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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Payroll Tax (Nexus) Amendment
Bill 2010
A BILL FOR
An Act to amend the Payroll Tax Act 2009 and to make a related
amendment to the Taxation Administration Act 1996.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Payroll Tax
Act 2009
4 Amendment of section
3—Interpretation
5 Substitution of sections 10 and
11
10 What are taxable wages
11 Wages
that are taxable in this jurisdiction
11A Jurisdiction
in which employee is based
11B Jurisdiction in which
employer is based
11C Place and date of payment of
wages
6 Amendment of section 13—What are wages?
7 Amendment
of section 24—Inclusion of shares and options granted to directors as
wages
8 Repeal of section 25
9 Amendment of section 26—Place where
wages are payable
10 Amendment of section 40—Amounts taken to be
wages
11 Insertion of Part 4 Division 9
Division 9—Services outside Australia
66A Wages
paid or payable for or in relation to services performed in other
countries
12 Amendment of Schedule 3—Repeal and transitional
provisions
Schedule 1—Related amendment and transitional
provisions
Part 1—Amendment of Taxation Administration
Act 1996
1 Amendment of section 4—Meaning of taxation
laws
Part 2—Transitional
provisions
2 Transitional provisions—taxable
wages
3 Transitional provisions—taxation administration
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Payroll Tax (Nexus) Amendment
Act 2010.
This Act will be taken to have come into operation on
1 July 2009.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Payroll Tax
Act 2009
4—Amendment of
section 3—Interpretation
(1) Section 3—before the definition of agent
insert:
ABN means the ABN (Australian Business Number) for an entity
within the meaning of the A New Tax System (Australian Business Number)
Act 1999 of the Commonwealth;
(2) Section 3—after the definition of Australia
insert:
Australian jurisdiction means a State or a
Territory;
(3) Section 3—after the definition of GST
insert:
instrument includes a cheque, bill of exchange, promissory
note, money order or a postal order issued by a post office;
(4) Section 3—after the definition of perform
insert:
registered business address means an address for service of
notices under the A New Tax System (Australian Business Number)
Act 1999 of the Commonwealth on an entity that has an ABN, as shown in
the Australian Business Register kept under that Act;
5—Substitution of
sections 10 and 11
Sections 10 and 11—delete the sections and substitute:
10—What are taxable wages
(1) For the purposes of this Act, taxable wages are wages
that are taxable in this jurisdiction.
(2) However, exempt wages are not taxable wages.
11—Wages that are taxable in this
jurisdiction
(1) For the purposes of this Act, wages are taxable in this jurisdiction
if—
(a) the wages are paid or payable by an employer for or in relation to
services performed by an employee wholly in this jurisdiction; or
(b) the wages are paid or payable by an employer for or in relation to
services performed by an employee in 2 or more Australian jurisdictions, or
partly in 1 or more Australian jurisdictions and partly outside all
Australian jurisdictions, and—
(i) the employee is based in this jurisdiction; or
(ii) the employer is based in this jurisdiction (in a case where the
employee is not based in an Australian jurisdiction); or
(iii) the wages are paid or payable in this jurisdiction (in a case where
both the employee and the employer are not based in an Australian jurisdiction);
or
(iv) the wages are paid or payable for services performed mainly in this
jurisdiction (in a case where both the employee and the employer are not based
in an Australian jurisdiction and the wages are not paid or payable in an
Australian jurisdiction); or
(c) the wages are paid or payable by an employer for or in relation to
services performed by an employee wholly outside all Australian jurisdictions
and are paid or payable in this jurisdiction.
Note—
Section 66A provides an exemption for wages paid or payable for
services performed wholly in 1 or more other countries for a continuous
period of more than 6 months.
(2) The question of whether wages are taxable in this jurisdiction is to
be determined by reference only to the services performed by the employee in
respect of the employer during the month in which the wages are paid or payable,
subject to this section.
(3) Any wages paid or payable by an employer in respect of an employee in
a particular month are taken to be paid or payable for or in relation to the
services performed by the employee in respect of the employer during that
month.
Note—
For example, if wages paid in a month are paid to an employee for services
performed over several months, the question of whether the wages are taxable in
this jurisdiction is to be determined by reference only to services performed by
the employee in the month in which the wages are paid. The services performed in
previous months are disregarded. (The services performed in previous months will
be relevant to the question of whether wages paid in those previous months are
taxable in this jurisdiction.)
(4) If no services are performed by an employee in respect of an employer
during the month in which wages are paid or payable to or in relation to the
employee—
(a) the question of whether the wages are taxable in this jurisdiction is
to be determined by reference only to the services performed by the employee in
respect of the employer during the most recent prior month in which the employee
performed services in respect of the employer; and
(b) the wages are taken to be paid or payable for or in relation to the
services performed by the employee in respect of the employer during that most
recent prior month.
(5) If no services were performed by an employee in respect of an employer
during the month in which wages are paid or payable to or in relation to the
employee or in any prior month—
(a) the wages are taken to be paid or payable for or in relation to
services performed by the employee in the month in which the wages are paid or
payable; and
(b) the services are taken to have been performed at a place or places
where it may be reasonably expected that the services of the employee in respect
of the employer will be performed.
(6) All amounts of wages paid or payable in the same month by the same
employer in respect of the same employee are to be aggregated for the purposes
of determining whether they are taxable in this jurisdiction (as if they were
paid or payable for all services performed by the employee in the month in which
the wages are paid or payable, or the most recent prior month, as the case
requires).
Note—
For example, if 1 amount of wages is paid by an employer in a
particular month for services performed in this jurisdiction, and another amount
of wages is paid by the same employer in the same month for services performed
by the same employee in another Australian jurisdiction, the wages paid are to
be aggregated (as if they were paid for all services performed by the employee
in that month). Accordingly, subsection (1)(b) would be applied for the
purpose of determining whether the wages are taxable in this
jurisdiction.
(7) If wages are paid in a different month from the month in which they
are payable, the question of whether the wages are taxable in this jurisdiction
is to be determined by reference to the earlier of the relevant
months.
11A—Jurisdiction in which employee is
based
(1) For the purposes of this Act, the jurisdiction in which an employee is
based is the jurisdiction in which the employee’s principal place of
residence is located.
(2) The jurisdiction in which an employee is based is to be determined by
reference to the state of affairs existing during the month in which the
relevant wages are paid or payable.
(3) If more than 1 jurisdiction would qualify as the jurisdiction in
which an employee is based during a month, the jurisdiction in which the
employee is based is to be determined by reference to the state of affairs
existing on the last day of that month.
(4) An employee who does not have a principal place of residence is taken,
for the purposes of this Act, to be an employee who is not based in an
Australian jurisdiction.
(5) In the case of wages paid or payable to a corporate employee, the
jurisdiction in which the employee is based is to be determined in accordance
with section 11B instead of this section (as if a reference in
section 11B to an employer were a reference to an employee).
(6) In this section, a corporate employee is a company that
is taken to be an employee under section 34 or 39 or a company to whom a
payment is made that is taken to be wages payable to an employee under
section 42 or 47.
11B—Jurisdiction in which employer is
based
(1) For the purposes of this Act, the jurisdiction in which an employer is
based is—
(a) the jurisdiction in which the employer’s registered business
address is located (if the employer has an ABN); or
(b) the jurisdiction in which the employer’s principal place of
business is located (in any other case).
(2) If wages are paid or payable in connection with a business carried on
by an employer under a trust, the employer’s registered business address
is the registered business address of the trust or, if the trust does not have
an ABN, the registered business address of the trustee of the trust.
(3) If an employer has registered business addresses located in different
jurisdictions at the same point in time, the jurisdiction in which the employer
is based at that point in time is the jurisdiction in which the employer’s
principal place of business is located.
(4) The jurisdiction in which an employer is based is to be determined by
reference to the state of affairs existing during the month in which the
relevant wages are paid or payable.
(5) If more than 1 jurisdiction would qualify as the jurisdiction in
which an employer is based during a month, the jurisdiction in which the
employer is based is to be determined by reference to the state of affairs
existing on the last day of that month.
(6) An employer who has neither a registered business address nor a
principal place of business is taken, for the purposes of this Act, to be an
employer who is not based in an Australian jurisdiction.
11C—Place and date of payment of
wages
(1) For the purposes of this Act, wages are taken to have been paid at a
place if, for the purpose of the payment of those wages—
(a) an instrument is sent or given or an amount is transferred by an
employer to a person or a person’s agent at that place; or
(b) an instruction is given by an employer for the crediting of an amount
to the account of a person or a person’s agent at that place.
(2) The wages are taken to have been paid on the date that the instrument
was sent or given, the amount was transferred or the account credited in
accordance with the instruction (as the case requires).
(3) Wages are taken to be payable at the place at which they are paid,
subject to this section.
(4) Wages that are not paid by the end of the month in which they are
payable are taken to be payable at—
(a) the place where wages were last paid by the employer to the employee;
or
(b) if wages have not previously been paid by the employer to the
employee—the place where the employee last performed services in respect
of the employer before the wages became payable.
(5) If wages paid or payable in the same month by the same employer in
respect of the same employee are paid or payable in more than 1 Australian
jurisdiction, the wages paid or payable in that month are taken to be paid or
payable in the Australian jurisdiction in which the highest proportion of the
wages are paid or payable.
Note—
Section 11 requires all wages paid or payable in the same month by the same
employer in respect of the same employee to be aggregated for the purpose of
determining whether the wages are taxable in this jurisdiction. The above
provision ensures only 1 Australian jurisdiction can be considered to be
the jurisdiction in which the wages are paid or payable.
6—Amendment of
section 13—What are wages?
Section 13—after subsection (2) insert:
(2a) This Act applies in respect of wages referred to in
subsection (1)(a) to (e) that are paid or payable to or in relation to
a person who is not an employee in the same way as it applies to wages paid or
payable to an employee (as if a reference in this Act to an employee included a
reference to any such person).
7—Amendment of
section 24—Inclusion of shares and options granted to directors as
wages
(1) Section 24(3)—at the foot of subsection (3)
insert:
Note—
Section 13 provides that a reference to an employee in this Act includes a
reference to any person to whom any amount that is treated as wages under this
Act is paid or payable. See also section 11, which deems the wages to be
paid or payable for services performed.
(2) Section 24(4)—delete subsection (4)
Section 25—delete the section
9—Amendment of
section 26—Place where wages are payable
Section 26(2)—delete the note at the foot of subsection (2) and
substitute:
Note—
The place where wages are paid or payable is sometimes relevant to
determining whether the wages are liable to payroll tax under this Act. See
section 11.
10—Amendment of
section 40—Amounts taken to be wages
Section 40(2)—after "(other than under Division 4 or Division 5
of that Part or section 50)" insert:
or under Part 3 of Schedule 2 (other than
clause 17)
11—Insertion of
Part 4 Division 9
After section 66 insert:
Division 9—Services outside
Australia
66A—Wages paid or payable for or in relation to
services performed in other countries
Wages are exempt wages if they are paid or payable for or in relation to
services performed by an employee wholly in 1 or more other countries for a
continuous period of more than 6 months beginning on the day on which wages
were first paid or payable to that employee for the services so
performed.
12—Amendment of
Schedule 3—Repeal and transitional provisions
(1) Schedule 3, clause 3(1)—after "this Act" insert:
or any Act amending this Act
(2) Schedule 3, clause 3(4)—after "this Act" insert:
or any Act amending this Act
Schedule 1—Related
amendment and transitional provisions
Part 1—Amendment of Taxation Administration
Act 1996
1—Amendment of
section 4—Meaning of taxation laws
Section 4(e)—delete "Pay-roll Tax Act 1971" and
substitute:
Part 2—Transitional provisions
2—Transitional
provisions—taxable wages
(1) In this clause—
principal Act means the Payroll Tax
Act 2009.
(2) For the purposes of this clause, an "expired month" is a month
occurring after June 2009 that ended before the date of assent of this
Act.
(3) The amendments made to the principal Act by this Act apply in respect
of taxable wages that are paid or payable on or after
1 July 2009.
(4) The amendments made to the principal Act by this Act are to be applied
for the purpose of determining the correct amount of payroll tax (within the
meaning of section 82) payable by an employer in respect of the financial
year commencing on 1 July 2009 (including in respect of expired
months).
(5) However, section 9 of the principal Act continues to apply in
respect of an expired month as if the amendments made to the principal Act by
this Act had not been made.
3—Transitional
provisions—taxation administration
The Pay-roll Tax Act 1971 will continue to be a taxation law
for the purposes of the Taxation Administration Act 1996 despite its
repeal and despite the enactment of clause 1 of this Schedule.