Payroll Tax Act 2007

This Act is the Payroll Tax Act 2007.

This Act commences or is taken to have commenced on 1 July 2007.

In this Act—

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 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

a person who, by an order of the Chief 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 the State has the same meaning as in Part 10 of the Interpretation Act 1987.

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.

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—

the Crown in any of its capacities, and

a person taken to be an employer by or under this Act, and

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.

exercise a function includes perform a duty.

FBTA Act means the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth.

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 tax-exempt body entertainment fringe benefit within the meaning of that Act, or

anything that is prescribed by the regulations under this Act not to be a fringe benefit for the purposes of this definition.

function includes a power, authority or duty.

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 section 5 of the Intergovernmental Agreement Implementation (GST) Act 2000 by a person that is a State 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.

service provider, in relation to an employment agency contract—see section 37.

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 New South Wales and the coastal waters of the State.

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.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

Notes included in this Act do not form part of this Act.

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.

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.

Payroll tax is imposed on all taxable wages.

The employer by whom taxable wages are paid or payable is liable to pay payroll tax on the wages.

The amount of payroll tax payable by an employer is to be ascertained in accordance with Schedules 1 and 2.

A person who is liable to pay payroll tax on taxable wages must pay the tax—

within 7 days after the end of the month in which those wages were paid or payable, other than the month of June, and

within 28 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 Chief 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 Chief Commissioner by notice served on the person.

For the purposes of this Act, taxable wages are wages that are taxable in this jurisdiction.

However, exempt wages are not taxable wages.

For the purposes of this Act, wages are taxable in this jurisdiction if—

the wages are paid or payable by an employer for or in relation to services performed by an employee wholly in this jurisdiction, or

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 one or more Australian jurisdictions and partly outside all Australian jurisdictions, and—

the employee is based in this jurisdiction, or

the employer is based in this jurisdiction (in a case where the employee is not based in an Australian jurisdiction), or

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

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

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 one 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—

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

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—

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

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 one 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.

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 one 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.