Western Australian Numbered Acts Western Australian Numbered Acts In a pay-roll tax Act,
unless the contrary intention appears —
"actuary" means a Fellow or an Accredited Member
of the Institute of Actuaries of Australia;
"agent" includes —
(a) a
person who in Western Australia, for or on behalf of another person outside
Western Australia, holds or has the management or control of the business of
that other person; and
(b) a
person on whom notice of a declaration under section 43(9) has been
served;
"allowable deduction "means —
(a) in
relation to a group — the amount calculated in accordance with
section 18;
(b) in
relation to an interstate non-group employer — the amount
calculated in accordance with section 14; or
(c) in
relation to a local non-group employer — the amount calculated
in accordance with section 12;
"annual threshold amount", in relation to a
financial year, means the annual threshold amount fixed for the financial year
under section 8(1);
"appropriate rate", in relation to a particular
kind of employer and an assessment year or return period, means the rate or
rates of pay-roll tax fixed in relation to employers of that kind for the year
or the return period by the Pay-roll Tax Act 2002 ;
"assessment year", in relation to pay-roll tax,
means the financial year for which the pay-roll tax is, or is to be, assessed;
"Australian superannuation scheme" means a
superannuation scheme that —
(a) was
established in Australia, or has any asset situated in Australia; and
(b) has
its central management and control in Australia;
"business", for the purposes of Part 4,
includes —
(b) any
other activity carried on for fee, gain or reward; and
(c) the
activity, carried on by an employer, of employing one or more persons where
that person performs or those persons perform duties for or in connection with
another business;
"charitable body or organisation" means a body or
organisation established or carried on for charitable purposes
except —
(a) a
body or organisation whose sole or principal purpose is the provision of
tertiary education; or
(b) a
college or other vocational education and training institution under the
Vocational Education and Training Act 1996 ;
"company" includes all bodies and associations
(corporate and unincorporate) and partnerships;
"controlling interest", in relation to a business,
has the definition given in section 33;
"Corporations Act" means the
Corporations Act 2001 of the Commonwealth;
"corporation" has the meaning given by
section 57A of the Corporations Act;
"corresponding law", in relation to another State,
means a law in force in the 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 Pay-roll Tax Assessment Act 1941 of
the Commonwealth;
"defined superannuation benefit" means a benefit
under a superannuation scheme that is defined, wholly or in part, by reference
to either or both of the following —
(a) the
amount of the participant’s salary —
(i)
at a particular date, being the date of the termination
of the participant’s employment, the date of the participant’s
retirement, or an earlier date; or
(ii)
averaged over a period ending on any such date;
(b) a
stated amount;
"designated group employer", in relation to a
group, means the member of the group designated under section 39;
"DGE" means designated group employer;
"employer" means any person who pays or is liable
to pay any wages, and includes the Crown in right of the State of Western
Australia and an employment agent;
"employment agent" means a person (the agent) who
procures the services of another person (the worker) for a third person (the
client) under an arrangement where —
(a) the
worker does not become the employee of either the agent or the client, but
does carry out duties of a similar nature to those of an employee; and
(b)
remuneration is paid directly or indirectly by the agent to the worker or to
some other person for the services provided by the worker;
"exempt", in relation to wages, means exempt from
pay-roll tax under section 40;
"FBTA Act" means the
Fringe Benefits Tax Assessment Act 1986 of the Commonwealth;
"fringe benefit" means anything that is a fringe
benefit under the FBTA Act except a benefit prescribed not to be a fringe
benefit for the purposes of this definition;
"group" means a group constituted under Part 4;
"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 the State Entities (Payments) Act 1999 by a person that is a
State entity as defined in that Act;
"individual superannuation guarantee shortfall"
has the same definition as it has in the
Superannuation Guarantee (Administration) Act 1992 of the Commonwealth;
"interstate non-group employer" means a non-group
employer who pays or is liable to pay WA taxable wages during all or part of
an assessment year, and who also pays or is liable to pay
interstate taxable wages during all or part of the assessment year, whether or
not the interstate taxable wages are paid or payable in respect of the same
part of the assessment year as the WA taxable wages;
"interstate taxable wages" means wages that are
subject to pay-roll tax under a corresponding law;
"local non-group employer" means a
non-group employer who pays or is liable to pay WA taxable wages during part
or all of an assessment year, but is not liable to pay any
interstate taxable wages during the assessment year;
"monthly threshold amount", in relation to a
financial year, means the amount fixed as the monthly threshold amount for the
financial year under section 8(2);
"nominated deduction" means —
(a) in
relation to a group — the amount nominated for the group under
section 19;
(b) in
relation to an interstate non-group employer — the amount
nominated for the employer under section 15 ;
"non-group employer" means an employer who is not
a member of a group under Part 4;
"non-profit organisation" means body corporate,
society or association formed otherwise than for the purpose of profit or gain
to individual members of the body, society or association;
" ‘otherwise deductible’ rule" has the
meaning given in clause 7(3);
"participant", in relation to a
superannuation scheme, means a person in respect of whom the fund provides for
benefits that are, or are to be, funded to any extent by the employer’s
contributions;
"pay-roll tax" means the tax imposed under the
Pay-roll Tax Act 2002 ;
"pay-roll tax Act" means —
(a) the
Pay-roll Tax Act 2002 ;
(b) the
Pay-roll Tax Assessment Act 2002 ; or
(c) the
Taxation Administration Act 2003 ;
"provide", in relation to a fringe benefit or a
specified taxable benefit, has the same definition as in section 136 of
the FBTA Act;
"registered" means registered as an employer under
section 25;
"regulated superannuation fund” has the same
definition as in the Superannuation Industry (Supervision) Act 1993 of
the Commonwealth;
"related corporation", in relation to a second
corporation, means a corporation that is related to the second corporation
within the meaning of section 50 of the Corporations Act;
"remote location" means a location that is
not —
(a) in
an eligible urban area within the meaning of section 140 of the FBTA Act;
or
(b)
adjacent to an eligible urban area within the meaning of that section;
"return" means a return lodged under this Act;
"return period", in relation to an employer,
means —
(a) a
month;
(b) if
the employer is required to lodge an annual return under section 27(1)
— an assessment year; or
(c) if
the employer is exempt under section 29 from lodging monthly returns, but no
alternative return period is specified in the notice of exemption —
an assessment year;
"smaller group", for the purposes of
section 36, has the meaning given in that section;
"specified exempt allowance" means an allowance
prescribed under section 45(2)(c);
"specified taxable benefit" means a benefit
prescribed under section 45(2)(b);
"State" means a State or a Territory;
"superannuation fund" means any fund carried
on —
(a) for
the purposes of a superannuation scheme; or
(b) to
provide retirement savings accounts within the meaning of the
Retirement Savings Accounts Act 1997 of the Commonwealth,
and includes the
Superannuation Holding Accounts Reserve established by the
Small Superannuation Accounts Act 1995 of the Commonwealth;
"superannuation guarantee charge" means a charge
imposed by the Superannuation Guarantee Charge Act 1992 of the
Commonwealth, except that it does not include additional superannuation
guarantee charge under Part 7 of the Superannuation Guarantee
(Administration) Act 1992 of the Commonwealth;
"superannuation scheme" includes a provident or
retirement fund or scheme;
"taxes", for the purposes of section 42 or 43, has
the meaning given in the respective section;
"tax-reducing arrangement” means any
arrangement, transaction or agreement, whether in writing or
otherwise —
(a)
under which a natural person (the worker) carries out, for or on behalf of a
second person, services for which any payment is made to a third person
related or connected to the worker; and
(b)
which has the effect of reducing or avoiding the liability of any person to
the assessment, imposition, or payment of pay-roll tax (whether or not that is
the only effect of the agreement);
"Territory" means the Australian Capital
Territory, the Jervis Bay Territory or the Northern Territory;
"trustee", in addition to every person appointed
or constituted trustee by act of parties, by order or declaration of a court
or by operation of law, includes —
(a) an
executor or administrator, guardian, committee, receiver or liquidator; and
(b)
every person having or taking upon himself or herself the administration or
control of any real or personal property affected by any express or implied
trust, or acting in any fiduciary capacity, or having the possession, control
or management of any real or personal property of a person under any legal or
other disability;
"unfunded public sector superannuation scheme"
means a public sector superannuation scheme within the meaning of the
Superannuation Industry (Supervision) Act 1993 of the Commonwealth,
except one that is funded in advance in accordance with actuarial advice at a
level that is reasonably expected by the actuary to be adequate to provide for
present and prospective liabilities in respect of benefits under the scheme;
"value" —
(a) in
relation to a beneficial interest in a discretionary trust, has the meaning
given in section 34;
(b) in
relation to a fringe benefit, has the meaning given in clause 7;
(c) in
relation to a specified taxable benefit, has the meaning given in
clause 6;
(d) in
relation to wages in respect of a supply on which GST is payable, has the
meaning given in clause 3;
(e) in
relation to wages paid in kind, has the meaning given in clause 6;
"voting share" has the definition given by
section 9 of the Corporations Act;
"wages" has the definition given in clause 2;
"WA taxable wages" means wages that are taxable in
Western Australia under section 5(2);
"work-related benefit" means a benefit that is
provided to an employee in the course of carrying out the duties of his or her
employment and for the purpose of enabling the employee to carry out those
duties.
2. Wages — meaning
(1) In a
pay-roll tax Act, unless the contrary intention appears —
(a)
wages, salary, commission, bonuses or allowances paid or payable to or in
relation to an employee as an employee, whether paid or payable at piece work
rates or otherwise, and whether paid or payable in cash or in kind;
(b)
wages, salary, commission, bonuses or allowances that are paid or payable, in
cash or in kind, to or in relation to an employee by someone acting for the
employer, or acting in concert or under an arrangement or undertaking, whether
formal or informal and whether express or implied, with the employer;
(c) an
amount paid or payable by way of remuneration to a person holding office under
the Crown in right of the State of Western Australia or in the service of the
Crown in right of the State of Western Australia;
(d) the
amount of any superannuation benefit that is taken by clause 8 to be paid
by the employer;
(e) an
amount paid or payable under a class of contracts prescribed under
section 45(2)(g) to the extent to which the payment is attributable to labour;
(f) an
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 the company;
(g) an
amount paid or payable by way of commission to an insurance or time-payment
canvasser or collector;
(h) an
amount in respect of services that is paid or payable by an employment agent,
directly or indirectly, to a person who was engaged to perform the services
for a client of the employment agent, or to some other person, as a result of
which engagement the employment agent receives payment, directly or
indirectly, whether by way of a lump sum or an ongoing fee, in relation to the
period during which the services are performed for the client by the person
engaged to perform them; and
(i)
an amount equal to the value of a fringe benefit or
specified taxable benefit that is provided to or in relation to an employee.
(2) Wages, salary,
commission, bonuses or allowances referred to in subclause (1)(b) are
taken to be paid or payable by the employer.
3. GST excluded from wages
(1) If a person is
liable to pay GST on the supply to which wages paid or payable to the person
relate, the amount of those wages on which pay-roll tax is payable is the
amount equal to the amount or value of the wages paid or payable to the person
minus the relevant proportion of the amount of GST payable by the person on
the supply to which the wages relate.
(2) In
subclause (1) —
"consideration" has the same meaning as in the
A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth;
"relevant proportion" "", in relation to GST
payable on a supply to which wages relate, means the proportion that the
amount or value of the wages bears to the consideration for the supply to
which the wages relate.
4. Place of payment of wages
(1) Wages that are
payable to a person, but have not been paid (except wages that, under the
terms of employment, are payable in Western Australia or in another State),
are taken —
(a) if
the wages are not payable for services carried out wholly in Western Australia
or wholly in one other State, and the wages last paid or payable to the person
were included or are required to be included in a return by the employer under
this Act — to be wages payable to the person in Western
Australia; or
(b)
where the wages are not taken, by paragraph (a) or by any provision in a
corresponding law that corresponds with paragraph (a), to be wages
payable to the person in Western Australia or in another State — to
be wages payable to the person by the employer at the place where the person
last carried out any services for the employer before the wages became
payable.
(2) If 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
the person’s agent at a place in Australia in payment of wages, the
wages are taken to have been paid at that place, and to have been paid when
the instrument was sent or given.
5. Provider of fringe benefits or
specified taxable benefits
(1) A fringe benefit
that is provided or liable to be provided by a person other than the employer
is taken to be provided by the employer.
(2) A
specified taxable benefit that is provided or liable to be provided to or in
relation to an employee by a person acting for or in concert or under an
arrangement or undertaking, whether formal or informal and whether express or
implied, with the employer, is taken to be provided by the employer.
6. Value of wages paid in kind and other benefits
(1) The value of wages
(except fringe benefits or specified taxable benefits) that are paid or
payable in kind is the greater of —
(a) the
value agreed or attributed to the wages in, or ascertainable for the wages
from, arrangements between the employer and the employee, whichever is the
greater; and
(b) if
the regulations prescribe how the value of wages of that type is to be
determined — the value determined in accordance with the
regulations.
(2) The value of a
specified taxable benefit is the prescribed value, or the value calculated in
the prescribed manner, as the case requires.
7. The value of fringe benefits
(1) The value of a
fringe benefit is —
(a) the
grossed-up value of the fringe benefit worked out in accordance with
subclause (2) (unless paragraph (b) applies to the fringe benefit);
or
(b) if a
method for determining the value of a particular kind of fringe benefit is
prescribed — the value determined as prescribed.
(2) The grossed-up
value of a fringe benefit is G in the formula —
where —
V is the
employee’s share of the taxable value of the fringe benefit worked
out —
(i)
if the benefit is a work-related benefit — under
the FBTA Act; or
(ii)
if the benefit is not a work-related benefit —
under the FBTA Act without regard to any reduction of that taxable value under
that Act because of the “otherwise deductible” rule;
F is the factor by
which —
(i)
for a fringe benefit that is a GST-creditable benefit
(within the meaning of the FBTA Act) — the “Type 1 aggregate
fringe benefits amount” is multiplied in section 5B(1B) of the FBTA
Act; or
(ii)
for a fringe benefit that is not a GST-creditable
benefit — the “Type 2 aggregate fringe benefits
amount” is multiplied in section 5B(1C) of the FBTA Act.
(3) In
subclause (2) the reference to the “otherwise deductible”
rule is a reference to any provision of the FBTA Act that provides for a
reduction of the taxable value of a fringe benefit because the person
receiving the benefit, had he or she personally incurred the cost of providing
it, would be allowed a deduction under the Income Tax Assessment Act 1936
of the Commonwealth in relation to that cost.
(1) A contribution
paid or payable by an employer in respect of a person to a superannuation fund
is taken, for the purposes of the definition of “wages” in
clause 2, to be a superannuation benefit paid by the employer in relation
to the person when and where the contribution is paid or payable.
(2) Clause 4
applies for the purpose of working out when and where the contribution is paid
or payable as if those provisions referred to contributions instead of wages.
9. Superannuation fund contributions
(1) Setting aside any
money or anything that is worth money as, or as part of, a superannuation fund
is taken to be paying it as a contribution to the superannuation fund.
(2) Making a
contribution to a superannuation fund of anything that is worth money is taken
to be paying a contribution of the amount equal to its value, and its value is
to be worked out in accordance with clause 6 as if that clause referred
to the contribution instead of to wages.
(3) If an amount by
way of administration or other charges in respect of the carrying on of a
superannuation fund is paid otherwise than to the fund, the amount is taken to
be paid as a contribution to the fund.
(4) If, in a
return period, a person becomes obliged, but fails, to do anything that, if it
were done, would be taken under subclause (1), (2) or (3) to be paying a
contribution to a superannuation fund, the contribution to the
superannuation fund is taken to be payable in the return period.
(5) A contribution to
a superannuation fund that is paid or payable on behalf of an employer is
taken to be paid or payable by the employer.
(6) Contributions to a
superannuation fund that are taken by different provisions of this Act to be
paid or payable by an employer are cumulative upon one another, and on
contributions that are actually paid or payable, unless it is otherwise
provided.
10. Contributions to
defined superannuation benefit schemes
(1) This clause
applies to an Australian superannuation scheme if the scheme —
(a)
either is not a regulated superannuation fund, or is an unfunded public sector
scheme (whether or not it is a regulated superannuation fund);
(b)
provides for an employer to contribute; and
(c)
provides for any defined superannuation benefit in respect of any person,
whether or not it also provides for any benefit that is not a defined
superannuation benefit.
(2) A contribution is
taken, for the purposes of clause 8(1), to be payable, in the
return period, by the employer to the superannuation fund for each
participant.
(3) The amount of the
contribution for a participant is the amount that an actuary determines would
be sufficient, together with earnings on the amount, to provide fully for the
cost to the employer of the entitlement accruing under the scheme to benefits
for services carried out by the participant in the return period.
(4) The regulations
may include provisions about how an actuary is to determine an amount under
subclause (3).
(5) If a contribution
by an employer under a scheme is taken by subclause (2) to be payable to
the superannuation fund, no other contribution by the employer to the fund
under the scheme is taken by clause 8(1) to be a superannuation benefit
unless —
(a) it
is a contribution that the employer is taken to pay under clause 12(1);
or
(b) the
contribution is made for any reason other than to make provision for the cost
described in subclause (3).
11. Unfunded credit to certain unregulated schemes
(1) This clause
applies to an Australian superannuation scheme if —
(a) it
is not a regulated superannuation fund;
(b) it
does not provide for any defined superannuation benefit in respect of any
person; and
(c)
under the scheme, any amount not excluded under subclause (3) is credited
in a return period as an employer’s contribution in respect of a person.
(2) An amount that a
person is obliged to, but does not, credit in a return period is taken for the
purposes of this clause to be credited in the return period and not at any
other time.
(3) Amounts of the
following kinds are excluded from the amount referred to in
subclause (1) —
(a) an
amount paid or payable as a contribution under the scheme;
(b) an
amount that is taken, otherwise than under subclause (4), to be paid or
payable as a contribution under the scheme for the purposes of clause 8.
(4) A contribution of
the amount referred to in subclause (1) is taken, for the purposes of
clause 8(1), to be payable by the employer to the superannuation fund
concerned, in the return period, in respect of each participant.
(5) If an amount
credited as an employer’s contribution under a scheme is taken under
subclause (4) to be payable to the fund concerned, no contribution paid
under the scheme is taken to be a superannuation benefit under
clause 8(1) to the extent that it is paid to meet or partly meet an
obligation arising from the credit.
12. Superannuation guarantee charge
(1) If any
superannuation guarantee charge payable by an employer is imposed in a
return period, a contribution of the amount of the charge is taken, for the
purposes of clause 8(1), to be payable by the employer to a
superannuation fund in the return period.
(2) If the charge is
imposed because of only one individual superannuation guarantee shortfall, the
contribution is taken to be in respect of the person in respect of whom the
employer has the shortfall.
(3) If the charge is
imposed because of an individual superannuation guarantee shortfall in respect
of each of 2 or more persons, the contribution is taken to be in respect of
them, apportioned according to the amount of the employer’s
individual superannuation guarantee shortfall in respect of each of them.
(4) If —
(a) a
contribution that was payable, but not paid, by the employer in respect of a
person is taken to be a superannuation benefit under clause 8(1); and
(b) the
charge is imposed wholly or in part because of an individual
superannuation guarantee shortfall that results wholly or in part from the
employer’s failure to pay the contribution,
then the amount of the
contribution that is taken by this clause to be payable in respect of the
person is reduced by the amount of the contribution described in
paragraph (a).
(5) However,
subclause (4) cannot reduce an amount below zero.
By Authority:
JOHN A. STRIJK, Government Printer