Pay-roll Tax Act 1971

Pay-roll Tax Act 1971

An Act to impose a tax upon employers in respect of certain wages, to provide for the assessment of that tax, and for purposes connected therewith

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART I - Preliminary

1.   Short title and commencement

(1)  This Act may be cited as the Pay-roll Tax Act 1971 .

(2)  Subject to subsection (3) , this Act shall commence on a day to be fixed by proclamation.

(3)  The day fixed for the commencement of this Act may be a day before or after the making of the proclamation under subsection (2) but shall not be earlier than 1st September 1971.

2.   Interpretation

(1)  [Section 2 Subsection (1) amended by No. 65 of 1975, s. 2 ][Section 2 Subsection (1) amended by No. 7 of 1976, s. 2 ][Section 2 Subsection (1) amended by No. 79 of 1984, s. 4 ][Section 2 Subsection (1) amended by No. 50 of 1988, s. 4 ][Section 2 Subsection (1) amended by No. 21 of 1990, s. 4 ][Section 2 Subsection (1) amended by No. 30 of 1995, s. 3 and Sched. 1 ]In this Act, unless the contrary intention appears –

agent includes a person who in this State, for or on behalf of another person outside this State, holds or has the management or control of the business of that other person and every 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;

Australian wages means the total wages that are paid or payable by an employer, and by any other member of a group of which that employer is a member, and that –

(a) are wages that are paid or payable in Australia; or

(b) are wages that are paid or payable outside Australia in respect of services performed or rendered mainly in Australia;

[Section 2 Subsection (1) amended by No. 42 of 1997, s. 4, Applied:01 Jul 1997] average new entrant contribution rate means the rate determined from time to time by the Commissioner, based on actuarial advice, as the employer contribution rate applicable to a new entrant to the superannuation scheme established under Part 4 of the Retirement Benefits Regulations 1994 ;

[Section 2 Subsection (1) amended by No. 76 of 1997, s. 5, Applied:01 Jul 1998]

[Section 2 Subsection (1) amended by No. 76 of 1997, s. 5, Applied:01 Jul 1998] Commissioner means the Commissioner of State Revenue as defined in the Taxation Administration Act 1997 ;

Commonwealth Act means the Pay-roll Tax Assessment Act 1941-1969 , of the Commonwealth;

company includes all bodies and associations (corporate and unincorporate) and partnerships;

contract includes an agreement, arrangement or undertaking, whether formal or informal and whether express or implied;

[Section 2 Subsection (1) amended by No. 69 of 2000, s. 4, Applied:14 Nov 2000]

[Section 2 Subsection (1) amended by No. 69 of 2000, s. 4, Applied:14 Nov 2000] [Section 2 Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] corporation means a corporation as defined in the Corporations Act;

corresponding law, in relation to another State, means a law in force in that State relating to the imposition upon employers of a tax on wages paid or payable by them and the assessment and collection of that tax, but does not include the Commonwealth Act ;

employee includes a person who –

(a) performs work for or in relation to which services are supplied to another person under a relevant contract; or

(b) is a natural person who re-supplies goods to an employer under a relevant contract;

employer means a person who pays or is liable to pay any wages and includes a person who –

(a) is supplied with services for or in relation to the performance of work under a relevant contract; or

(b) gives out goods to another person under a relevant contract;

financial year means each year commencing on 1st July;

fringe benefit has the meaning given to that expression by the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth but does not include –

(a) a tax-exempt body entertainment fringe benefit within the meaning of that Act; or

(b) any payment or benefit that is prescribed by the regulations not to be a fringe benefit for the purposes of this definition;

group, used in relation to an employer, means any group of which that employer is, by virtue of Part IIIA , a member;

[Section 2 Subsection (1) amended by No. 69 of 2000, s. 4, Applied:14 Nov 2000] GST means GST as defined in the A New Tax System (Goods and Services Tax) Act 1999 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;

municipal corporation means a council;

pay-roll tax means pay-roll tax chargeable under section 7 ;

regulations means regulations made under this Act;

[Section 2 Subsection (1) amended by No. 69 of 2000, s. 4, Applied:14 Nov 2000] relevant contract payment means a payment for or in relation to the performance of work under a relevant contract –

(a) excluding any GST payable in relation to that contract; and

(b) including the value of any benefits provided under that contract which would be fringe benefits if paid, payable or provided to a person in the capacity of an employee;

re-supply, in relation to goods acquired from a person, includes the supply to the person –

(a) of goods in an altered form or condition; and

(b) of goods in which the first-mentioned goods have been incorporated; and

(c) of an article manufactured or produced from any such goods;

return means a return under section 13 ;

return period means a period in respect of which an employer who is registered, or required to apply for registration, under this Act is required to furnish a return under section 13 ;

services includes the results, whether goods or services, of work performed;

[Section 2 Subsection (1) amended by No. 42 of 1997, s. 4, Applied:01 Jul 1997] superannuation benefit means money 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) a Superannuation Holding Accounts Reserve 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; and

(iii) a wholly or partly unfunded fund or scheme;

supply includes –

(a) the supply by way of sale, exchange, lease, hire or hire-purchase; and

(b) in relation to services, the providing, granting or conferring of services;

[Section 2 Subsection (1) amended by No. 76 of 1997, s. 5, Applied:01 Jul 1998]

taxable wages means wages in respect of which liability to pay pay-roll tax arises under this Act;

[Section 2 Subsection (1) amended by No. 76 of 1997, s. 5, Applied:01 Jul 1998] trustee includes –

(a) a person who is a trustee under an implied or constructive trust; and

(b) in relation to a deceased person, an executor of the will, or an administrator of the estate, of the deceased person; and

(c) a receiver or manager of the property of a company, or a liquidator of a company for the purpose of its winding up; and

(d) a receiver, guardian, committee or manager of the property of a person who is under a legal or other disability; and

(e) a person having possession, control or management of a business or the property of a person who is under a legal or other disability; and

(f) any person acting in a fiduciary capacity;

[Section 2 Subsection (1) amended by No. 69 of 2000, s. 4, Applied:14 Nov 2000]

[Section 2 Subsection (1) amended by No. 69 of 2000, s. 4, Applied:14 Nov 2000] [Section 2 Subsection (1) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] voting share means voting share as defined in the Corporations Act;

wages means any wages, salary, commission, bonuses, fringe benefits or allowances paid or payable (whether at piece work rates or otherwise and whether paid or payable in cash or in kind) to or in relation to an employee as such and, without limiting the generality of the foregoing, includes –

(a) any amount paid or payable by way of remuneration to a person holding office under, or in the service of, the Crown;

(b) any amount paid or payable under any prescribed classes of contracts to the extent to which that payment is attributable to labour;

(ba) any amount paid or payable under a relevant contract payment;

(c) any amount paid or payable by a company by way of remuneration to a director or member of the governing body of that company;

(d) [Section 2 Subsection (1) amended by No. 60 of 2002, s. 28, Applied:01 Jul 2003] any amount paid or payable by way of commission to an insurance or time-payment canvasser or collector;

(e) [Section 2 Subsection (1) amended by No. 60 of 2002, s. 28, Applied:01 Jul 2003] the provision by the employer of meals or sustenance or of the use of premises or quarters as consideration or part consideration for the employee's services; and

(f) [Section 2 Subsection (1) amended by No. 60 of 2002, s. 28, Applied:01 Jul 2003] a payment made in consequence of the retirement from, or termination of, any office or employment of an employee, being –

(i) a lump sum payment paid before or after that retirement or termination in respect of unused annual leave, or unused annual leave and a bonus, loading or other additional payment relating to that leave; or

(ii) an amount paid in respect of unused long service leave; or

(iii) so much of any eligible termination payment (within the meaning of section 27A of the Income Tax Assessment Act 1936 of the Commonwealth) paid or payable by an employer, whether or not paid to the employee or to any other person or body, that would be included in the assessable income of an employee under Subdivision AA of Division 2 of Part III of that Act if the whole of the eligible termination payment had been paid to the employee –

but does not include a reference to allowances for travelling or accommodation paid or payable at a rate in a particular case or class of cases that does not exceed such rate as is prescribed in respect of that case or class of cases.

(1A)  [Section 2 Subsection (1A) inserted by No. 42 of 1997, s. 4, Applied:01 Jul 1997] A reference in the definition of "superannuation benefit" in subsection (1) to an employee includes a reference to any person to whom, by virtue of a paragraph of the definition of "wages" in subsection (1) , an amount paid or payable in the circumstances referred to in that paragraph constitutes wages.

(1B)  [Section 2 Subsection (1B) inserted by No. 42 of 1997, s. 4, Applied:01 Jul 1997] For the purposes of this Act, a superannuation benefit, in relation to the Retirement Benefits Fund scheme established under the Retirement Benefits Act 1993 , is to be calculated on a monthly basis –

(a) in the case of an employee to whom Part 4 of the Retirement Benefits Regulations 1994 applies and who is employed by a person, organisation or authority specified in paragraph (b), (c) or (d) of the definition of "Agency" in regulation 3(1) of those regulations, by multiplying the wages of the employee by the average new entrant contribution rate; and

(b) in the case of an employee to whom Part 4 of the Retirement Benefits Regulations 1994 applies and who is employed by a Government department or organisation referred to in paragraph (a) of the definition of "Agency" in regulation 3(1) of those regulations, by multiplying the wages of the employee by 11% or such other rate as is determined by the Treasurer from time to time; and

(c) in the case of an employee to whom Part 5 of the Retirement Benefits Regulations 1994 applies, by multiplying the wages of the employee by the minimum employer contribution rate specified in the Superannuation Guarantee (Administration) Act 1992 of the Commonwealth.

(2)  [Section 2 Subsection (2) substituted by No. 21 of 1990, s. 4 ][Section 2 Subsection (2) substituted by No. 60 of 2002, s. 28, Applied:01 Jul 2003] For the purposes of this Act, the value of taxable wages, comprising a fringe benefit, is the value that would be the fringe benefits taxable amount for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth as amended and in force for the time being.

(2A)  [Section 2 Subsection (2A) inserted by No. 21 of 1990, s. 4 ]Where a relevant contract payment is included in a larger amount payable by the employer under a relevant contract, that proportion of the larger amount which is not to be attributable to the relevant contract payment or the re-supply of goods by an employee under the relevant contract may be expressed as a percentage and prescribed by the regulations.

(2B)  [Section 2 Subsection (2B) inserted by No. 21 of 1990, s. 4 ]Where a percentage is prescribed under subsection (2A) , it may be prescribed in respect of a class of relevant contract.

(2C)  [Section 2 Subsection (2C) inserted by No. 21 of 1990, s. 4 ]For the purposes of the definition of "relevant contract payment", the value of a benefit provided under a relevant contract shall be determined in accordance with subsection (2) as if that benefit were a fringe benefit.

(3)  For the purposes of this Act other than section 3 (2) (d) , the Australian Capital Territory (including the Jervis Bay Territory) and the Northern Territory of Australia are together deemed to be a State of the Commonwealth.

(4)  For the purposes of this Act, a reference to wages paid by an employer does not include wages which, having become payable in a return period and having been included in a return in respect of that period, are paid at a time concurrent with a subsequent return period in respect of that employer.

(5)  [Section 2 Subsection (5) inserted by No. 7 of 1976, sched. 2 ][Section 2 Subsection (5) amended by No. 9 of 1982, sched. 10 ][Section 2 Subsection (5) omitted by No. 21 of 1990, s. 4 ][Section 2 Subsection (5) inserted by No. 42 of 1997, s. 4, Applied:01 Jul 1997] A reference to wages in all provisions of this Act except subsection (1B) includes a reference to superannuation benefits other than those paid or payable in respect of services performed or rendered by an employee before 1 July 1997.

(6)  [Section 2 Subsection (5) inserted by No. 7 of 1976, sched. 2 ][Section 2 Subsection (6) amended by No. 9 of 1982, sched. 10 ][Section 2 Subsection (6) omitted by No. 21 of 1990, s. 4 ][Section 2 Subsection (6) inserted by No. 42 of 1997, s. 4, Applied:01 Jul 1997] If an employer has paid money on or after 30 April 1997 but before 1 July 1997 as a superannuation benefit in respect of services to be performed or rendered by an employee on or after 1 July 1997, that money is to be regarded, for the purposes of this Act, as a superannuation benefit paid on 1 July 1997 in respect of services performed or rendered by the employee on that day.

(7)  [Section 2 Subsection (7) inserted by No. 42 of 1997, s. 4, Applied:01 Jul 1997] For the purposes of this Act, a superannuation, provident or retirement fund or scheme is unfunded to the extent that money paid or payable by an employer in respect of an employee covered by the fund or scheme is not paid or payable during the employee's period of service with the employer.

2A.   

[Section 2A1st Inserted by No. 76 of 1997, s. 6, Applied:01 Jul 1998] [Section 2A1st Repealed by No. 20 of 2000, s. 4, Applied:01 Jul 2000] .  .  .  .  .  .  .  .  

2AA.   Taxation Administration Act 1997

[Section 2AA Inserted by No. 20 of 2000, s. 4, Applied:01 Jul 2000] This Act is to be read together with the Taxation Administration Act 1997 which provides for the administration and enforcement of this Act.

2AB.   Employment agents

[Section 2AB Inserted by No. 20 of 2000, s. 4, Applied:01 Jul 2000]

(1)  An employment agency contract is a contract –

(a) that is not a contract of employment; and

(b) under which a person (in this section referred to as an "employment agent") by arrangement procures the services of another person (in this section referred to as a "contract worker") for a client of his or hers and as a result receives directly or indirectly payment, whether by way of a lump sum or ongoing fee, during or in respect of the period when the services are provided by the contract worker to the client.

(2)  For the purposes of this Act –

(a) the employment agent under an employment agency contract is taken to be an employer; and

(b) the contract worker under an employment agency contract is taken to be an employee of the employment agent; and

(c) the following amounts are taken to be wages paid or payable by the employment agent:

(i) any amount paid or payable by way of remuneration to the contract worker in respect of the provision of services in connection with an employment agency contract;

(ii) an amount representing the value of any benefits provided for, or in respect of, the provision of services in connection with an employment agency contract that would be a fringe benefit if provided to a person in the capacity of an employee;

(iii) [Section 2AB Subsection (2) amended by No. 69 of 2000, s. 5, Applied:14 Nov 2000] the amount of any payment made in respect of the contract worker that would be a superannuation benefit if made in respect of a person in the capacity of an employee; and

(d) [Section 2AB Subsection (2) amended by No. 69 of 2000, s. 5, Applied:14 Nov 2000] any amount taken to be wages paid or payable by the employment agent under paragraph (c) does not include any GST payable on the supply to which the employment agency contract relates.

(3)  [Section 2AB Subsection (3) amended by No. 81 of 2003, s. 4, Applied:15 Dec 2003] Subsection (2)(c) does not apply to an amount that would be exempt from pay-roll tax under section 10 if the contract worker were paid by the client as an employee and a written statement to that effect has been given to the employment agent by the client.

(4)  If a statement made under subsection (3) is false, the client is liable to pay to the Commissioner any pay-roll tax that would be payable if the statement had not been made.

(5)  If it is not reasonably practicable to determine the extent to which an amount, benefit or payment constitutes wages under subsection (2)(c) , the Commissioner may accept a return, or make an assessment, in which the amount on which pay-roll tax is levied is determined on the basis of estimates.

2A.   Superannuation benefits relating to services performed before 1 July 1997

[Section 2A Inserted by No. 42 of 1997, s. 5, Applied:01 Jul 1997]

(1)  Money paid or payable by an employer on or after 1 July 1997 as a superannuation benefit that is alleged by the employer to be paid or payable in respect of services performed or rendered by an employee before that day is to be evidenced to the satisfaction of the Commissioner in the employer's records for pay-roll tax purposes.

(2)  In particular, the employer's records are to show the manner of calculation of the superannuation benefit and any actuarial basis for it.

(3)  For the purposes of subsection (2) and of any assessment of pay-roll tax to which that subsection is material, the certificate of a fellow or accredited member of the Institute of Actuaries of Australia to the effect that the actuarial basis on which an amount is calculated is justified is evidence and, in the absence of evidence to the contrary, proof of that fact.

(4)  If records are not kept as required by this section, the Commissioner is entitled to assume, for the purposes of an assessment of pay-roll tax, that a payment of money by an employer as a superannuation benefit on or after 1 July 1997 is an amount payable in respect of services performed or rendered by an employee on or after that day.

2B.   Superannuation benefits not readily related to particular employees or their periods of service

[Section 2B Inserted by No. 42 of 1997, s. 5, Applied:01 Jul 1997] For the purposes of an assessment of pay-roll tax, the Commissioner may determine –

(a) whether, and the extent to which, any money paid or payable by an employer to a superannuation, provident or retirement fund or scheme that is not identified by the employer as paid or payable in respect of a particular employee (and whether or not purporting to be so paid or payable on any actuarial basis) is to be regarded as a superannuation benefit paid or payable in respect of a particular employee; and

(b) subject to section 2A , the portion of any money paid on or after 1 July 1997 by an employer as a superannuation benefit 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 or rendered services to the employer on or after, as well as before, 1 July 1997, that is to be regarded as having been paid in respect of services performed or rendered before that date.

3.   Application of Act

(1)  Except as otherwise expressly provided in this Act, the provisions of this Act apply to wages paid or payable to any person in the service of an employer, not being wages which, being taxable under the Commonwealth Act and the Pay-roll Tax Act 1941-1969 of the Commonwealth (notwithstanding that those wages were paid after the commencement of this Act), have been included in a return under the Commonwealth Act .

(2)  [Section 3 Subsection (2) amended by No. 21 of 1990, s. 5 ]For the purposes of this section, employer includes –

(a) the Crown;

(b) a municipal corporation;

(c) an authority within the meaning of the Statutory Authorities Act 1962 ;

(d) any authority constituted under a law of any State other than this State; and

(e) any authority constituted under a law of the Commonwealth in so far as any such authority is not immune from the operation of this Act by virtue of any law of the Commonwealth.

3A.   Application of Act to relevant contracts

[Section 3A Inserted by No. 21 of 1990, s. 6 ]

(1)  This Act applies to relevant contracts.

(2)  A relevant contract is a contract under which a person (in this section referred to as a "designated person") 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 a person for or in relation to the performance of work; or

(c) gives out goods to a natural person for work to be performed by that person in respect of those goods and for the re-supply of those goods –

(i) to the designated person; or

(ii) where the designated person is a member of a group, to another member of that group.

(3)  A relevant contract does not include a contract under which a designated person in the course of a business carried on by the designated person is supplied with services for or in relation to the performance of work that are ancillary –

(a) to the supply of goods by the person supplying the services; or

(b) to the use of goods which are the property of that person.

(4)  A relevant contract does not include a contract under which a designated person in the course of a business carried on by the designated person is supplied with services for or in relation to the performance of work where –

(a) [Section 3A Subsection (4) amended by No. 20 of 2000, s. 5, Applied:01 Jul 2000] those services are of a kind not ordinarily required by the designated person and are provided by a person who has performed services of a similar kind to the public generally in the same financial year; or

(b) those services are of a kind ordinarily required by the designated person for less than 180 days in a financial year; or

(c) 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 a financial year and are not services –

(i) provided by a person who provides similar services to the designated person; or

(ii) for or in relation to the performance of work where any person who performs the work also performs similar work for the designated person; or

(d) the payment of the consideration under the contract is at a rate not less than $500 000 per year; or

(e) [Section 3A Subsection (4) amended by No. 20 of 2000, s. 5, Applied:01 Jul 2000] the Commissioner is satisfied that those services are provided by a person who has performed services of a similar kind to the public generally in the same financial year.

(4A)  [Section 3A Subsection (4A) inserted by No. 20 of 2000, s. 5, Applied:01 Jul 2000] Where a contract provides for the provision of services by an employment agent, or a contract worker procured by an employment agent, the contract is taken not to be a relevant contract.

(5)  Unless the Commissioner determines that the contract was entered into with an intention to directly or indirectly avoid or evade the payment of tax by any person, a relevant contract does not include a contract under which a designated person in the course of a business carried on by the designated person is supplied with services for or in relation to the performance of work by a person (in this subsection referred to as the "contractor") where that work is performed –

(a) 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

(b) 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

(c) 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.

3B.   Determination of certain contracts to be relevant contracts

[Section 3B Inserted by No. 21 of 1990, s. 6 ]

(1)  Notwithstanding section 3A (4) , the Commissioner may, by notice in writing served on a person (in this section referred to as the "designated person") determine a contract to be a relevant contract –

(a) where the designated person in the course of business carried on by the designated person supplies to another person services for or in relation to the performance of work under a contract referred to in section 3A (4) (d) ; and

(b) the designated person in the course of the same business is supplied with the services for or in relation to the performance of work under a contract referred to in section 3A (4) (b) or (c) .

(2)  Subsection (1) does not apply if the designated person satisfies the Commissioner that the business is carried on independently of, and is not connected with the carrying on of a business carried on by another person or other persons and that the business is not carried on with an intention to directly or indirectly avoid or evade the payment of tax by any person.

3C.   Liability to pay-roll tax on relevant contract payments

[Section 3C Inserted by No. 21 of 1990, s. 6 ]

(1)  Where an employer has paid pay-roll tax in respect of a relevant contract payment, no other person is liable to pay-roll tax in respect of that payment.

(2)  Where a person other than an employer makes a payment in respect of wages in relation to the performance of work under a relevant contract, that person is not liable to pay-roll tax in respect of those wages unless the employer fails to pay pay-roll tax in respect of the relevant contract payment to which those wages relate.

3D.   Effect of certain contracts

[Section 3D Inserted by No. 21 of 1990, s. 6 ]

(1)  Where –

(a) a person enters into a contract under which a natural person tenders for or on behalf of another person services in respect of which payment is made to another person related or connected to the natural person; and

(b) the effect of the contract is to reduce or avoid the liability of any person to the payment of pay-roll tax –

the Commissioner may make any or all of the following determinations:

(c) determine that the contract be disregarded for the purposes of this Act;

(d) determine that any party to the contract is an employer for the purposes of this Act;

(e) determine that any payment in respect of the contract is wages for the purposes of this Act.

(1A)  [Section 3D Subsection (1A) inserted by No. 69 of 2000, s. 6, Applied:14 Nov 2000] A determination made under subsection (1)(e) is not to include any GST payable on the supply to which the contract relates.

(2)  A determination made under subsection (1) –

(a) shall be in a written form; and

(b) shall set out the facts on which the Commissioner relies and the reasons for making the determination; and

(c) shall be served on the employer.

(3)  This section has effect in relation to contracts made before, on or after the commencement of this section.

3E.   Deeming of certain payments to be superannuation benefits

[Section 3E Inserted by No. 42 of 1997, s. 6, Applied:01 Jul 1997] For the purposes of this Act, an amount paid or payable for or in relation to the performance of work under a relevant contract is deemed to include any payment made by a designated person within the meaning of section 3A under a relevant contract that would be a superannuation benefit if made in relation to a person in the capacity of an employee.

PART II - .  .  .  .  .  .  .  .  

[Part II Repealed by No. 76 of 1997, s. 7, Applied:01 Jul 1998]

4.   

[Section 4 Subsection (1) amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 4 Subsection (1) substituted by No. 5 of 1990, s. 3 and Sched. 1 ][Section 4 Subsection (1A) inserted by No. 50 of 1988, s. 5 ][Section 4 Subsection (7) amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 4 Repealed by No. 76 of 1997, s. 7, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

5.   

[Section 5 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 5 Repealed by No. 76 of 1997, s. 7, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

PART III - Liability to Taxation

6.   Wages in respect of which liability to pay-roll tax is imposed

(1)  [Section 6 Subsection (1) amended by No. 42 of 1997, s. 7, Applied:01 Jul 1997] Subject to subsection (1A) and section 10 , the wages in respect of which liability to pay tax under this Act is imposed are wages that are paid or payable by an employer on or after 1st September 1971 or of the month in which this Act commences, whichever is the later (whether in respect of services performed or rendered before, on, or after that day), and–

(a) [Section 6 Subsection (1) amended by No. 60 of 2002, s. 29, Applied:19 Dec 2002] are wages that are paid or payable in this State, not being so paid or payable in respect of –

(i) services performed or rendered wholly in one other State; or

(ii) subject to subsection (1AA) , services performed or rendered by a person wholly in another country for a continuous period of more than 6 months beginning on the day on which wages were first paid or payable to that person for services so performed or rendered; or

(b) are wages that are paid or payable elsewhere than in this State in respect of services performed or rendered wholly in this State; or

(c) are wages that are paid or payable outside Australia in respect of services performed or rendered mainly in this State.

(1AA)  [Section 6 Subsection (1AA) inserted by No. 60 of 2002, s. 29, Applied:19 Dec 2002] Wages referred to in subsection (1)(a)(ii) are liable to pay-roll tax under this Act during the period of 6 months beginning on the day on which wages were first paid or payable for the relevant services.

(1A)  [Section 6 Subsection (1A) inserted by No. 42 of 1997, s. 7, Applied:01 Jul 1997] Wages that are superannuation benefits that are not paid in respect of services performed or rendered by an employee in a particular month are liable to pay-roll tax under this Act as if they were paid or payable in respect of services performed or rendered during the month in which they were paid or became payable.

(1B)  [Section 6 Subsection (1B) inserted by No. 42 of 1997, s. 7, Applied:01 Jul 1997] Nothing in subsection (1A) applies to render wages that are superannuation benefits paid or payable in respect of services performed or rendered by an employee before 1 July 1997 liable to pay-roll tax.

(2)  For the purposes of subsection (1) (a) , wages that are payable to a person by his employer but have not been paid (not being wages that under the terms of employment are payable in this State or in another State) are deemed –

(a) where those wages are payable in respect of services performed or rendered wholly in this State, to be wages payable to that person in this State;

(b) where those wages are not payable in respect of services performed or rendered wholly in this State or wholly in one other State and the wages last paid or payable to that person by that employer were included or are required to be included in a return under this Act, to be wages payable to that person in this State; or

(c) where those wages are not deemed –

(i) under paragraph (a) or paragraph (b) to be wages payable to that person in this State; or

(ii) under any provision of a corresponding law to be wages payable in the State to which that corresponding law applies –

to be wages payable to that person in this State in any case in which the services last performed or rendered by that person for that employer, before those wages became payable, were performed or rendered in this State.

(3)  For the purposes of this section, where a cheque, bill of exchange, promissory note, money order, or postal order issued by a post office, or any other instrument is sent or given by an employer to a person or his agent in that behalf at a place in Australia in payment of wages, those wages are deemed to have been paid at that place and to have been paid when the instrument was so sent or given.

7.   Imposition of pay-roll tax

[Section 7 Subsection (1A) inserted by No. 79 of 1984, s. 5 ][Section 7 Substituted by No. 50 of 1988, s. 6 ]

(1)  Subject to, and in accordance with the provisions of, this Act, there shall be charged, levied, collected, and paid for and towards the Consolidated Fund, in respect of all taxable wages, pay-roll tax at the appropriate rate prescribed by this section.

(1A)  [Section 7 Subsection (1A) inserted by No. 82 of 1995, s. 3 ][Section 7 Subsection (1A) omitted by No. 20 of 2000, s. 6, Applied:01 Jul 2000] .  .  .  .  .  .  .  .  

(1B)  [Section 7 Subsection (1B) inserted by No. 82 of 1995, s. 3 ][Section 7 Subsection (1B) amended by No. 42 of 1997, s. 8 ][Section 7 Subsection (1B) amended by No. 42 of 1997, s. 8, Applied:01 Jul 1997] [Section 7 Subsection (1B) omitted by No. 20 of 2000, s. 6, Applied:01 Jul 2000] .  .  .  .  .  .  .  .  

(2)  [Section 7 Subsection (2) amended by No. 36 of 2001, s. 4, Applied:01 Jul 2001] [Section 7 Subsection (2) amended by No. 42 of 1997, s. 8, Applied:01 Jul 1997] [Section 7 Subsection (2) amended by No. 40 of 1990, s. 3 ][Section 7 Subsection (2) omitted by No. 35 of 1991, s. 3 ][Section 7 Subsection (2) inserted by No. 39 of 1992, s. 3 ][Section 7 Subsection (2) substituted by No. 20 of 2000, s. 6, Applied:01 Jul 2000] For the purposes of ascertaining the monthly pay-roll tax payable by an employer for the financial year commencing on 1 July 2001 and subsequent financial years, an amount calculated in accordance with the following formulae is to be deducted from the amount of taxable wages each month:

(a) [Section 7 Subsection (2) amended by No. 36 of 2001, s. 4, Applied:01 Jul 2001] for the financial year commencing on 1 July 2001 –

(b) for the financial year commencing on 1 July in any subsequent year –

where–

T is the taxable wages for the month; and

A is the Australian wages for the month; and

D is the number of days in the month during which the employer was an employer; and

M is the number of days in the month.

(2A)  [Section 7 Subsection (2A) amended by No. 36 of 2001, s. 4, Applied:01 Jul 2001] [Section 7 Subsection (2A) inserted by No. 40 of 1990, s. 3 ][Section 7 Subsection (2A) amended by No. 35 of 1991, s. 3 ][Section 7 Subsection (2A) omitted by No. 39 of 1992, s. 3 ][Section 7 Subsection (2A) inserted by No. 42 of 1997, s. 8, Applied:01 Jul 1997] [Section 7 Subsection (2A) substituted by No. 20 of 2000, s. 6, Applied:01 Jul 2000] If the Australian wages paid or payable by an employer for a month after June 2001 but before July 2002 are more than $83 333 for that month, the rate of pay-roll tax payable for that month in respect of taxable wages included in those Australian wages is 6.3%.

(2B)  [Section 7 Subsection (2B) amended by No. 36 of 2001, s. 4, Applied:01 Jul 2001] [Section 7 Subsection (2B) inserted by No. 35 of 1991, s. 3 ][Section 7 Subsection (2B) omitted by No. 39 of 1992, s. 3 ][Section 7 Subsection (2B) substituted by No. 20 of 2000, s. 6, Applied:01 Jul 2000] If the Australian wages paid or payable by an employer for a month after June 2002 are more than $84 167 for that month, the rate of pay-roll tax payable for that month in respect of taxable wages included in those Australian wages is 6.24%.

(2C)  [Section 7 Subsection (2C) inserted by No. 60 of 2002, s. 30, Applied:01 Jul 2003] If the Australian wages paid or payable by an employer for a month after June 2003 are more than $84 167 for that month, the rate of pay-roll tax payable for that month in respect of taxable wages included in those Australian wages is 6.10%.

(3)  Except as otherwise provided in this Act, all taxes paid, and penalties recovered under, this Act shall be paid into the Consolidated Fund.

(4)  The Treasurer may pay out of any payments under this Act for the time being not paid into the Consolidated Fund any sums authorized under this Act to be paid by way of refund.

8.   Employer to pay pay-roll tax

Pay-roll tax shall be paid by the employer by whom the taxable wages are paid or payable.

9.   

[Section 9 Substituted by No. 65 of 1975, s. 3 ][Section 9 Subsection (3) amended by No. 64 of 1976, s. 2 ][Section 9 Subsection (3) amended by No. 91 of 1980, s. 4 ][Section 9 Subsection (3) amended by No. 64 of 1981, s. 4 ][Section 9 Subsection (3) amended by No. 45 of 1982, s. 4 ][Section 9 Subsection (3) amended by No. 57 of 1983, s. 4 ][Section 9 Subsection (3) amended by No. 96 of 1985, s. 4 ][Section 9 Subsection (3) amended by No. 50 of 1988, s. 7 ][Section 9 Substituted by No. 21 of 1990, s. 7 ][Section 9 Subsection (1) amended by No. 76 of 1997, s. 8, Applied:01 Jul 1998] [Section 9 Subsection (1) amended by No. 82 of 1995, s. 4 ][Section 9 Subsection (4) amended by No. 35 of 1991, s. 4 ][Section 9 Subsection (4) amended by No. 39 of 1992, s. 4 ][Section 9 Subsection (5) inserted by No. 82 of 1995, s. 4 ][Section 9 Repealed by No. 20 of 2000, s. 7, Applied:01 Jul 2000] .  .  .  .  .  .  .  .  

9A.   

[Section 9A Subsection (1) amended by No. 31 of 1989, s. 4 ][Section 9A Repealed by No. 21 of 1990, s. 8 ].  .  .  .  .  .  .  .  

10.   Exemption from pay-roll tax

[Section 10 Amended by No. 21 of 1990, s. 9 ][Section 10 Amended by No. 35 of 1991, s. 5 ][Section 10 Amended by No. 30 of 1995, s. 3 and Sched. 1 ]The provisions of this Part do not apply to wages paid or payable –

(a) by the Governor of a State;

(b) by a religious or public benevolent institution, or a public hospital;

(c) by a hospital which is carried on by a society or association otherwise than for the purpose of profit or gain to the individual members of the society or association;

(d) by a school or college (other than a technical school or a technical college) which –

(i) is carried on by a body corporate, society, or association otherwise than for the purpose of profit or gain to the individual members of the body corporate, society, or association; and

(ii) provides education at or below, but not above, the secondary level of education;

(e) [Section 10 Amended by No. 65 of 2003, s. 17, Applied:01 Jul 2004] .  .  .  .  .  .  .  .  

(f) to members of his official staff by –

(i) a consular or other representative (other than a diplomatic representative) in Australia of the Government of any other part of Her Majesty's Dominions or of any other country; or

(ii) a Trade Commissioner representing in Australia any other part of Her Majesty's Dominions;

(g) by the Commonwealth War Graves Commission;

(h) by the Australian-American Educational Foundation;

(i) to a person who is a member of the Defence Force of the Commonwealth or of the armed force of any part of Her Majesty's Dominions, being wages paid or payable by the employer from whose employment the person is on leave by reason of his being such a member;

(j) out of the Consolidated Fund –

(i) on account of salaries and payments related thereto set out in Subdivision A in each case of the second schedule to the Consolidated Revenue Fund Appropriation Act 1970-1971 ; or

(ii) on account of salaries and payments related thereto under any other Act which appropriates the Consolidated Fund for that purpose.

11.   

[Section 11 Subsection (1) amended by No. 7 of 1976, s. 5 ][Section 11 Subsection (4) substituted by No. 65 of 1975, s. 4 ][Section 11 Subsection (4) amended by No. 64 of 1976, s. 4 ][Section 11 Subsection (4) substituted by No. 78 of 1977, s. 2 ][Section 11 Subsection (4) substituted by No. 91 of 1980, s. 5 ][Section 11 Subsection (4) substituted by No. 45 of 1982, s. 5 ][Section 11 Subsection (4) substituted by No. 58 of 1983, s. 5 ][Section 11 Subsection (4A) inserted by No. 65 of 1975, s. 4 ][Section 11 Subsection (4A) amended by No. 64 of 1976, s. 4 ][Section 11 Subsection (4A) substituted by No. 78 of 1977, s. 2 ][Section 11 Subsection (4A) substituted by No. 45 of 1982, s. 5 ][Section 11 Subsection (4A) amended by No. 57 of 1983, s. 5 ][Section 11 Subsection (4A) amended by No. 96 of 1985, s. 5 ][Section 11 Subsection (4B) inserted by No. 64 of 1976, s. 4 ][Section 11 Repealed by No. 21 of 1990, s. 10 ].  .  .  .  .  .  .  .  

11A.   Annual adjustments

[Section 11A Inserted by No. 79 of 1984, s. 6 ][Section 11A Substituted by No. 50 of 1988, s. 9 ]

(1)  [Section 11A Subsection (1) amended by No. 21 of 1990, s. 11 ]Where taxable wages are paid or payable by an employer during a financial year, the Commissioner shall calculate the annual amount of pay-roll tax payable by the employer for that financial year.

(2)  [Section 11A Subsection (2) omitted by No. 21 of 1990, s. 11 ][Section 11A Subsection (2) inserted by No. 40 of 1990, s. 4 ][Section 11A Subsection (2) substituted by No. 35 of 1991, s. 6 ][Section 11A Subsection (2) omitted by No. 39 of 1992, s. 5 ].  .  .  .  .  .  .  .  

(3)  [Section 11A Subsection (3) amended by No. 36 of 2001, s. 5, Applied:01 Jul 2001] [Section 11A Subsection (3) amended by No. 21 of 1990, s. 11 ][Section 11A Subsection (3) substituted by No. 40 of 1990, s. 4 ][Section 11A Subsection (3) substituted by No. 35 of 1991, s. 6 ][Section 11A Subsection (3) substituted by No. 82 of 1995, s. 5 ][Section 11A Subsection (3) substituted by No. 20 of 2000, s. 8, Applied:01 Jul 2000] For any employer the annual amount of pay-roll tax payable under subsection (1) for a financial year commencing on 1 July 2001 is –

(a) [Section 11A Subsection (3) amended by No. 36 of 2001, s. 5, Applied:01 Jul 2001] if adjusted Australian wages for the year are $1 000 000 or less, nil; or

(b) [Section 11A Subsection (3) amended by No. 36 of 2001, s. 5, Applied:01 Jul 2001] if adjusted Australian wages for the year are more than $1 000 000, an amount ascertained by applying the rate of 6.3% to the difference between the total of the taxable wages paid or payable by the employer during that financial year and an amount calculated in accordance with the following formula:

(3A)  [Section 11A Subsection (3A) inserted by No. 82 of 1995, s. 5 ][Section 11A Subsection (3A) amended by No. 16 of 1996, s. 4 ][Section 11A Subsection (3A) substituted by No. 20 of 2000, s. 8, Applied:01 Jul 2000] For any employer the annual amount of pay-roll tax payable under subsection (1) for a financial year commencing on or after 1 July 2002 is –

(a) [Section 11A Subsection (3A) amended by No. 36 of 2001, s. 5, Applied:01 Jul 2001] if adjusted Australian wages for the year are $1 010 000 or less, nil; or

(b) [Section 11A Subsection (3A) amended by No. 36 of 2001, s. 5, Applied:01 Jul 2001] if adjusted Australian wages for the year are more than $1 010 000, an amount ascertained by applying the rate of 6.24% to the difference between the total of the taxable wages paid or payable by the employer during that financial year and an amount calculated in accordance with the following formula:

(3B)  [Section 11A Subsection (3B) inserted by No. 82 of 1995, s. 5 ][Section 11A Subsection (3B) amended by No. 16 of 1996, s. 4 ][Section 11A Subsection (3B) amended by No. 42 of 1997, s. 9, Applied:01 Jul 1997] [Section 11A Subsection (3B) omitted by No. 20 of 2000, s. 8, Applied:01 Jul 2000] [Section 11A Subsection (3B) inserted by No. 60 of 2002, s. 31, Applied:01 Jul 2003] For any employer the annual amount of pay-roll tax payable under subsection (1) for a financial year commencing on or after 1 July 2003 is –

(a) if adjusted Australian wages for the year are $1 010 000 or less, nil; or

(b) if adjusted Australian wages for the year are more than $1 010 000, an amount ascertained by applying the rate of 6.10% to the difference between the total of the taxable wages paid or payable by the employer during that financial year and an amount calculated in accordance with the following formula:

(3C)  [Section 11A Subsection (3C) amended by No. 60 of 2002, s. 31, Applied:01 Jul 2003] [Section 11A Subsection (3C) amended by No. 20 of 2000, s. 8, Applied:01 Jul 2000] [Section 11A Subsection (3C) inserted by No. 16 of 1996, s. 4 ]For the purposes of the formulae used in subsections (3) , (3A) and (3B) –

T is the taxable wages for the relevant period or financial year; and

A is the Australian wages for the relevant period or financial year; and

D is the number of days in the relevant period or financial year during which the employer was an employer.

(4)  [Section 11A Subsection (4) amended by No. 21 of 1990, s. 11 ]Where taxable wages are paid or payable by an employer during a financial year –

(a) the Commissioner shall, on application made by that employer, where the amount of pay-roll tax paid or payable by that employer when he furnishes the returns relating to that financial year is greater than the annual amount of pay-roll tax payable by that employer for that financial year, refund or rebate to that employer an amount equal to the difference between those amounts, reduced by any amount previously refunded or rebated to him in respect of that financial year; or

(b) that employer shall, where the amount of pay-roll tax paid or payable by that employer when he furnishes the returns relating to that financial year is less than the annual amount of pay-roll tax payable by that employer for that financial year, pay to the Commissioner as pay-roll tax, within the time during which he is required to furnish a return under this Act in respect of the period that is, or includes, the month of June in that financial year, an amount equal to the difference between those amounts.

(5)  [Section 11A Subsection (5) amended by No. 21 of 1990, s. 11 ][Section 11A Subsection (5) amended by No. 40 of 1990, s. 4 ][Section 11A Subsection (5) amended by No. 35 of 1991, s. 6 ][Section 11A Subsection (5) amended by No. 39 of 1992, s. 5 ][Section 11A Subsection (5) amended by No. 82 of 1995, s. 5 ][Section 11A Subsection (5) substituted by No. 20 of 2000, s. 8, Applied:01 Jul 2000] In this section,

adjusted Australian wages means, in respect of a financial year commencing on or after 1 July 1992, the Australian wages paid or payable by an employer during that financial year, multiplied by –

where D is the number of days on which the employer was an employer during the financial year.

(6)  [Section 11A Subsection (6) omitted by No. 20 of 2000, s. 8, Applied:01 Jul 2000] .  .  .  .  .  .  .  .  

PART IIIA - Grouping Provisions

[Part IIIA  Inserted by No. 21 of 1990, s. 12 ]

11B.   Interpretation of Part IIIA

[Section 11B Inserted by No. 21 of 1990, s. 12 ]In this Part, business includes –

(a) a trade or profession; and

(b) any other activity carried on for fee, gain or reward; and

(c) an activity carried on by an employer of employing any person where that person performs duties for or in connection with another business.

11C.   Grouping of corporations

[Section 11C Inserted by No. 21 of 1990, s. 12 ][Section 11C Amended by No. 69 of 2000, s. 7, Applied:14 Nov 2000] [Section 11C Amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] For the purposes of this Act, 2 corporations constitute a group if they are related to each other under section 50 of the Corporations Act.

11D.   Grouping where employees used in another business

[Section 11D Inserted by No. 21 of 1990, s. 12 ]For the purposes of this Act, where –

(a) an employee of an employer performs duties solely or mainly for or in connection with a business carried on by that employer and another person or by another person; or

(b) an employer has, in respect of the employment of, or the performance of duties by, one or more of his employees, a contract with another person relating to a business carried on by that other person whether alone or together with another person –

that employer and –

(c) each such other person; or

(d) both or all of those other persons –

constitute a group.

11E.   Grouping of commonly controlled businesses

[Section 11E Inserted by No. 21 of 1990, s. 12 ]

(1)  Where the same person has, or the same persons have together, a controlling interest in each of 2 businesses, the persons who carry on those businesses constitute a group.

(2)  For the purposes of subsection (1) , the same person has, or the same persons have together, a controlling interest in each of 2 businesses if that person has, or those persons have together, a controlling interest under any of the following paragraphs in one of the businesses and a controlling interest under the same or another of the following paragraphs in the other business:

(a) in a business carried on by a corporation, where any director, who is entitled to exercise a majority in voting power at meetings of the directors of the corporation or is accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of that person or of those persons acting together;

(b) [Section 11E Subsection (2) amended by No. 20 of 2000, Sched. 1, Applied:01 Jul 2000] in a business carried on by a corporation that has a share capital, where that person or those persons acting together may (whether directly or indirectly) exercise, control the exercise of, or substantially influence the exercise of, more than 50 per cent of the voting power attached to voting shares issued by the corporation;

(c) in a business carried on by a partnership, where that person or those persons –

(i) [Section 11E Subsection (2) amended by No. 20 of 2000, Sched. 1, Applied:01 Jul 2000] owns, or own together (whether or not beneficially) more than 50 per cent of the capital of the partnership; or

(ii) [Section 11E Subsection (2) amended by No. 20 of 2000, Sched. 1, Applied:01 Jul 2000] is, or are together, entitled (whether or not beneficially) to more than 50 per cent of any profits of the partnership;

(d) [Section 11E Subsection (2) amended by No. 20 of 2000, Sched. 1, Applied:01 Jul 2000] in a business carried on under a trust, if that person (whether or not as the trustee of another trust) is the beneficiary, or those persons (whether or not as the trustees of another trust) are together the beneficiaries, in respect of more than 50 per cent of the value of the interests in the trust first-mentioned in this paragraph;

(e) in a business where a person (whether or not a trustee of a trust) is the sole owner of the business or 2 or more trustees of a trust have a controlling interest in a business of which they are the owners.

(3)  [Section 11E Subsection (3) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] [Section 11E Subsection (3) amended by No. 69 of 2000, s. 8, Applied:14 Nov 2000] Where a corporation has a controlling interest under subsection (2) in a business, it shall be deemed to have a controlling interest in any other business in which another corporation that is deemed to be related to it under section 50 of the Corporations Act has a controlling interest.

(4)  Where –

(a) a person has, or persons have together, a controlling interest under subsection (2) in a business; and

(b) the person or persons who carries or carry on that business has or have such a controlling interest in another business –

the person or persons referred to in paragraph (a) shall be deemed to have a controlling interest in the business referred to in paragraph (b) .

(5)  [Section 11E Subsection (5) amended by No. 20 of 2000, Sched. 1, Applied:01 Jul 2000] Where–

(a) a person is a beneficiary under a trust; or

(b) 2 or more persons together are beneficiaries under a trust–

in respect of more than 50 per cent of the value of the interests in that trust and the trustee or trustees of that trust has or have under subsection (2) a controlling interest in a business, that beneficiary or those beneficiaries shall, for the purposes of subsection (2) , be deemed to have a controlling interest in that business.

11F.   Smaller groups subsumed into larger groups

[Section 11F Inserted by No. 21 of 1990, s. 12 ]If a person is a member of 2 or more groups all the members of those groups constitute 1 group for the purposes of this Act.

11G.   Grouping provisions to operate independently

[Section 11G Inserted by No. 21 of 1990, s. 12 ]The fact that a person is not a member of a group constituted under one provision of this Part does not prevent that person from being a member of a group constituted under another provision of this Part.

11H.   Beneficiaries under discretionary trusts

[Section 11H Inserted by No. 21 of 1990, s. 12 ][Section 11H Amended by No. 20 of 2000, Sched. 1, Applied:01 Jul 2000] A person who, as the result of the exercise of a power or discretion by the trustee of a discretionary trust or by any other person or by that trustee and any other person, may benefit under that trust shall be deemed, for the purposes of this Part, to be a beneficiary in respect of more than 50 per cent of the value of the interests in that trust.

11I.   Exclusion of persons from groups

[Section 11I Inserted by No. 21 of 1990, s. 12 ]

(1)  [Section 11I Subsection (1) substituted by No. 20 of 2000, s. 9, Applied:01 Jul 2000] The Commissioner may, by order in writing, exclude from a group that is constituted as mentioned in section 11D any of its members where the Commissioner is satisfied that the businesses carried on by that member are carried on substantially independently of, and are not substantially connected with, the carrying on of a business of another member of the group.

(2)  In being satisfied as to the matters referred to in subsection (1) , the Commissioner shall have regard to –

(a) the nature and degree of ownership or control of the businesses concerned; and

(b) the nature of the businesses; and

(c) any other matter that the Commissioner considers relevant.

(2A)  [Section 11I Subsection (2A) inserted by No. 36 of 2001, s. 6, Applied:01 Jul 2001] The Commissioner may, by order in writing, exclude from a group that is constituted as mentioned in section 11E any of its members where –

(a) the business carried on by that member is classified under a different Australian and New Zealand Standard Industrial Classification Division code (as determined by the Australian Bureau of Statistics) than another member of the group; and

(b) the Commissioner is satisfied that the business carried on by that member is operated independently of the other members of the group.

(2B)  [Section 11I Subsection (2B) inserted by No. 36 of 2001, s. 6, Applied:01 Jul 2001] In being satisfied as to the matter referred to in subsection (2A)(b) , the Commissioner is to have regard to whether –

(a) transactions between the member and other members of the group are conducted on a commercial basis and charged for at commercial rates; and

(b) day-to-day administration of the business of the member is carried out separately from the day-to-day administration of the business of the other members; and

(c) services and resources provided between the member and other members of the group are provided on a commercial basis and charged for at commercial rates.

(3)  An order excluding members from a group shall be served on those members.

(4)  [Section 11I Subsection (4) omitted by No. 20 of 2000, s. 9, Applied:01 Jul 2000] .  .  .  .  .  .  .  .  

(5)  [Section 11I Subsection (5) amended by No. 36 of 2001, s. 6, Applied:01 Jul 2001] An order under subsection (1) or (2A) shall have effect on and from the date specified in the order which may be a date that is the date of the order or before the date of the order.

(6)  [Section 11I Subsection (6) inserted by No. 36 of 2001, s. 6, Applied:01 Jul 2001] An order under this section is not a statutory rule for the purposes of the Rules Publication Act 1953 .

11J.   Group members jointly and severally liable for payment

[Section 11J Inserted by No. 21 of 1990, s. 12 ]If a member of a group fails to pay any amount of pay-roll tax that the member is required to pay every other member of the group who paid or was liable to pay taxable wages during the financial year in which the pay-roll tax liability has incurred is liable jointly and severally to pay that amount to the Commissioner.

PART IV - Registration and Returns

12.   Registration

(1)  [Section 12 Subsection (1) amended by No. 42 of 1997, s. 10, Applied:01 Jul 1997] [Section 12 Subsection (1) amended by No. 91 of 1980, s. 6 ][Section 12 Subsection (1) amended by No. 64 of 1981, s. 6 ][Section 12 Subsection (1) amended by No. 45 of 1982, s. 6 ][Section 12 Subsection (1) amended by No. 96 of 1985, s. 6 ][Section 12 Subsection (1) amended by No. 50 of 1988, s. 10 ][Section 12 Subsection (1) substituted by No. 21 of 1990, s. 13 ][Section 12 Subsection (1) amended by No. 39 of 1992, s. 6 ][Section 12 Subsection (1) substituted by No. 20 of 2000, s. 10, Applied:01 Jul 2000] Where the Australian wages of an employer exceed –

(a) [Section 12 Subsection (1) amended by No. 36 of 2001, s. 7, Applied:01 Jul 2001] $83 333 in any month after June 2001 but before July 2002; or

(b) [Section 12 Subsection (1) amended by No. 36 of 2001, s. 7, Applied:01 Jul 2001] $84 167 in any month after June 2002 –

that employer must apply within 7 days after the close of that month to the Commissioner, in a form approved by the Commissioner, for registration as an employer under this Act.

(1A)  [Section 12 Subsection (1A) inserted by No. 21 of 1990, s. 13 ]On receipt of an application by an employer, the Commissioner shall register that employer as an employer under this Act.

(2)  The Commissioner may cancel the registration of a person as an employer if that person has ceased to be an employer paying wages at the rate referred to in subsection (1) .

(3)  A person who, immediately before the commencement of this Act, was the holder of a certificate in force under the regulations made under the Commonwealth Act to the effect that he was registered as an employer in respect of this State, is deemed to be registered as an employer under this Act.

(4)  A person who is deemed under subsection (3) to be registered as an employer and who is required, by a notice in writing served on him by the Commissioner, to apply to the Commissioner, within the time specified in the notice, for registration as an employer, ceases to be deemed to be so registered upon the expiration of that time.

(5)  [Section 12 Subsection (5) omitted by No. 21 of 1990, s. 13 ].  .  .  .  .  .  .  .  

(6)  [Section 12 Subsection (6) omitted by No. 21 of 1990, s. 13 ].  .  .  .  .  .  .  .  

13.   Returns by employer

(1)  [Section 13 Subsection (1) amended by No. 76 of 1997, s. 9, Applied:01 Jul 1998] [Section 13 Subsection (1) amended by No. 21 of 1990, s. 14 ]Every employer who is registered, or deemed to be registered, or required to apply for registration in accordance with the provisions of section 12 shall, within 7 days after the close of each month, furnish to the Commissioner, in a form approved by the Commissioner, a return relating to that month and shall specify in that return any taxable wages that were paid or payable by him during that month.

(2)  [Section 13 Subsection (2) omitted by No. 76 of 1997, s. 9, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

(3)  [Section 13 Subsection (3) omitted by No. 76 of 1997, s. 9, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

(3A)  [Section 13 Subsection (3A) amended by No. 76 of 1997, s. 9, Applied:01 Jul 1998] [Section 13 Subsection (3A) inserted by No. 65 of 1975, s. 6 ][Section 13 Subsection (3A) amended by No. 79 of 1984, s. 7 ]Notwithstanding compliance with subsection (1) , every employer shall, in place of the return required to be furnished under subsection (1) in respect of wages paid or payable for the period ending in June, furnish to the Commissioner a return relating to all wages paid or payable during that financial year.

(3B)  [Section 13 Subsection (3B) amended by No. 76 of 1997, s. 9, Applied:01 Jul 1998] [Section 13 Subsection (3B) inserted by No. 65 of 1975, s. 6 ]Where during any financial year an employer ceases to pay wages, notwithstanding subsection (1) the last return that he lodges shall have specified therein the taxable wages paid or payable by him from the commencement of the financial year until he ceased to pay wages.

(3C)  [Section 13 Subsection (3C) inserted by No. 65 of 1975, s. 6 ]Notwithstanding anything contained elsewhere in this Act, in calculating the tax to be paid in respect of a return submitted as provided by subsection (3A) or subsection (3B) , the Commissioner shall have regard to tax already paid in respect of the wages included in a return submitted in relation to the financial year other than the return submitted under subsection (3A) or subsection (3B) .

(4)  [Section 13 Subsection (4) omitted by No. 76 of 1997, s. 9, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

(5)  [Section 13 Subsection (5) omitted by No. 76 of 1997, s. 9, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

(6)  [Section 13 Subsection (6) added by No. 7 of 1976, s. 7 ][Section 13 Subsection (6) substituted by No. 21 of 1990, s. 14 ]Where an employer considers it is not reasonably practicable to calculate the value of any fringe benefits, the employer may request the Commissioner to agree to accept a return in which that value is calculated in accordance with subsection (7) .

(7)  [Section 13 Subsection (7) added by No. 21 of 1990, s. 14 ]Where the Commissioner is satisfied as to the reasonableness of a request made by an employer under subsection (6) , the Commissioner may agree –

(a) that a return under subsection (1) may include an estimate of the value of fringe benefits; or

(b) that a return under subsection (3A) may include the value of fringe benefits paid, payable or provided during the year ended 31st March preceding the month in respect of which the return was made.

(8)  [Section 13 Subsection (8) added by No. 21 of 1990, s. 14 ]The Commissioner may cancel an agreement under subsection (7) by notice in writing served on the employer.

14.   

[Section 14 Repealed by No. 76 of 1997, s. 10, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

15.   Further returns

In addition to any return required to be furnished by this Act, the Commissioner may, by notice in writing, call upon any employer or person to furnish to him, within the time specified in the notice, such return or such further or fuller return as the Commissioner requires whether on his own behalf or as an agent or a trustee.

16.   

[Section 16 Subsection (3) amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 16 Repealed by No. 76 of 1997, s. 11, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

PART V - Recovery of Tax

17.   Time for payment of tax

Subject to sections 20 and 21 , every employer liable to pay pay-roll tax shall pay the tax within the time within which he is required by or under section 13 to lodge the return of the wages in respect of which tax is payable.

18.   

[Section 18 Repealed by No. 76 of 1997, s. 13, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

19.   

[Section 19 Amended by No. 91 of 1980, s. 7 ][Section 19 Repealed by No. 76 of 1997, s. 13, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

20.   Employer leaving Australia

When the Commissioner has reason to believe that an employer may leave Australia before any tax becomes due and payable by him, the tax is due and payable on such date as the Commissioner fixes and specifies in a notice served on the employer.

21.   

[Section 21 Repealed by No. 76 of 1997, s. 14, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

22.   

[Section 22 Subsection (1) amended by No. 64 of 1976, s. 6 ][Section 22 Subsection (1) amended by No. 7 of 1976, s. 8 ][Section 22 Repealed by No. 76 of 1997, s. 14, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

23.   

[Section 23 Repealed by No. 76 of 1997, s. 14, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

24.   

[Section 24 Repealed by No. 76 of 1997, s. 14, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

25.   Liquidator to give notice

(1)  A person who is liquidator of any company which is being wound-up and which is, or on or after the day on which this Act commences has been, an employer registered or required to be registered under this Act, shall, within 14 days after he has become liquidator of that company, serve on the Commissioner notice in writing of his appointment as liquidator.

(2)  The Commissioner shall, as soon as practicable after receiving notice under subsection (1) , notify the liquidator of the amount which appears to the Commissioner to be sufficient to provide for any tax which then is or will thereafter become payable by the company.

(3)  The liquidator of a company –

(a) shall not without leave of the Commissioner part with any of the assets of the company until he has been notified under subsection (2) ;

(b) shall set aside, out of the assets available for the payment of the tax, assets to the value of the amount so notified, or the whole of the assets so available if they are of less than that value; and

(c) is, to the extent of the value of the assets which he is so required to set aside, liable as trustee to pay the tax.

(4)  [Section 25 Subsection (4) amended by No. 43 of 1991, s. 5 and Sched. 1 ]Subject to subsection (6) , if the liquidator of a company fails to comply with any provision of this section, or fails as trustee to pay the tax for which he is liable under subsection (3) , he is, to the extent of the value of the assets of which he has taken possession and which are, or were at any time, available to him for the payment of the tax, personally liable to pay the tax, and is guilty of an offence.

Penalty:  Fine not exceeding 50 penalty units.

(5)  Where more persons than one are appointed liquidators or required by law to carry out the winding-up of a company the obligations and liabilities attaching to a liquidator under this section are joint and several and, where any one of those persons has paid the tax due in respect of the company being wound-up, he shall be entitled to contribution under, and in accordance with the provisions of, section 30 .

(6)  Notwithstanding anything contained in this section, all costs, charges, and expenses which, in the opinion of the Commissioner, have been properly incurred by the liquidator in the winding-up of a company, including the remuneration of the liquidator, may be paid out of the assets of the company in priority to any tax payable in respect of the company.

(7)  [Section 25 Subsection (7) amended by No. 9 of 1982, s. 7 and Sched. 10 ]Nothing in this section –

(a) limits the liability of a liquidator under section 42 ; or

(b) [Section 25 Subsection (7) amended by No. 69 of 2000, s. 9, Applied:14 Nov 2000] [Section 25 Subsection (7) amended by No. 42 of 2001, Sched. 1, Applied:15 Jul 2001] .  .  .  .  .  .  .  .  

(8)  Any notice given by a liquidator under the Commonwealth Act of his appointment as a liquidator shall be deemed to be a notice of his appointment as a liquidator served on the Commissioner in accordance with subsection (1) .

26.   Agent for absentee principal winding-up business

(1)  Where an agent for a principal absent from this State has been required by the principal to wind-up the principal's business, he shall, before taking any steps to wind-up the business, notify the Commissioner of his intention to do so, and shall set aside such sum out of the assets of the principal as appears to the Commissioner to be sufficient to provide for any tax that becomes payable.

(2)  [Section 26 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ]An agent who fails to give notice to the Commissioner or fails to provide for payment of the tax as required by this section shall be personally liable for any tax that becomes payable in respect of the business of the principal, and is guilty of an offence.

Penalty:  Fine not exceeding 50 penalty units.

(3)  Any notice given by an agent for an absentee principal under the Commonwealth Act of his intention to wind-up the business of his principal shall be deemed to be a notice of his intention to do so served on the Commissioner in accordance with subsection (1) .

27.   

[Section 27 Repealed by No. 76 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

28.   

[Section 28 Repealed by No. 76 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

29.   

[Section 29 Repealed by No. 76 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

30.   

[Section 30 Repealed by No. 76 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

31.   

[Section 31 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 31 Repealed by No. 76 of 1997, s. 15, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

PART VI - .  .  .  .  .  .  .  .  

[Part VI Repealed by No. 76 of 1997, s. 16, Applied:01 Jul 1998]

32.   

[Section 32 Repealed by No. 76 of 1997, s. 16, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

33.   

[Section 33 Subsection (1) amended by No. 34 of 1974, s. 3 ][Section 33 Repealed by No. 76 of 1997, s. 16, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

34.   

[Section 34 Repealed by No. 76 of 1997, s. 16, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

PART VII - .  .  .  .  .  .  .  .  

[Part VII Repealed by No. 76 of 1997, s. 16, Applied:01 Jul 1998]

35.   

[Section 35 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 35 Repealed by No. 76 of 1997, s. 16, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

36.   

[Section 36 Subsection (1) amended by No. 7 of 1976, s. 9 ][Section 36 Repealed by No. 76 of 1997, s. 16, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

37.   

[Section 37 Amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 37 Repealed by No. 76 of 1997, s. 16, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

38.   

[Section 38 Repealed by No. 76 of 1997, s. 16, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

39.   

[Section 39 Repealed by No. 76 of 1997, s. 16, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

40.   

[Section 40 Amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 40 Amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 40 Repealed by No. 76 of 1997, s. 16, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

PART VIII - Miscellaneous

41.   Agents and trustees

[Section 41 Amended by No. 31 of 1989, s. 5 ]

(1)  The following provisions apply in respect of every agent or trustee:

(a) He is answerable as an employer for the doing of all such things as are required to be done by or under this Act or in respect of any payment of wages which is subject to pay-roll tax under this Act;

(b) He shall, in respect of any payment of wages which is subject to pay-roll tax under this Act, make the returns and is chargeable with pay-roll tax thereon, but in his representative capacity only, and each return shall, except as otherwise provided by this Act, be separate and distinct from any other;

(c) If he is an executor or administrator, the returns made by him shall be the same as far as practicable as the deceased person, if living, would have been liable to make;

(d) Where as an agent or a trustee he pays tax, he is by force of this section authorized to recover the amount so paid from the person on whose behalf he paid it, or to deduct it from any money in his hands belonging to that person;

(e) He is by force of this section authorized and required to retain from time to time out of any money which comes to him in his representative capacity so much as is sufficient to pay the tax;

(f) He is by force of this section personally liable for the tax payable if, after the Commissioner has required him to make a return, or while the tax remains unpaid, he, except with the written permission of the Commissioner, disposes of or parts with any fund or money which comes to him from or out of which tax could legally be paid, but he is not otherwise personally liable for the tax;

(g) He is by force of this section indemnified for all payments which he makes in pursuance of this Act or by the requirements of the Commissioner; and

(h) For the purpose of ensuring the payment of tax the Commissioner has the same remedies against attachable property of any kind vested in or under his control or management or in his possession, as the Commissioner would have against the property of any other person in respect of tax, and in as full and ample a manner.

(2)  [Section 41 Subsection (2) omitted by No. 21 of 1990, s. 15 ].  .  .  .  .  .  .  .  

(3)  [Section 41 Subsection (3) omitted by No. 21 of 1990, s. 15 ].  .  .  .  .  .  .  .  

(4)  [Section 41 Subsection (4) omitted by No. 21 of 1990, s. 15 ].  .  .  .  .  .  .  .  

(5)  [Section 41 Subsection (5) omitted by No. 21 of 1990, s. 15 ].  .  .  .  .  .  .  .  

(6)  [Section 41 Subsection (6) omitted by No. 21 of 1990, s. 15 ].  .  .  .  .  .  .  .  

42.   Person in receipt or control of money for absentee employer

With respect to every person who has the receipt, control, or disposal of money belonging to a person resident out of Australia who is liable to pay tax under this Act, the following provisions, subject to this Act, apply:

(a) He shall when required by the Commissioner pay the tax due and payable by the person on whose behalf he has the receipt, control, or disposal of money;

(b) Where he pays tax in accordance with paragraph (a) he is, by force of this section, authorized to recover the amount so paid from the person on whose behalf he paid it or to deduct it from any money in his hands belonging to that person;

(c) He is, by force of this section, authorized and required to retain from time to time out of any money which comes to him on behalf of the person resident out of Australia so much as is sufficient to pay the tax which is or will become due by that person;

(d) He is, by force of this section, personally liable for the tax payable by him on behalf of the person resident out of Australia after the tax becomes payable, or if, after the Commissioner has required him to pay the tax, he, except with the written permission of the Commissioner, disposes of or parts with any fund or money then in his possession, or which comes to him from or out of which the tax could legally be paid, but he is not otherwise personally liable for the tax; and

(e) He is, by force of this section, indemnified for all payments which he makes in pursuance of this Act or in accordance with the requirements of the Commissioner.

43.   

[Section 43 Subsection (1) amended by No. 43 of 1991, s. 5 and Sched. 1 ][Section 43 Repealed by No. 76 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

44.   

[Section 44 Subsection (7) amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 44 Repealed by No. 76 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

45.   

[Section 45 Subsection (2) amended by No. 9 of 1982, s. 7 and Sched. 10 ][Section 45 Repealed by No. 76 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

46.   

[Section 46 Amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 46 Repealed by No. 76 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

47.   

[Section 47 Subsection (1) amended by No. 29 of 1984, s. 3 and Sched. 1 ][Section 47 Repealed by No. 76 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

48.   

[Section 48 Amended by No. 99 of 1982, s. 3 and Sched. 2, Pt. II ][Section 48 Repealed by No. 76 of 1997, s. 17, Applied:01 Jul 1998] .  .  .  .  .  .  .  .  

49.   Regulations

(1)  The Governor may make regulations for or with respect to –

(a) the evidence that the Commissioner may require for the purpose of determining whether or not an employer was an employer for part only of a financial year or whether or not a notice under section 13 (2) , or a certificate under section 14 (1) , should be given;

(b) the signing of returns, applications, notices, statements, or forms by or on behalf of employers, the persons who may sign on behalf of employers, and deeming any return, application, notice, statement, or form signed on behalf of an employer to have been signed by the employer;

(c) the authentication of any certificate, notice, or other document issued for the purpose of this Act or any regulation;

(d) any activity for the purposes of section 10 (e) (iv) ;

(e) prescribing classes of contract under which payment for services performed or rendered are wages within the meaning of section 2 ;

(f) prescribing the value of meals or sustenance, or the use of premises or quarters, provided by an employer as consideration or part consideration for an employee's services.

(2)  [Section 49 Subsection (2) amended by No. 43 of 1991, s. 5 and Sched. 1 ]The regulations –

(a) may be so made as to have a different application according to such factors as may be specified in the regulations; and

(b) may impose a fine not exceeding 20 penalty units for any offence against the regulations.

SCHEDULE 1

[Schedule Added by No. 78 of 1977, s. 3 ][Schedule Repealed by No. 91 of 1980, s. 8 ]