Division, a relevant contract in relation to a financial year is a contract under which a person (the designated person) during that financial year, in the course of a business carried on by the designated person—
(a)supplies to another person services for or in relation to the performance of work; or
(b)is supplied with the services of another person for or in relation to the performance of work; or
(c)gives out goods to a person for work to be performed by the person in respect of those goods and for re‑supply of the goods to the designated person or, where the designated person is a member of a group, to another member of that group.
However, a relevant contract does not include a contract of service or a contract under which a person (the designated person) during a financial year in the course of a business carried on by the designated person—
(a)is supplied with services for or in relation to the performance of work that are ancillary to the supply of goods under the contract by the person by whom the services are supplied or to the use of goods which are the property of that person; or
(b)is supplied with services for or in relation to the performance of work where—
(i)those services are of a kind not ordinarily required by the designated person and are performed by a person who ordinarily performs services of that kind to the public generally; or
(ii)those services are of a kind ordinarily required by the designated person for less than 180 days in a financial year; or
(iii)those services are provided for a period that does not exceed 90 days or for periods that, in the aggregate, do not exceed 90 days in that financial year and are not services—
(A)provided by a person by whom similar services are provided to the designated person; or
(B)for or in relation to the performance of work where any person who performs the work also performs similar work for the designated person,
for periods that, in the aggregate, exceed 90 days in that financial year; or
(iv)those services are supplied under a contract to which subparagraphs (i) to (iii) do not apply and the Commissioner is satisfied that those services are performed by a person who ordinarily performs services of that kind to the public generally in that financial year; or
(c)is supplied by a person (the contractor) with services for or in relation to the performance of work under a contract to which paragraphs (a) and (b) do not apply where the work to which the services relate is performed—
(i)by 2 or more persons employed by, or who provide services for, the contractor in the course of a business carried on by the contractor; or
(ii)where the contractor is a partnership of 2 or more natural persons, by 1 or more of the members of the partnership and 1 or more persons employed by, or who provide services for, the contractor in the course of a business carried on by the contractor; or
(iii)where the contractor is a natural person, by the contractor and 1 or more persons employed by, or who provide services for, the contractor in the course of a business carried on by the contractor; or
(d)is supplied with—
(i)services solely for or ancillary to the conveyance of goods by means of a vehicle provided by the person conveying them; or
(ii)services solely for or in relation to the procurement of persons desiring to be insured by the designated person; or
(iii)services for or in relation to the door‑to‑door sale of goods solely for domestic purposes on behalf of the designated person.
(2a)Subsection (2)(a), (2)(b)(i), (2)(b)(iv) or (2)(d) does not apply to a contract under which services not referred to in that subsection are supplied in addition to services referred to in that subsection.
(2b)Subsection (2)(b)(ii) or (iii) does not apply to—
(a)a contract under which services not referred to in that subsection are supplied in addition to services referred to in that subsection; or
(b)a contract under which services referred to in that subsection are provided for a period exceeding a period referred to in that subsection.
(2c)Subsection (2)(c) does not apply to a contract under which work is performed in a manner other than a manner referred to in that subsection, in addition to work performed in a manner referred to in that subsection.
(2d)Subsection (2) does not apply if the Commissioner determines that the contract under which the services are 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, an employment agency contract under which services are supplied by an employment agent, or a service provider is procured by an employment agent, is not a relevant contract.
For the purposes of this section, a relevant contract does not include a contract of service of a class excluded from the operation of this section by the regulations.
33—Persons taken to be employers
For the purposes of this Act, a person—
(a)who during a financial year, under a relevant contract, supplies services to another person; or
(b)who during a financial year, under a relevant contract, is supplied with services for or in relation to the performance of work; or
(c)who during a financial year, under a relevant contract, gives out goods to another person,
is taken to be an employer in respect of that financial year.
If a contract is a relevant contract under both section 32(1)(a) and (b)—
(a)the person to whom, under the contract, the services of another person are supplied for or in relation to the performance of work is taken to be an employer; and
(b)despite subsection (1)(a), the person who under the contract supplies the services is taken not to be an employer.
34—Persons taken to be employees
For the purposes of this Act, a person who during a financial year—
(a)performs work for or in relation to which services are supplied to another person under a relevant contract; or
(b)being a natural person, under a relevant contract, re‑supplies goods to an employer,
is taken to be an employee in respect of that financial year.
35—Amounts under relevant contracts taken to be wages
For the purposes of this Act, amounts paid or payable by an employer during a financial year for or in relation to the performance of work relating to a relevant contract or the re‑supply of goods by an employee under a relevant contract are taken to be wages paid or payable during that financial year.
If an amount referred to in subsection (1) is included in a larger amount paid or payable by an employer under a relevant contract during a financial year, that part of the larger amount which is not attributable to the performance of work relating to the relevant contract or the re‑supply of goods by an employee under the relevant contract is as determined by the Commissioner.
An amount paid or payable for or in relation to the performance of work under a relevant contract is taken to include—
(a)any payment made by a person who is taken to be an employer under a relevant contract in relation to a person who is taken to be an employee under the relevant contract that would be a superannuation contribution if made in relation to a person in the capacity of an employee; and
(b)the value of any share or option (not otherwise included as wages under this Act) provided or liable to be provided by a person who is taken to be an employer under a relevant contract in relation to a person who is taken to be an employee under the relevant contract that would be included as wages under Division 4 if provided to a person in the capacity of an employee.
36—Liability provisions
If, in respect of a payment for or in relation to the performance of work that is taken to be wages under this Division, payroll tax is paid by a person taken under this Division to be an employer—
(a)no other person is liable to payroll tax in respect of that payment; and
(b)if another person is liable to make a payment for or in relation to that work, that person is not liable to payroll tax in respect of that payment unless it or the payment by the first‑mentioned person is made with an intention either directly or indirectly of avoiding or evading the payment of tax whether by the first‑mentioned person or another person.
Division 8—Employment agents
37—Definitions
For the purposes of this Act, an employment agency contract is a contract, whether formal or informal and whether express or implied, under which a person (an employment agent) procures the services of another person (a service provider) for a client of the employment agent.
However, a contract is not an employment agency contract for the purposes of this Act if it is, or results in the creation of, a contract of employment between the service provider and the client.
In this section—
contract includes agreement, arrangement and undertaking.
38—Persons taken to be employers
For the purposes of this Act, the employment agent under an employment agency contract is taken to be an employer.
39—Persons taken to be employees
For the purposes of this Act, the person who performs work for or in relation to which services are supplied to the client under an employment agency contract is taken to be an employee of the employment agent.
40—Amounts taken to be wages
For the purposes of this Act, the following are taken to be wages paid or payable by the employment agent under an employment agency contract:
(a)any amount paid or payable to or in relation to the service provider in respect of the provision of services in connection with the employment agency contract;
(b)the value of any benefit provided for or in relation to the provision of services in connection with the employment agency contract that would be a fringe benefit if provided to a person in the capacity of an employee;
(c)any payment made in relation to the service provider that would be a superannuation contribution if made in relation to a person in the capacity of an employee.
(2)Subsection (1) does not apply to an employment agency contract to the extent that an amount, benefit or payment referred to in that subsection would be exempt from payroll tax under Part 4 (other than under Division 4 or Division 5 of that Part or section 50) or under Part 3 of Schedule 2 (other than clause 17) had the service provider been paid by the client as an employee, if the client has given a declaration to that effect, in the form approved by the Commissioner, to the employment agent.
If it is not reasonably practicable to determine the extent to which an amount, benefit or payment constitutes wages under subsection (1), the Commissioner may accept a return, or make an assessment, in which the amount on which payroll tax is levied is determined on the basis of estimates.
41—Liability provisions
Subject to section 42, if an employment agent under an employment agency contract—
(a)by arrangement procures the services of a service provider for a client of the employment agent; and
(b)pays payroll tax in respect of an amount, benefit or payment that is, under section 40, taken to be wages paid or payable by the employment agent in respect of the provision of those services in connection with that contract,
no other person (including any other person engaged to procure the services of the service provider for the employment agent's client as part of the arrangement) is liable to pay payroll tax in respect of wages paid or payable for the procurement or performance of those services by the service provider for the client.
42—Agreement to reduce or avoid liability to payroll tax
If the effect of an employment agency contract is to reduce or avoid the liability of any party to the contract to the assessment, imposition or payment of payroll tax, the Commissioner may—
(a)disregard the contract; and
(b)determine that any party to the contract is taken to be an employer for the purposes of this Act; and
(c)determine that any payment made in respect of the contract is taken to be wages for the purposes of this Act.
If the Commissioner makes a determination under subsection (1), the Commissioner must serve a notice of the determination on the person taken to be an employer for the purposes of this Act.
The notice must set out the facts on which the Commissioner relies and the reasons for the determination.
This section has effect in relation to agreements, transactions and arrangements made before, on or after the commencement of this section.
Division 9—Other
43—Value of wages paid in kind
The value of wages (except fringe benefits and shares and options) that are paid or payable in kind is the greater of—
(a)the value agreed or attributed to the wages in, or ascertainable for the wages from, arrangements between the employer and the employee, whichever is the greater; and
(b)if the regulations prescribe how the value of wages of that type is to be determined—the value determined in accordance with the regulations.
44—GST excluded from wages
If a person is liable to pay GST on the supply to which wages paid or payable to the person relate, the amount or value of those wages on which payroll tax is payable is the amount or value of the wages paid or payable to the person minus the relevant proportion of the amount of GST payable by the person on the supply to which the wages relate.
(2)Subsection (1) does not apply in respect of the value of wages comprising a fringe benefit.
In this section—
consideration has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;
relevant proportion, in relation to GST payable on a supply to which wages relate, means the proportion that the amount or value of the wages bears to the consideration for the supply to which the wages relate.
45—Wages paid by group employers
A reference in this Act to wages paid or payable by a member of a group includes wages that would be taken to be paid or payable by a member of a group if the member were the employer of the employee to whom the wages were paid.
46—Wages paid by or to third parties
If any of the following amounts of money or other valuable consideration would, if paid or given or to be paid or given directly by an employer to an employee, be or be included as wages paid or payable by the employer to the employee for the purposes of this Act, they are taken to be wages paid or payable by the employer to the employee:
(a)any money or other valuable consideration paid or given, or to be paid or given, to an employee, for the employee's services as an employee of an employer, by a person other than the employer;
(b)any money or other valuable consideration paid or given, or to be paid or given, by an employer, for an employee's services as the employee of the employer, to a person other than the employee;
(c)any money or other valuable consideration paid or given, or to be paid or given, by a person other than an employer, for an employee's services as an employee of the employer, to a person other than the employee.
If any of the following amounts of money or other valuable consideration would, if paid or given or to be paid or given directly by a company to a director of the company, be or be included as wages paid or payable by the company to the director for the purposes of this Act, they are taken to be wages paid or payable by the company to the director:
(a)any money or other valuable consideration paid or given, or to be paid or given, to a director of a company, by way of remuneration for the appointment or services of the director to the company, by a person other than the company;
(b)any money or other valuable consideration paid or given, or to be paid or given, by a company, by way of remuneration for the appointment or services of the director to the company, to a person other than the director;
(c)any money or other valuable consideration paid or given, or to be paid or given, by any person, by way of remuneration for the appointment or services of a director to the company, to a person other than the director.
In this section, director of a company includes—
(a)a person who, under a contract or other arrangement, is to be appointed as a director of the company; and
(b)a former director of the company.
47—Agreement etc to reduce or avoid liability to payroll tax
If any person enters into any agreement, transaction or arrangement, whether in writing or otherwise, under which a natural person performs, for or on behalf of another person, services in respect of which any payment is made or benefit provided to some other person related or connected to the natural person performing the services and the effect of the agreement, transaction or arrangement is to reduce or avoid the liability of any person to the assessment, imposition or payment of payroll tax, the Commissioner may—
(a)disregard the agreement, transaction or arrangement; and
(b)determine that any party to the agreement, transaction or arrangement is taken to be an employer for the purposes of this Act; and
(c)determine that any payment made or benefit provided in respect of the agreement, transaction or arrangement is taken to be wages for the purposes of this Act.
If the Commissioner makes a determination under subsection (1), the Commissioner must serve a notice to that effect on the person taken to be an employer for the purposes of this Act.
The notice must set out the facts on which the Commissioner relies and the reasons for the determination.
This section has effect in relation to agreements, transactions and arrangements made before, on or after the commencement of this section.
Part 4—Exemptions
Division 1—Non-profit organisations
48—Non-profit organisations
Subject to subsection (2), wages are exempt wages if they are paid or payable by any of the following:
(a)a religious institution;
(b)a public benevolent institution (but not including an instrumentality of the State);
(c)a non‑profit organisation having as its sole or dominant purpose a charitable purpose (but not including a school, a college, an educational institution, an educational company or an instrumentality of the State).
The wages must be paid or payable—
(a)for work of a kind ordinarily performed in connection with the religious, public benevolent or charitable purposes of the institution or body; and
(b)to a person engaged exclusively in that kind of work.
For the purposes of subsection (1)(c), an educational company is a company—
(a)in which an educational institution has a controlling interest; and
(b)that provides, promotes or supports the educational services of that institution.
For the purposes of subsection (3), an educational institution has a controlling interest in an educational company if—
(a)members of the board of management of the company who are entitled to exercise a majority in voting power at meetings of the board of management are accustomed or under an obligation, whether formal or informal, to act in accordance with the directions, instructions or wishes of the educational institution; or
(b)the educational institution may (whether directly or indirectly) exercise, control the exercise of, or substantially influence the exercise of, more than 50% of the voting power attached to voting shares, or any class of voting shares, issued by the company; or
(c)the educational institution has power to appoint more than 50% of the members of the board of management of the company.
In this section—
educational institution means an entity that provides education above secondary level.
Division 2—Education and training
49—Schools and educational services and training
Wages are exempt wages as provided for in Division 1 of Part 3 of Schedule 2.
50—Community Development Employment Project
Wages are exempt wages if they are paid or payable to an Aboriginal person who is employed under an employment project.
An employment project is an employment project under the Community Development Employment Project funded by the Department of Employment and Workplace Relations of the Commonwealth or the Torres Strait Regional Authority.
Division 3—Health services providers
51—Health services providers
Subject to subsection (2), wages paid or payable by an employer who provides health services otherwise than for the purpose of profit or gain are exempt wages.
The wages must be paid or payable to a person engaged exclusively in—
(a)the provision of health services; or
(b)work that is incidental to the provision of health services.
For the purposes of this section, health service has the meaning given in Division 2 of Part 3 of Schedule 2.
52—Division not to limit other exemptions
Nothing in this Division limits the application of any other Division of this Part.
For example, if an employer who provides health services is also a non‑profit organisation, the exemption for non‑profit organisations referred to in section 48 may still apply.
Division 4—Maternity and adoption leave
53—Maternity and adoption leave
Wages are exempt wages if they are paid or payable to an employee in respect of—
(a)maternity leave, being leave given to a female employee in connection with her pregnancy or the birth of her child (other than sick leave, recreation leave, annual leave or any similar leave); or
(b)adoption leave, being leave given to an employee in connection with the adoption of a child by him or her (other than sick leave, recreation leave, annual leave or any similar leave).
It is immaterial whether the leave is taken during or after the pregnancy or before or after the adoption.
The exemption is limited to wages paid or payable in respect of a maximum of 14 weeks maternity leave in respect of any 1 pregnancy and 14 weeks adoption leave in respect of any 1 adoption.
In subsection (3)—
(a)a reference to 14 weeks maternity leave or 14 weeks adoption leave includes a reference to an equivalent period of leave at a reduced rate of pay; and
(b)a reference to wages paid or payable in respect of a period of leave is a reference to the total wages that would normally have been paid or payable for that period of leave.
Example—
For a part‑time employee, the exemption may apply to wages paid or payable for maternity leave or adoption leave that extends to 28 weeks at half of the part‑time rate of pay that would normally apply to the employee.
The exemption does not apply to any part of wages paid or payable in respect of maternity or adoption leave that comprises fringe benefits.
54—Administrative requirements for exemption
An employer wishing to claim an exemption under section 53 in respect of maternity leave must obtain and keep a medical certificate in respect of, or statutory declaration by, the employee—
(a)stating that the employee is or was pregnant; or
(b)stating that the employee has given birth and the date of birth.
An employer wishing to claim an exemption under section 53 in respect of adoption leave must obtain and keep a statutory declaration by the employee stating—
(a)that a child has been placed in the custody of the employee pending the making of an adoption order; or
(b)that an adoption order has been made or recognised in favour of the employee.
Note—
Section 53 of the Taxation Administration Act 1996 requires these records to be kept for at least 5 years unless the Commissioner of State Taxation authorises earlier destruction.
Division 5—Volunteer firefighters and emergency service volunteers
55—Volunteer firefighters
Subject to section 57, wages are exempt wages if they are paid or payable to an employee in respect of any period when he or she was engaged as a volunteer member of a SACFS organisation within the meaning of the Fire and Emergency Services Act 2005 in responding to any situation that involved or may have involved an emergency under that Act.
56—Emergency service volunteers
Subject to section 57, wages are exempt wages if they are paid or payable to an employee in respect of any period when he or she was engaged as a volunteer member of an emergency services organisation under the Fire and Emergency Services Act 2005 in responding to any situation that involved or may have involved an emergency under that Act.
57—Limitation of exemption
An exemption under this Division does not apply to wages paid or payable as recreation leave, annual leave, long service leave or sick leave.
Division 6—Local government
58—Councils
Subject to section 59, wages are exempt wages if they are paid or payable by a council.
59—Limitation on local government exemptions
An exemption under this Division does not apply to wages paid or payable for or in connection with—
(a)any of the activities referred to in section 60; or
(b)the construction of any buildings or works, or the installation of plant, machinery or equipment for use in or in connection with any of the activities referred to in section 60.
60—Specified activities
Section 59 applies to the following activities:
(a)the supply of electricity or gas;
(b)water supply;
(c)sewerage;
(d)the conduct of—
(i)abattoirs;
(ii)public markets;
(iii)parking stations;
(iv)cemeteries or crematoria;
(v)hostels;
(vi)public transport;
(vii)an activity prescribed by the regulations.
Division 7—Other government and defence
61—State Governors
Wages paid or payable by the Governor of a State are exempt wages.
62—Defence personnel
Wages are exempt wages if they are paid or payable to an employee in respect of any period when he or she was on leave from employment because of being a member of—
(a)the Defence Force of the Commonwealth; or
(b)the armed forces of any part of the Commonwealth of Nations.
63—War Graves Commission
Wages paid or payable by the Commonwealth War Graves Commission are exempt wages.
Division 8—Foreign government representatives and international agencies
64—Consular and non‑diplomatic representatives
Wages paid or payable to members of his or her official staff by a consular or other representative of any country in Australia (other than a diplomatic representative) are exempt wages.
65—Trade commissioners
Wages paid or payable to members of his or her official staff by a Trade Commissioner representing any other part of the Commonwealth of Nations in Australia are exempt wages.
66—Australian–American Fulbright Commission
Wages paid or payable by the Australian‑American Fulbright Commission are exempt wages.
Division 9—Services outside Australia
66A—Wages paid or payable for or in relation to services performed in other countries
GTW represents the total taxable wages paid or payable by the group concerned during the 2018/19 financial year;
TW represents the total taxable wages paid or payable by the employer concerned (as a member of the group) during the 2018/19 financial year;
TWFP represents the total taxable wages paid or payable by the employer concerned (as a member of the group) during the first period.
9—Payroll of group under threshold
None of the members of a group is liable to pay payroll tax for the first period if the total taxable wages and interstate wages paid or payable by the group during the 2018/19 financial year is not more than the group threshold amount for the purposes of the first period, being the amount calculated in accordance with the following formula:
10—Payroll of group over threshold
If the total taxable wages and interstate wages paid or payable by a group during the 2018/19 financial year is more than the group threshold amount for the purposes of the first period, payroll tax for the first period is payable as provided by subclauses (2) and (3).
The designated group employer for the group is liable to pay as payroll tax for the first period the amount calculated in accordance with the following formula:
Each member of the group (other than that designated group employer) is liable to pay as payroll tax for the first period the amount calculated in accordance with the following formula:
Part 3—Calculation of payroll tax liability—second period of 2018/19 financial year
Division 1—Interpretation
11—Interpretation
In this Part—
EA is $600 000;
FY is 365;
second period means the period commencing 1 January 2019 and ending on 30 June 2019;
TA or threshold amount is $1 500 000.
Division 2—Employers who are not members of a group
12—Application of Division
This Division applies only to an employer who is not a member of a group.
13—Interpretation
In this Division—
C is the number of days in the 2018/19 financial year in respect of which the employer paid or was liable to pay taxable wages or interstate wages (otherwise than as a member of a group);
IW represents the total interstate wages paid or payable by the employer concerned (otherwise than as a member of a group) during the 2018/19 financial year;
TW represents the total taxable wages paid or payable by the employer concerned (otherwise than as a member of a group) during the 2018/19 financial year;
TWSP represents the total taxable wages paid or payable by the employer concerned (otherwise than as a member of a group) during the second period.
14—Payroll of employer under threshold
An employer is not liable to pay payroll tax for the second period if the total taxable wages and interstate wages paid or payable by the employer (otherwise than as a member of a group) during the 2018/19 financial year is not more than the employer's threshold amount for the purposes of the second period, being the amount calculated in accordance with the following formula:
15—Payroll of employer over threshold
If the total taxable wages and interstate wages paid or payable by an employer (otherwise than as a member of a group) during the 2018/19 financial year is more than the employer's threshold amount for the purposes of the second period, the employer is liable to pay as payroll tax for the second period the amount calculated in accordance with the following formula:
In this clause—
R is to be determined as follows:
(a)if the employer's total annualised relevant wages for the 2018/19 financial year is more than $1 500 000 and not more than $1 700 000, R is calculated in accordance with the following formula:
(b)if the employer's total annualised relevant wages for the 2018/19 financial year is more than $1 700 000, R is 4.95%.
For the purposes of this clause, an employer's total annualised relevant wages or TARW in respect of the 2018/19 financial year is calculated in accordance with the following formula:
Division 3—Groups with a designated employer
16—Application of Division
This Division applies only to an employer who is a member of a group for which there is a designated group employer.
17—Interpretation
In this Division—
C is the number of days in the 2018/19 financial year in respect of which at least 1 member of the group paid or was liable to pay (as a member of the group) taxable wages or interstate wages;
GIW represents the total interstate wages paid or payable by the group concerned during the 2018/19 financial year;
GTW represents the total taxable wages paid or payable by the group concerned during the 2018/19 financial year;
TW represents the total taxable wages paid or payable by the employer concerned (as a member of the group) during the 2018/19 financial year;
TWSP represents the total taxable wages paid or payable by the employer concerned (as a member of the group) during the second period.
18—Payroll of group under threshold
None of the members of a group is liable to pay payroll tax for the second period if the total taxable wages and interstate wages paid or payable by the group during the 2018/19 financial year is not more than the group threshold amount for the purposes of the second period, being the amount calculated in accordance with the following formula:
19—Payroll of group over threshold
If the total taxable wages and interstate wages paid or payable by a group during the 2018/19 financial year is more than the group threshold amount for the purposes of the second period, payroll tax for the second period is payable as provided by subclauses (2) and (3).
The designated group employer for the group is liable to pay as payroll tax for the second period the amount calculated in accordance with the following formula:
Each member of the group (other than that designated group employer) is liable to pay as payroll tax for the second period the amount calculated in accordance with the following formula:
In this clause—
R is to be determined as follows:
(a)if the group's total annualised relevant wages for the 2018/19 financial year is more than $1 500 000 and not more than $1 700 000, R is calculated in accordance with the following formula:
(b)if the group's total annualised relevant wages for the 2018/19 financial year is more than $1 700 000, R is 4.95%.
For the purposes of this clause, a group's total annualised relevant wages or TARW in respect of the 2018/19 financial year is calculated in accordance with the following formula:
Schedule 2—South Australia specific provisions
Part 1—Introduction
1—Introduction to Schedule
This Schedule sets out provisions that apply only in this jurisdiction.
2—Interpretation
In this Schedule—
prescribed amount means $50 000.
Part 2—Calculation of monthly payroll tax
Division 2—Employers who are not members of a group
4—Application of Division
This Division applies only to an employer who is not a member of a group.
5—Amount of payroll tax to be paid each month
The amount of payroll tax payable by an employer on taxable wages paid or payable by the employer in a month is the amount of dollars calculated in accordance with the following formula:
where—
D is the deductible amount referred to in clause 6
R—see subclause (1a)
TW represents the total taxable wages paid or payable by the employer (otherwise than as a member of a group) during the month.
(1a)In this clause—
R is to be determined as follows:
(a)for the period commencing on 1 July 2018 and ending on 31 December 2018, R is 4.95%;
(b)on and after 1 January 2019, R is to be determined as follows:
(i)if the employer's total annualised relevant wages for the financial year in which the month occurs is more than $1 500 000 and not more than $1 700 000—R is calculated in accordance with the following formula:
(ii)if the employer's total annualised relevant wages for the financial year in which the month occurs is more than $1 700 000—R is 4.95%.
(1b)For the purposes of this clause, an employer's total annualised relevant wages or TARW in respect of a financial year is calculated in accordance with the following formula:
where—
C is the number of days in the relevant financial year in respect of which the employer paid or was liable to pay taxable wages or interstate wages (otherwise than as a member of a group)
FY is the number of days in the relevant financial year
IW represents the estimated interstate wages in the relevant financial year
TW represents the estimated taxable wages in the relevant financial year.
If D is equal to or more than TW in respect of a month, the employer is not required to pay payroll tax in respect of that month.
6—Deductible amount from taxable wages
The deductible amount for an employer who pays or is liable to pay taxable wages (including interstate wages) in a month is—
(a)if notice has been given under subclause (2) and no determination under subclause (5) is in force—the amount specified in the most recent notice given under subclause (2); or
(b)if a determination is in force under subclause (5)—the amount specified in the determination.
From time to time, the employer may give a notice to the Commissioner, containing the information required by the Commissioner, of an amount, calculated in accordance with subclause (3), that the employer claims to be the employer's deductible amount for that month and subsequent months.
The amount is to be calculated in accordance with the following formula:
where—
C is the number of days in the relevant financial year in respect of which the employer paid or was liable to pay taxable wages or interstate wages (otherwise than as a member of a group)
D is the deductible amount per month
FY is the number of days in the financial year
I represents the estimated interstate wages in the financial year in which D will be applied
T represents the estimated taxable wages in the financial year in which D will be applied.
The deductible amount claimed cannot be more than the prescribed amount.
At any time, the Commissioner may, by notice in writing to the employer, determine an amount, not more than the prescribed amount, as the deductible amount for the employer for 1 or more months specified in the determination.
A determination under subclause (5) may be made on application by the employer or on the Commissioner's own motion.
At any time, the Commissioner, by notice in writing to the employer, may revoke a determination made under subclause (5).
Division 3—Groups with a designated group employer
7—Application of Division
This Division applies only to an employer who is a member of a group for which there is a designated group employer.
8—Amount of payroll tax to be paid each month
If an approval is in force under section 87(4) for the designated group employer to lodge a joint return—
(a)the amount of payroll tax payable by the designated group employer on taxable wages paid or payable in a month by the employers covered by the return is the amount of dollars calculated in accordance with the following formula:
where—
D is the deductible amount referred to in clause 9
JTW represents the total taxable wages paid or payable during the month by the employers covered by the return (as members of a group)
R—see subclause (2a);
(b)the amount of payroll tax payable by each employer who is a member of the group but is not covered by the return on taxable wages paid or payable by the employer in a month is the amount of dollars calculated in accordance with the following formula:
where—
R—see subclause (2a)
TW represents the total taxable wages paid or payable by the employer concerned (as a member of the group) during the relevant month.
If an approval under section 87(4) is not in force for the designated group employer—
(a)the amount of payroll tax payable by the designated group employer on taxable wages paid or payable by the designated group employer in a month is the amount of dollars calculated in accordance with the following formula:
where—
D is the deductible amount referred to in clause 9 (as the case requires)
R—see subclause (2a)
TW represents the total taxable wages paid or payable by the designated group employer (as a member of a group) during the month;
(b)the amount of payroll tax payable by each employer who is a member of the group on taxable wages paid or payable by the employer in a month is the amount of dollars calculated in accordance with the following formula:
where—
R—see subclause (2a)
TW represents the total taxable wages paid or payable by the employer concerned (as a member of the group) during the relevant month.
(2a)In this clause—
R is to be determined as follows:
(a)for the period commencing on 1 July 2018 and ending on 31 December 2018, R is 4.95%;
(b)on and after 1 January 2019, R is to be determined as follows:
(i)if the group's total annualised relevant wages for the financial year in which the month occurs is more than $1 500 000 and not more than $1 700 000—R is calculated in accordance with the following formula:
(ii)if the group's total annualised relevant wages for the financial year in which the month occurs is more than $1 700 000—R is 4.95%.
(2b)For the purposes of this clause, a group's total annualised relevant wages or TARW in respect of a financial year is calculated in accordance with the following formula:
where—
C is the number of days in the relevant financial year in respect of which any member of the group paid or was liable to pay taxable wages or interstate wages
FY is the number of days in the relevant financial year
IW represents the estimated interstate wages in the relevant financial year
TW represents the estimated taxable wages in the relevant financial year.
For the purposes of subclauses (1)(a) and (2)(a), if D is equal to or more than JTW or TW in respect of a month (as the case requires), the designated group employer is not required to pay payroll tax in respect of that month.
9—Deductible amount for groups
The deductible amount for a group in which 1 or more members pay or are liable to pay taxable wages (including interstate wages) in a month is—
(a)if notice has been given under subclause (2) and no determination under subclause (5) is in force—the amount specified in the most recent notice given under subclause (2); or
(b)if a determination is in force under subclause (5)—the amount specified in the determination.
From time to time, the designated group employer may give a notice to the Commissioner, containing the information required by the Commissioner, of an amount, calculated in accordance with subclause (3), that the employer claims to be the group's deductible amount for that month and subsequent months.
The amount is to be calculated in accordance with the following formula:
where—
C is the number of days in the relevant financial year in respect of which any member of the group paid or was liable to pay taxable wages or interstate wages
D is the deductible amount per month
FY is the number of days in the financial year
I represents the estimated interstate wages in the financial year in which D will be applied
T represents the estimated taxable wages in the financial year in which D will be applied.
The deductible amount claimed cannot be more than the prescribed amount.
At any time, the Commissioner may, by notice in writing to the designated group employer, determine an amount, not more than the prescribed amount, as the deductible amount for the group for 1 or more months specified in the determination.
A determination under subclause (5) may be made on application by the designated group employer or on the Commissioner's own motion.
At any time, the Commissioner, by notice in writing to the designated group employer, may revoke a determination made under subclause (5).
Part 3—Exemptions
Division 1—Education and training
10—Education and training
Wages paid or payable by a school or college that—
(a)is carried on by a body corporate, society or association otherwise than for the purpose of profit or gain to the individual members of the body corporate, society or association and is not carried on by or on behalf of the State; and
(b)provides education at or below, but not above, the secondary level,
being wages paid or payable to a person during a period in respect of which the school or college satisfies the Commissioner that the person is engaged exclusively in work of the school or college of a kind ordinarily performed in connection with the conduct of schools or colleges providing education of that kind are exempt wages.
Division 2—Health services providers
11—What is a health services provider?
For the purposes of Division 3 of Part 4 of this Act, health service means—
(a)a service designed to promote health; or
(b)a therapeutic or other service designed to cure, alleviate, or afford protection against, any mental or physical illness, abnormality or disability; or
(c)a paramedical or ambulance service; or
(d)the care of, or assistance to, sick or disabled persons at their place of residence; or
(e)a prescribed service.
Division 3—Other exemptions
12—Hospitals
Wages paid or payable by a public hospital to a person during a period in respect of which the hospital satisfies the Commissioner that the person is engaged exclusively in work of the hospital of a kind ordinarily performed in connection with the conduct of public hospitals are exempt wages.
Wages paid or payable by a hospital that is carried on by a society or association otherwise than for the purpose of profit or gain to the individual members of the society or association, being wages paid or payable to a person during a period in respect of which the hospital satisfies the Commissioner that the person is engaged exclusively in work of the hospital of a kind ordinarily performed in connection with the conduct of hospitals are exempt wages.
13—Family planning
Wages paid or payable by the Sexual Health Information Networking and Education SA Incorporated are exempt wages.
14—Kindergartens
Wages paid or payable by an employer who conducts a kindergarten otherwise than for the purpose of profit or gain, being wages paid or payable to an employee during a period in respect of which the employer satisfies the Commissioner that the employee is engaged exclusively in work of the kindergarten of a kind ordinarily performed in connection with the conduct of a kindergarten are exempt wages.
15—Child care
Wages paid or payable by a child care centre that is an eligible organisation within the meaning of the Child Care Act 1972 of the Commonwealth, being wages paid or payable to a person during a period in respect of which the child care centre satisfies the Commissioner that the person is engaged exclusively in work of the centre of a kind ordinarily performed in connection with the conduct of child care centres are exempt wages.
16—Universities
Wages paid or payable by a University College affiliated with the University of Adelaide or the Flinders University of South Australia or Adelaide University are exempt wages.
17—Film production
Wages paid or payable by a motion picture production company, being wages paid or payable to a person who is involved in the production of a feature film in respect of which the motion picture production company satisfies the Treasurer—
(a)that the film will be produced wholly or substantially within the State; and
(b)that the production of the film will involve or result in the employment of South Australian residents; and
(c)that economic benefits will accrue to the State of South Australia on account of the production of the film,
are exempt wages.
17A—JobKeeper Payment
Subject to subclause (2), wages paid or payable by an employer to an employee that are subsidised by the JobKeeper payment are exempt wages.
The exemption under subclause (1) does not apply to any part of wages paid or payable to an employee that are not subsidised by the JobKeeper payment.
This clause expires on the day on which the JobKeeper payment ceases.
The Treasurer must, as soon as reasonably practicable after becoming aware of the cessation of the JobKeeper payment, publish a notice in the Gazette specifying the date on which the JobKeeper payment ceased (and that date will be taken to be the day on which the JobKeeper payment ceased for the purposes of subclause (3)).
In this clause—
JobKeeper payment means the fortnightly wage subsidy announced by the Prime Minister on 30 March 2020 due to the COVID-19 pandemic to employers for the purposes of employers continuing to pay their employees.
Part 4—Returns and refunds
18—Further returns
The Commissioner may, by notice in writing, call upon any employer or person to lodge, within the time specified in the notice, a return or further or fuller return as the Commissioner requires, whether on the person's own behalf or as an agent or trustee.
19—Notification of change in circumstances
An employer must give the Commissioner written notice within 14 days—
(a)after any change in the employer's—
(i)name; or
(ii)trading name; or
(iii)location of head office; or
(iv)postal address; or
(v)members, if the employer is a partnership; or
(b)after the employer ceases to—
(i)pay wages as referred to in section 86(1)(a); or
(ii)be a member of a group referred to in section 86(1)(b); or
(c)after the employer becomes a member of a group referred to in section 86(1)(b).
Maximum penalty: $2 000.
20—Time limit for refund applications
An application for a refund due under section 83 must be made before the end of the financial year next following the financial year in respect of which the refund is due.
Part 5—General
21—Disregarding cents
If, for the purposes of this Act, it is necessary—
(a)to calculate the proportion that 1 amount bears to another amount; or
(b)to calculate an amount in accordance with a formula,
and, but for this clause, 1 or more of those amounts or an amount included in the formula would be amounts of dollars and cents—the cents are to be disregarded.
Schedule 3—Transitional provisions
Part 2—Transitional provisions
2—Interpretation
In this Schedule—
repealed Act means the Pay-roll Tax Act 1971.
3—Savings and transitional provisions
The regulations may contain provisions of a savings and transitional nature consequent on the enactment of this Act or any Act amending this Act.
A provision of a regulation made under subclause (1) may, if the regulation so provides, take effect from the commencement of this Act or from a later day.
To the extent to which a provision takes effect under subclause (2) from a day earlier than the day of the regulation's publication in the Gazette, the provision does not operate to the disadvantage of a person by—
(a)decreasing the person's rights; or
(b)imposing liabilities on the person.
The Acts Interpretation Act 1915 will, except to the extent of any inconsistency with the provisions of this Schedule or regulations made under this Schedule, apply to any amendment or repeal effected by this Act or any Act amending this Act.
4—Continuation of repealed Act and regulations
If a provision of the repealed Act continues to apply by force of this Schedule, the following provisions also continue to apply in relation to that provision:
(a)any other provision of the repealed Act necessary to give effect to that continued provision;
(b)any regulation made under the repealed Act for the purposes of that continued provision.
5—Application of this Act and repealed Act
This Act applies to payroll tax on taxable wages that are paid or payable on or after 1 July 2009.
Despite its repeal, the repealed Act continues to apply to payroll tax on taxable wages (within the meaning of the repealed Act) paid or payable before 1 July 2009.
The Taxation Administration Act 1996, as in force immediately before 1 July 2009, continue to apply on and after that day in respect of any matter to which the repealed Act continues to apply on and after that day.
6—Superannuation contributions not readily related to particular employees
For the purposes of an assessment of payroll tax, the Commissioner may determine—
(a)whether, and the extent to which, any monetary or non‑monetary contribution paid or payable by an employer to a superannuation, provident or retirement fund or scheme that is not identified by the employer as paid or payable in respect of a particular employee (and whether or not purporting to be so paid or payable on any actuarial basis) is to be regarded as a superannuation contribution paid or payable in respect of a particular employee;
(b)the portion of any monetary or non‑monetary contribution paid by an employer as a superannuation contribution to a wholly or partly unfunded fund or scheme, being money paid in respect of an employee (or that is to be regarded under paragraph (a) to have been so paid) who performed services to the employer on or after, as well as before, 1 July 1996, that is to be regarded as having been paid in respect of services performed before that date.
7—Registration of employers
An employer who was registered under section 14 of the repealed Act immediately before 1 July 2009 is taken, on and after that day, to be registered under section 86 of this Act.
8—Designated group employers
A member of a group who was the nominated or appointed member for the group under section 18J of the repealed Act immediately before 1 July 2009 is taken, on and after that day, to be the designated group employer for the group as if the member had been designated under section 80 of this Act.
9—References
Unless the contrary intention appears, a reference in any other Act, law, instrument or other form of document to pay‑roll tax under the repealed Act will be taken to include a reference to payroll tax under this Act.
Part 3—Transitional provisions—Employee shares and options
10—Assessment and payment of payroll tax in relation to employee shares and options
Anything done or omitted to be done by an employer in connection with the assessment and payment of payroll tax, in respect of a month occurring after June 2009 and before July 2013, that would have been validly done or omitted to be done had the amendments made to this Act by the Payroll Tax (Miscellaneous) Amendment Act 2012 been in force, is taken to have been validly done or omitted.
Note—
This provision validates a decision by an employer to treat the grant of a share or an option to an employee that is not an ESS interest as a fringe benefit under Division 2 of Part 3 of this Act and to determine the value of those fringe benefits in accordance with those provisions, rather than by reference to Division 4 of Part 3 of this Act.
11—Determination of vesting date and value of employee shares and options
(1)Division 4 of Part 3 of this Act continues to apply in respect of a share or an option granted before 1 July 2013 that constituted wages under old section 18, whether or not the grant of the share or option would constitute wages under new section 18, if the relevant day in relation to the grant of the share or option is not a day occurring before 1 July 2013.
Note—
For example, a share granted before 1 July 2013 that is not an ESS interest continues to be treated as wages under Division 4 of Part 3 of this Act if the vesting date for the share did not occur before 1 July 2013 and the employer did not elect to treat the date of the grant as the relevant day.
The assessment amendments apply in respect of any such share or option.
Accordingly, the vesting date and the value of the share or option are to be determined in accordance with the assessment amendments.
This clause does not apply in respect of a share or an option granted before 1 July 2013 if the liability for payroll tax in respect of the grant is determined in accordance with Division 2 of Part 3 (as permitted by clause 1).
In this clause—
assessment amendments means the amendments made by sections 6 and 7 of the Payroll Tax (Miscellaneous) Amendment Act 2012;
new section 18 means section 18 as amended by the Payroll Tax (Miscellaneous) Amendment Act 2012;
old section 18 means section 18 as in force immediately before 1 July 2013;
relevant day—see section 18(3).
Legislative history
Notes
•Amendments of this version that are uncommenced are not incorporated into the text.
•Please note—References in the legislation to other legislation or instruments or to titles of bodies or offices are not automatically updated as part of the program for the revision and publication of legislation and therefore may be obsolete.
•Earlier versions of this Act (historical versions) are listed at the end of the legislative history.
•For further information relating to the Act and subordinate legislation made under the Act see the Index of South Australian Statutes or repealed by principal Act
The Payroll Tax Act 2009 repealed the following:
Pay-roll Tax Act 1971
Principal Act and amendments
New entries appear in bold.
Year No Title Assent Commencement 2009 22 Payroll Tax Act 2009 4.6.2009 1.7.2009: s 2 2010 4 Payroll Tax (Nexus) Amendment Act 2010 1.7.2010 Pt 2 (ss 4—12) & Sch 1 (cll 2 & 3)—1.7.2009: s 2 2010 22 Statutes Amendment (Budget 2010) Act 2010 18.11.2010 Pt 8 (ss 43 & 44)—1.7.2010: s 2(4) 2012 50 Payroll Tax (Miscellaneous) Amendment Act 2012 6.12.2012 1.7.2013: s 2 2012 54 Statutes Amendment and Repeal (Budget 2012) Act 2012 6.12.2012 Pt 8 (s 30)—1.7.2012: s 2(2) 2018 21 Payroll Tax (Exemption for Small Business) Amendment Act 2018 25.10.2018 25.10.2018; Pt 2 (except s 9)—1.7.2018; s 9—1.7.2019: s 2 2018 35 Statutes Amendment and Repeal (Budget Measures) Act 2018 22.11.2018 Pt 12 (s 118)—1.7.2016: s 2(5); ss 119 & 120—1.7.2018: s 2(6) 2019 25 Statutes Amendment and Repeal (Simplify) Act 2019 3.10.2019 Pt 33 (s 74)—3.10.2019: s 2(1) 2020 7 COVID-19 Emergency Response Act 2020 9.4.2020 Sch 3 (cl 3)—9.4.2020: s 2(1) 2023 32 Adelaide University Act 2023 23.11.2023 Sch 1 (cl 4(2))—8.3.2024 (Gazette 14.12.2023 p4133); cl 4(1)—uncommenced Provisions amended
New entries appear in bold.
Entries that relate to provisions that have been deleted appear in italics.
Provision How varied Commencement Long title amended under Legislation Revision and Publication Act 2002 1.7.2010 Pt 1 s 2 omitted under Legislation Revision and Publication Act 2002 1.7.2009 s 3 ABN inserted by 4/2010 s 4(1) 1.7.2009 Australian jurisdiction inserted by 4/2010 s 4(2) 1.7.2009 2018/19 financial year inserted by 21/2018 s 4 1.7.2018 instrument inserted by 4/2010 s 4(3) 1.7.2009 registered business address inserted by 4/2010 s 4(4) 1.7.2009 share amended by 50/2012 s 4 1.7.2013 Pt 2 s 8 s 8(1) s 8 redesignated as s 8(1) by 21/2018 s 5 1.7.2018 s 8(2) inserted by 21/2018 s 5 1.7.2018 ss 10 and 11 substituted by 4/2010 s 5 1.7.2009 ss 11A—11C inserted by 4/2010 s 5 1.7.2009 Pt 3 s 13 s 13(2a) inserted by 4/2010 s 6 1.7.2009 s 18 s 18(1) substituted by 50/2012 s 5 1.7.2013 s 19 s 19(2) substituted by 50/2012 s 6(1) 1.7.2013 s 19(2a) inserted by 50/2012 s 6(1) 1.7.2013 s 19(3) and (4) substituted by 50/2012 s 6(2) 1.7.2013 s 23 s 23(1) amended by 50/2012 s 7(1) 1.7.2013 s 23(2)—(5) substituted by 50/2012 s 7(2) 1.7.2013 s 23(6) and (7) inserted by 50/2012 s 7(2) 1.7.2013 s 24 s 24(1) substituted by 50/2012 s 8(1) 1.7.2013 s 24(3) amended by 4/2010 s 7(1) 1.7.2009 s 24(4) deleted by 4/2010 s 7(2) 1.7.2009 inserted by 50/2012 s 8(2) 1.7.2013 s 25 deleted by 4/2010 s 8 1.7.2009 s 26 s 26(2) amended by 4/2010 s 9 1.7.2009 s 29 s 29(7) amended by 35/2018 s 118(1), (2) 1.7.2016 s 32 s 32(2) amended by 35/2018 s 119(1)—(3) 1.7.2018 s 32(2a)—(2d) inserted by 35/2018 s 119(4) 1.7.2018 s 40 s 40(2) amended by 4/2010 s 10 1.7.2009 Pt 4 Pt 4 Div 4 s 53 s 53(4) substituted by 50/2012 s 9 1.7.2013 Pt 4 Div 9 inserted by 4/2010 s 11 1.7.2009 Pt 5 s 80 s 80(3) substituted by 21/2018 s 6 1.7.2018 Pt 6 s 82 s 82(1) substituted by 21/2018 s 7 1.7.2018 Pt 7 s 86 s 86(1) amended by 21/2018 s 8(1) 1.7.2018 s 86(6) inserted by 21/2018 s 8(2) 1.7.2018 Pt 8 s 95 s 95(2) substituted by 25/2019 s 74 3.10.2019 Sch 1 cl 1 EA inserted by 21/2018 s 9(1) 1.7.2019 R deleted by 21/2018 s 9(2) 1.7.2019 TA or threshold amount amended by 21/2018 s 9(3) 1.7.2019 cl 5 cl 5(1) cl 5 amended and redesignated as cl 5(1) by 21/2018 s 9(4), (5) 1.7.2019 cl 5(2) and (3) inserted by 21/2018 s 9(5) 1.7.2019 cl 9 cl 9(2) amended by 21/2018 s 9(6) 1.7.2019 cl 9(4) and (5) inserted by 21/2018 s 9(7) 1.7.2019 Sch 1A inserted by 21/2018 s 10 1.7.2018 Sch 2 Pt 2 Pt 2 Div 1 deleted by 21/2018 s 11(1) 1.7.2018 Pt 2 Div 2 cl 5 cl 5(1) R substituted by 21/2018 s 11(2) 1.7.2018 cl 5(1a) and (1b) inserted by 21/2018 s 11(3) 1.7.2018 cl 6 cl 6(3) amended by 21/2018 s 11(4) 1.7.2018 TA or threshold amount deleted by 21/2018 s 11(5) 1.7.2018 Pt 2 Div 3 cl 8 cl 8(1) R substituted by 21/2018 s 11(6), (7) 1.7.2018 cl 8(2) R substituted by 21/2018 s 11(8), (9) 1.7.2018 cl 8(2a) and (2b) inserted by 21/2018 s 11(10) 1.7.2018 cl 9 cl 9(3) amended by 21/2018 s 11(11) 1.7.2018 TA or threshold amount deleted by 21/2018 s 11(12) 1.7.2018 cl 10A inserted by 22/2010 s 43 1.7.2010 deleted by 54/2012 s 30 1.7.2012 Pt 3 Div 3 cl 16 amended by 32/2023 Sch 1 cl 4(1) uncommenced—not incorporated cl 16 amended by 32/2023 Sch 1 cl 4(2) 8.3.2024 cl 17A inserted by 7/2020 Sch 3 cl 3 9.4.2020 Sch 3 Pt 1 omitted under Legislation Revision and Publication Act 2002 1.7.2009 Pt 2 cl 3 cl 3(1) amended by 4/2010 s 12(1) 1.7.2009 cl 3(4) amended by 4/2010 s 12(2) 1.7.2009 Pt 3 inserted by 50/2012 s 10 1.7.2013 Transitional etc provisions associated with Act or amendments
Payroll Tax (Nexus) Amendment Act 2010, Sch 1
2—Transitional provisions—taxable wages
In this clause—
principal Act means the Payroll Tax Act 2009.
For the purposes of this clause, an "expired month" is a month occurring after June 2009 that ended before the date of assent of this Act.
The amendments made to the principal Act by this Act apply in respect of taxable wages that are paid or payable on or after 1 July 2009.
The amendments made to the principal Act by this Act are to be applied for the purpose of determining the correct amount of payroll tax (within the meaning of section 82) payable by an employer in respect of the financial year commencing on 1 July 2009 (including in respect of expired months).
However, section 9 of the principal Act continues to apply in respect of an expired month as if the amendments made to the principal Act by this Act had not been made.
3—Transitional provisions—taxation administration
The Pay-roll Tax Act 1971 will continue to be a taxation law for the purposes of the Taxation Administration Act 1996 despite its repeal and despite the enactment of clause 1 of this Schedule.
Statutes Amendment (Budget 2010) Act 2010
44—Transitional provision
A regulation made for the purposes of section 10A of Schedule 2 of the Payroll Tax Act 2009, as enacted by this Act, may, if the regulation so provides, take effect from 1 July 2010 or from a later day.
Statutes Amendment and Repeal (Budget Measures) Act 2018, Pt 12
120—Transitional provisions
Section 32 of the principal Act, as amended by section 119 of this Act, applies in respect of work performed on or after 1 July 2018 irrespective of when amounts are paid or become payable in respect of the work.
Section 32 of the principal Act, as in force immediately before the commencement of section 119 of this Act, continues to apply in respect of work performed before 1 July 2018 irrespective of when amounts are paid or become payable in respect of the work.
In this section—
principal Act means the Payroll Tax Act 2009.
Historical versions
1.7.2009 1.7.2010 1.7.2012 1.7.2013 1.7.2016 (electronic only) 1.7.2018 1.7.2019 3.10.2019 9.4.2020
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