Pay-Roll Tax Act 1971
Version No. 110
Pay-roll Tax Act 1971
No. 8154 of 1971
Version incorporating amendments as at 20 March 2007
table of provisions
SectionPage
1
SectionPage
Part I—Preliminary
1Short title and commencement
2Taxation Administration Act 1997
3Definitions
3ASuperannuation benefits relating to services performed before 1July 1997
3BSuperannuation benefits not readily related to particular employees or their periods of service
3CSupply of services in relation to performance of work
3D–3FRepealed21
Part II—Employment Agents
4Interpretation
5Employment agents deemed to be employers of service
providers
5AAgreement to reduce or avoid liability to pay-roll tax
Part III—Liability to Taxation
6Wages liable to tax
7Imposition of pay-roll tax on taxable wages
8Liability to pay tax
8AJoint and several liability of group members
8BTime for payment of tax
8CEmployer leaving Australia
9Taxable value of fringe benefits
9AGeneral exemption where two or more employers relatedetc.
9BDeduction from taxable wages
9CPay-roll tax paid under corresponding applied law
10Exemption from pay-roll tax
10ALocal government business entities
11Exemption for paid maternity or adoption leave
11AFinancial year and prescribed amount
11BAnnual adjustments
11CAdjustment of pay-roll tax when employer ceases to be an employer during financial year
Part IIIA—Repealed74
11D–11URepealed74
Part IV—Registration and Returns
12Registration
13Returns
13AInclusion of fringe benefits in returns etc.
14Repealed
15Further returns
16Repealed
Part V—Collection and Recovery of Tax
17-24Repealed
25Liquidator to give notice
26Agent for absentee principal winding-up business
27When tax not paid during lifetime
28Payment of tax by executors or administrators
29Recovery of tax paid on behalf of another person
30, 31Repealed
Part VA–VII—Repealed
32–40Repealed
Part VIII—Miscellaneous
41Repealed89
42Agents and trustees
43Person in receipt or control of money for absentee
44–49ARepealed91
50Regulations
______
SCHEDULES
SCHEDULE 1—Repealed
SCHEDULE 2
SCHEDULE 3–9—Repealed109
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
INDEX124
1
Version No. 110
Pay-roll Tax Act 1971
No. 8154 of 1971
Version incorporating amendments as at 20 March 2007
Long Title substituted by No. 40/1997 s.138(Sch. 2 item 11.1).
An Act to impose a tax on employers in respect of certain wages and for other purposes.
1
Pay-roll Tax Act 1971
No. 8154 of 1971
BE IT ENACTED by the Queen's Most Excellent Majesty by and with the advice and consent of the Legislative Council and the Legislative Assembly of Victoria in this present Parliament assembled and by the authority of the same as follows (that is to say):
Part I—Preliminary
1Short title and commencement
(1)This Act may be cited as the Pay-roll Tax Act 1971.
(2)This Act shall be deemed to have commenced upon the first day of September, One thousand nine hundred and seventy-one.
S. 2 amendedby Nos 8785 s.2, 9647 s.8, repealed by No. 65/1987 s.41, new s.2 inserted by No. 40/1997 s.138(Sch. 2 item 11.2).
2Taxation Administration Act 1997
This Act is to be read together with the Taxation Administration Act 1997 which provides for the administration and enforcement of this Act and other taxation laws.
3Definitions
s. 3
(1)In this Act, except in so far as the context or subject-matter otherwise indicates or requires—
agent includes every person who in Victoria, for or on behalf of another person outside Victoria, 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;
S. 3(1) def. of business inserted by No. 65/1987 s.42(1).
business, in section 9A, includes—
(a)a trade or profession; and
(b)any other activity carried on for fee, gain or reward; and
(c)the activity—
(i)of employing one or more persons if that person performs, or those persons perform, duties for or in connection with another business; or
(ii)of holding any money or property used for or in connection with another business;
S. 3(1) def. of coastal waters of Victoria inserted by No. 48/1998 s.6.
coastal waters of Victoria has the same meaning as coastal waters of the State has in relation to Victoria in the Coastal Waters (State Powers) Act 1980 of the Commonwealth;
S. 3(1) def. of Commiss-ioner substituted by No. 40/1997 s.138(Sch. 2 item 11.3(a)).
Commissioner means Commissioner of State Revenue under the Taxation Administration Act 1997;
Commonwealth Act means the Pay-roll Tax Assessment Act 1941, as subsequently amended, of the Commonwealth;
company includes all bodies and associations (corporate and unincorporate) and partnerships;
S. 3(1) def. of corporation inserted by No. 8594 s.2(1)(a), substituted by No. 9699 s.23, amended by Nos 119/1994 s.33(7)(a)(i), 44/2001 s.3(Sch. item89.1).
corporation has the same meaning as in section9 of the Corporations Act;
s. 3
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;
S. 3(1) def. of employer amended by No. 10009 s.5(a), substituted by No. 103/1998 s.12(1)(a), amendedby No. 46/2004 s.22(a).
employer means any person who pays or is liable to pay any wages and includes—
(a)the Crown in right of the State of Victoria;
(b)any person deemed to be an employer by or under section 3C or Part II;
(c)any public, local or municipal body or authority constituted under the law of the Commonwealth or a State unless, being an authority constituted under the law of the Commonwealth, it is immune from the operation of this Act;
S. 3(1) def. of employment agency contract inserted by No. 103/1998 s.12(1)(b), amendedby No. 46/2004 s.22(b).
employment agency contract has the meaning given in section 4(1);
S. 3(1) def. of employment agent insertedby No. 103/1998 s.12(1)(b), amendedby No. 46/2004 s.22(b).
employment agent has the meaning given in section 4(1);
s. 3
financial year means the period commencing on the 1st September, 1971, and ending on the 30th of June, 1972 and each year thereafter commencing on the first day of July;
S. 3(1) def. of foreign wages inserted by No. 8785 s.3(1)(a).
foreign wagesmeans wages that are not taxable wages and are not interstate wages;
S. 3(1) def. of fringe benefit inserted by No. 9/1993 s.4(1)(a).
fringe benefit has the same meaning as in the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth as amended and in force for the time being 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 not to be a fringe benefit for the purposes of this definition;
S. 3(1) def. of GST inserted by No. 6/2000 s.12.
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 Taxation Reform (Consequential Provisions) Act 2000 by a person that is a State entity within the meaning of that Act;
S. 3(1) def. of interstate wages inserted by No. 8785 s.3(1)(a).
interstate wages means wages that are taxable wages within the meaning of a corresponding law;
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;
s. 3
month means the month of January, February, March, April, May, June, July, August, September, October, November or December;
S. 3(1) def. of motor vehicle inserted by No. 9837 s.3(a), amended by No. 127/1986 s.102(Sch.4 item 22.1), repealed by No. 104/1993 s.28.
*****
pay-roll tax means pay-roll tax chargeable under section 7;
person includes a body or association (corporate or unincorporate) and a partnership;
S. 3(1) def. of return period inserted by No. 8785 s.3(1)(b).
return period in relation to an employer means a period relating to which that employer is required to furnish a return under this Act;
S. 3(1) def. of super-annuation benefit inserted by No. 49/1997 s.5(1).
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
s. 3
(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;
S. 3(1) def. of tax amended by No. 9647 s.9, repealedby No. 40/1997 s.138(Sch. 2 item 11.3(b)).
*****
taxable wages means wages that, under section6, are liable to pay-roll tax;
S. 3(1) def. of trustee substituted by No. 40/1997 s.138(Sch. 2 item 11.3(c)).
trustee includes—
(a)a person who is a trustee under an implied or constructive trust;
(b)in relation to a deceased person, an executor of the will, or an administrator of the estate, of the deceased person;
(c)a receiver or manager of the property of a company, or a liquidator of a company for the purpose of its winding up;
s. 3
(d)a receiver, guardian, committee or manager of the property of a person under a legal or other disability;
(e)a person having possession, control or management of a business or property of a person who is under a legal or other disability;
(f)any person acting in a fiduciary capacity;
S. 3(1) def. of Victoria inserted by No. 48/1998 s.6.
Victoria includes the coastal waters of Victoria;
S. 3(1) def. of voting share inserted by No. 8594 s.2(1)(b), substituted by No. 9699 s.23, amended by Nos 119/1994 s.33(7)(a)(ii), 44/2001 s.3(Sch. item89.1).
voting share has the same meaning as in section 9 of the Corporations Act;
S. 3(1) def. of wages amended by Nos 8785 s.3(1)(c), 9440 s.2(a)(i)(ii), 9647 s.2, 9837 s.3(b)(i)(ii), 10009 ss4(1) 5(b)(i)(ii), 9/1993 s.4(1)(b)
(i)–(iii), 101/1995 s.34(1), 48/1998
s. 7(a)(b), 103/1998 s.12(2)(a)(b), 48/2001 ss10(a), 11(1), 46/2004 s.22(c)(d).
wages means any wages, remuneration, salary, commission, bonuses 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 or to or in relation to any person deemed by or under section 3C or Part II to be an employee and, without limiting the generality of the foregoing, includes—
(a)any amount paid or payable by way of remuneration to a person holding an office under the Crown in right of the State of Victoria or in the service of the Crown in right of the State of Victoria;
s. 3
(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 deemed to be wages by or under section 3C or Part II;
(c)any amount paid or payable by a company by way of remuneration to or in relation to a director or member of the governing body of that company;
(ca)wages, remuneration, salary, commission, bonuses or allowances paid or payable whether in cash or in kind to or in relation to an employee by any person acting for or in concert or under an arrangement or understanding whether formal or informal and whether expressed or implied with the employer;
(d)any amount paid or payable by way of commission to an insurance or time-payment canvasser or collector; and
s. 3
(e)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 section27A 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 SubdivisionAA of Division 2 of Part III of that Act if the whole of the eligible termination payment had been paid to the employee.
S. 3(1A) inserted by No. 49/1997 s.5(2).
(1A)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 aparagraph of the definition of wages in subsection (1), an amount paid or payable in the circumstances referred to in that paragraph constitutes wages.
S. 3(2) amended by No. 10009 s.4(2)(a)–(d), substituted by No. 9/1993 s.4(2), amended by No. 49/1997 s.6(1).
(2)For the purposes of this Act, a reference to wages includes a reference to fringe benefits, but does not include benefits that are exempt benefits for the purposes of the Fringe Benefits Tax Assessment Act 1986 of the Commonwealth as amended and in force for the time being (other than deposits to a Superannuation Holding Accounts Reserve within the meaning of the Small Superannuation Accounts Act 1995 of the Commonwealth), even though those exempt benefits would, apart from this subsection, be treated as wages for the purposes of this Act.
S. 3(2A) inserted by No. 8594 s.2(2).
(2A)For the purposes of this Act, a reference to wages 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.
s. 3
S. 3(2AB) inserted by No. 14/1991 s.3, substituted by No. 49/1997 s.6(2).
(2AB)For the purposes of this Act, a reference to wages 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.
S. 3(2AC) inserted by No. 49/1997 s.6(2).
(2AC)If an employer had paid money on or after 30April 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.
S. 3(2B) inserted by No. 9440 s.2(b), amended by Nos 9837 s.3(c), 9/1993 s.4(3).
(2B)For the purposes of this Act any wages, remuneration, salary, commission, bonuses or allowances referred to in paragraph (ca) in the interpretation of wages shall be deemed to be paid or payable by the employer.
S. 3(2C) inserted by No. 9440 s.2(b).
(2C)A reference in this Act to wages paid or payable by the employer includes wages which are deemed to be paid or payable by the employer.
S. 3(2D) inserted by No. 9440 s.2(b), amendedby No.71/2004 s.37.
(2D)A reference in this Act to wages paid or payable by a related person or associate in a group includes wages which would be deemed to be paid or payable by a related person or an associate if the related person or associate were the employer of the employee to whom they were paid.
S. 3(2E) inserted by No. 9837 s.3(d), amended by No. 9/1993 s.4(3).
(2E)In this Act in relation to wages, remuneration, salary, commission, bonuses or allowances paid includes provided conferred and assigned and pay and payable have corresponding meanings.
s. 3
S. 3(2F) inserted by No. 101/1995 s. 34(2), repealed by No. 48/2001 s.10(b).
*****
S. 3(2G) inserted by No. 101/1995 s. 34(2).
(2G)In the definition of wages in subsection (1)—
annual leave has the same meaning as in section 26AC of the Income Tax Assessment Act 1936 of the Commonwealth;
long service leave has the same meaning as in section 26AD of the Income Tax Assessment Act 1936 of the Commonwealth.
(3)For the purposes of this Act, the Australian Capital Territory (including the JervisBayTerritory) and the Northern Territory of Australia are together deemed to be a State of the Commonwealth.
S. 3(4) repealed by No. 86/1997 s.10(a).
*****
S. 3(5) inserted by No. 8594 s.2(1)(c), amended by No. 9699 s.23, repealed by No. 65/1987 s.42(2), news.3(5) inserted by No. 49/1997 s.6(3).
(5)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[1].
S. 3(6) inserted by No. 8594 s.2(1)(c), amended by No. 9699 s.23, repealed by No. 65/1987 s.42(2).
*****
s. 3
S. 3(7) inserted by No. 8785 s.3(2), substituted by No. 8949 s.2.
(7)Where, for the purposes of this Act, it is necessary—
(a)to reduce an amount by $2 for each $3 by which another amount exceeds another amount or a certain proportion of a third amount;
(b)to calculate the proportion that one amount bears to another amount; or
(c)to calculate an amount in accordance with a formula—
and, but for this subsection, one or more of those amounts or an amount included in the formula would be amounts of dollars and cents—the cents shall be disregarded.
S. 3A insertedby No. 9837 s.4(1), repealed by No. 9/1993 s.4(4), news.3A insertedby No. 49/1997 s.7.
3ASuperannuation benefits relating to services performed before 1 July 1997
s. 3A
(1)Money paid by an employer on or after 1 July 1997 as a superannuation benefit that is alleged by the employer to be paid in respect of services performed or rendered by an employee before that day, must 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 must show the manner of calculation of the 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.
S. 3B insertedby No. 9837 s.4(1), amended by Nos 10009 s.6, 104/1986 s.122(Sch. item 2), repealed by No. 9/1993 s.4(4), news.3B inserted by No. 49/1997 s.7.
3BSuperannuation benefits not readily related to particular employees or their periods of service
s. 3B
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 3A, 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.
S. 3C insertedby No. 10009 s.7.
3CSupply of services in relation to performance of work
(1)For the purposes of this section, a reference to a relevant contract in relation to a financial year is a reference to a contract under which a person during that financial year, in the course of a business carried on by him—
(a)supplies to another person services for or in relation to the performance of work;
(b)has supplied to him the services of persons for or in relation to the performance of work; or
(c)gives out goods to natural persons for work to be performed by those persons in respect of those goods and for re-supply of the goods to the first-mentioned person or, where that person is a member of a group within the meaning of section 9A, to another member of that group—
but does not include a reference to a contract of service or a contract under which a person during a financial year in the course of a business carried on by him—
(d)has supplied to him 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 second-mentioned person;