PAY-ROLL TAX ASSESSMENT.

No. 2 of 1941.

An Act relating to the Imposition, Assessment and Collection of a Tax upon the Payment of Wages.

[Assented to 4th April, 1941.]

[Date of commencement, 2nd May, 1941.]

BE it enacted by the King’s Most Excellent Majesty, the Senate, and the House of Representatives of the Commonwealth of Australia, as follows:—

Part I.—Preliminary.

Short title.

1. This Act may be cited as the Pay-roll Tax Assessment Act 1941.

Parts.

2. This Act is divided into Parts, as follows:—

Part I.—Preliminary.

Part II.—Administration.

Part III.—Liability to Taxation.

Part IV.—Registration and Returns.

Part V.—Collection and Recovery of Tax.

Part VI.—Objections and Appeals.

Part VII.—Penal Provisions.

Part VIII.—Taxation Prosecutions.

Part IX.—Miscellaneous.

Definitions.

3.—(1.) In this Act, unless the contrary intention appears—

“agent” includes every person who in Australia, for or on behalf of any person out of Australia (in this section called “the principal”), holds or has the management or control of the business of his principal, and every person declared by the Commissioner to be an agent or the sole agent for any person for the purposes of this Act;

“Board of Review” means a Board of Review constituted under the Income Tax Assessment Act 1936–1940;

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

“Deputy Commissioner” means a Deputy Commissioner of Taxation;

“employer” means any person who pays or is liable to pay any wages and includes—

(a) the Crown in the right of a State;

(b) a municipal corporation or other local governing body or a public authority constituted under any State Act;

(c) any public authority constituted under any Act or under any law in force in a Territory of the Commonwealth the wages paid by which are not paid out of the Consolidated Revenue Fund;

“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;

“person” includes a company;

“tax” means the tax imposed by the Pay-roll Tax Act 1941;

“the Commissioner” means the Commissioner of Taxation;

“the Second Commissioner” means the Second Commissioner of Taxation;

“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 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;

“wages” means any wages, 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 any employee as such and, without limiting the generality of the foregoing, includes—

(a) any payment made under any prescribed classes of contracts to the extent to which that payment is attributable to labour;

(b) any payment made by a company by way of remuneration to a director of that company;

(c) any payment made by way of commission to an insurance or time-payment canvasser or collector; and

(d) the provision by the employer of meals or sustenance or the use of premises or quarters as consideration or part consideration for the employee’s services;

(2.) For the purposes of this Act meals or sustenance provided by an employer shall be deemed to have a value of Fifteen shillings per week or, in any particular case or class of cases, such other value as is prescribed, and the use of premises or quarters provided by an employer shall be deemed to have a value of Five shillings per week or, in any particular case or class of cases, such other value as is prescribed.

(3.) Where any wages are paid or payable in respect of any service performed or rendered, those wages shall, for the purposes of this Act, be deemed to have been paid, or to be payable, as the case may be, in respect of the period of time in which that service was performed or rendered.

Part II.—Administration.

Commissioner.

4.—(1.) For the purposes of this Act, there shall be a Commissioner of Taxation who shall have the general administration of this Act.

(2.) The person for the time being holding office as Commissioner of Taxation under the Estate Duty Assessment Act 1914–1940 shall be the Commissioner of Taxation under this Act.

Second Commissioner.

5.—(1.) For the purposes of this Act, there shall be a Second Commissioner of Taxation.

(2.) The person for the time being holding office as Second Commissioner of Taxation under the Estate Duty Assessment Act 1914–1940 shall be the Second Commissioner of Taxation under this Act.

Powers of Second Commissioner.

6.—(1.) Subject to this section, the Second Commissioner shall have and may exercise all the powers and functions of the Commissioner under this Act.

(2.) Where in this Act the exercise of any power or function by the Commissioner or the operation of any provision of this Act is dependent upon the opinion, belief or state of mind of the Commissioner in relation to any matter, that power or function may be exercised by the Second Commissioner or that provision may operate (as the case may be) upon the opinion, belief or state of mind of the Second Commissioner in relation to that matter.

(3.) Nothing in this section shall be deemed to confer upon the Second Commissioner any power or function of the Commissioner under section four, or under section eight or ten, of this Act, or to prevent the exercise of any power or function by the Commissioner under this Act, and the Commissioner shall have, in relation to any act of the Second Commissioner, the same power as if that act were done by himself.

Deputy Commissioners.

7. For the purposes of this Act, there shall be such Deputy Commissioners of Taxation as are required, who shall, subject to the control of the Commissioner, have such powers and functions as are prescribed, or as the Commissioner directs.

Delegation by the Commissioner.

8.—(1.) The Commissioner may, in relation to any particular matters or class of matters, or to any particular State or part of the Commonwealth, by writing under his hand, delegate to a Deputy Commissioner or other person all or any of his powers or functions under this Act (except this power of delegation) so that the delegated powers or functions may be exercised by the Deputy Commissioner or person with respect to the matters or class of matters or the State or part of the Commonwealth specified in the instrument of delegation.

(2.) Every delegation under this section shall be revocable at will, but any delegation shall not prevent the exercise of any power or function by the Commissioner.

(3.) Any delegation under this section may be made subject to a power of review and alteration, within the period specified in the instrument of delegation, by the Commissioner of any act done in pursuance of the delegation, and the decision given upon any such review or alteration shall be deemed to be that of the Commissioner.

References to Commissioner.

9. Any reference in this Act to the Commissioner shall be deemed to include—

(a) in respect of matters as to which the Second Commissioner has exercised any power or function conferred upon him by this Act—a reference to the Second Commissioner; and

(b) in respect of matters as to which a Deputy Commissioner has exercised any power or function conferred upon him by delegation under this Act—a reference to that Deputy Commissioner.

Report by the Commissioner.

10.—(1.) The Commissioner shall furnish to the Treasurer annually, for presentation to the Parliament, a report on the working of this Act.

(2.) In the report the Commissioner shall draw attention to any breaches or evasions of this Act which have come under his notice

Officers to observe secrecy.

11.—(1.) Every person executing any power or duty conferred or imposed on an officer under this Act or the Regulations thereunder shall, before entering upon his duties or exercising any power under this Act, make before a Justice of the Peace or a Commissioner for taking Affidavits or a Commissioner for Declarations, a declaration in the form prescribed.

(2.) Any person who acts in the execution of any duty under this Act, or the Regulations thereunder, before he has made the prescribed declaration, or who after making the declaration makes a record of or divulges any information relating to the affairs of a person except in the performance of any duty under this Act shall be guilty of an offence.

Penalty: Two hundred and fifty pounds.

(3.) Any person who has been an officer or has performed any duty under this Act, and who communicates any information acquired by him in the performance of any duty under this Act or the Regulations thereunder to any person, other than a person to whom he is authorized by the Commissioner, Second Commissioner or a Deputy Commissioner to communicate it, shall be guilty of an offence.

Penalty: Two hundred and fifty pounds.

(4.) Notwithstanding anything contained in this section, the Commissioner, the Second Commissioner or a Deputy Commissioner may communicate any matter, which comes to his knowledge in the

performance of his official duties, to a Board of Review, to the Commissioner of Income Tax for any State, or the officer or authority administering any Act of a State relating to Stamp Duties or Succession Duties (who is authorized by law to afford similar information to the Commissioner, the Second Commissioner or a Deputy Commissioner) or to the Comptroller-General of Customs.

(5.) Where any matter is communicated to a Board of Review in pursuance of this section and that matter consists of returns, or information derived from returns, of a taxpayer other than the taxpayer whose assessment is under review in the review in the course of which the communication is made, the members of the Board shall be subject to the same obligation as is imposed by subsection (3.) of this section upon a person who has been an officer under this Act.

(6.) An officer shall not be required to produce in any court any return, assessment or notice of assessment, or to divulge or communicate to any court any matter or thing coming under his notice in the performance of his duties under this Act except as may be necessary for the purpose of carrying into effect the provisions of this Act.

Part III.—Liability to Taxation.

Pay-roll tax.

12. Subject to, and in accordance with, the provisions of this Act, the tax imposed by the Pay-roll Tax Act 1941 shall be levied and paid on all wages paid or payable by any employer in respect of any period of time occurring after the thirtieth day of June, One thousand nine hundred and forty-one.

Liability to pay tax.

13. Pay-roll tax shall be paid by the employer who pays or is liable to pay the wages.

General exemption

14. For the purposes of ascertaining the tax payable by an employer on wages paid or payable by him in respect of any period, there shall be excluded from those wages an amount calculated at the rate of Twenty pounds per week.

Exemption from tax.

15.—The provisions of this Part shall not apply to wages paid—

(a) by the Governor-General or the Governor of a State;

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

(c) to members of his official staff by—

(i) a diplomatic, consular or other representative in Australia of the government of any other part of His Majesty’s dominions or of any other country; or

(ii) a Trade Commissioner representing in Australia any other part of His Majesty’s dominions.

Annual adjustment of tax.

16.—(1.) Where the wages paid or payable by any employer in respect of the financial year commencing on the first day of July, One thousand nine hundred and forty-one, or in respect of any subsequent financial year, do not exceed—

(a) in the case of a person who is an employer during the whole of the financial year—the amount of One thousand and forty pounds; or

(b) in the case of a person who is an employer during part only of the financial year—such amount as bears to One thousand and forty pounds the same proportion as that part of the year bears to a year,

the Commissioner shall refund or rebate to that employer the amount of tax paid or payable, as the case may be, by him in respect of that year or part.

(2.) Where any person to whom paragraph (b) of the last preceding sub-section applies, satisfies the Commissioner that the wages paid in respect of his trade or business, by reason of the nature of that trade or business, fluctuate with different periods of the year and that, as a consequence, if he had been an employer for the full period of the financial year the total wages would not have exceeded the amount of One thousand and forty pounds, the Commissioner may treat him as a person to whom paragraph (a) of that sub-section applies.

Part IV.—Registration and Returns.

Registration.

17. Every employer who, in respect of any period of time occurring after the commencement of this Act, pays or is liable to pay wages at a rate in excess of Twenty pounds per week shall, within seven days after the close of the month in which that period ends, make application to the Commissioner in accordance with the form and in the manner prescribed, for registration as an employer.

Returns.

18. Every employer who is registered or required to be registered in accordance with the provisions of the last preceding section shall, within seven days after the close of each month, furnish to the Commissioner, in accordance with the form and in the manner prescribed, a return of all wages paid or payable by him in respect of that month or in respect of each pay period of less than one month ending in that month, as the case may be:

Provided that this section shall not apply to any month prior to the month of July, One thousand nine hundred and forty-one.

Exemption from furnishing returns.

19.—(1.) If the Commissioner is of the opinion that no tax will be payable by an employer, or, if paid, would be refunded, he may issue a certificate to that employer exempting him from furnishing monthly returns in accordance with the provisions of the last preceding section, and any employer to whom such a certificate is issued may refrain from furnishing monthly returns but shall, unless the contrary is expressed in the certificate, furnish an annual return within twenty-one days after the close of each financial year.

(2.) A certificate issued under the last preceding sub-section may be either unconditional or subject to such conditions as are prescribed or as the Commissioner thinks fit.

(3.) The issue of a certificate under sub-section (1.) of this section shall not exempt an employer from the payment of any tax, notwithstanding that it may have the effect of postponing the time for payment of any tax.

Further returns.

20. 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.

Department to obtain Information and evidence.

21.—(1.) The Commissioner may, by notice in writing, require any employer or person—

(a) to furnish him with such information as he requires; or

(b) to attend and give evidence before him or before any officer authorized by him in that behalf,

for the purpose of inquiring into or ascertaining his or any other person’s liability under any of the provisions of this Act, and may require him to produce all books, documents and other papers whatsoever in his custody or under his control relating thereto.

(2.) The Commissioner may require the information or evidence to be given on oath, and either orally or in writing, and for that purpose he or the officer so authorized by him may administer an oath.

(3.) Regulations made under this Act may prescribe scales of expenses to be allowed to persons required under this section to attend.

Part V.—Collection and Recovery of Tax.

Time for payment of tax.

22. Every employer liable to pay tax shall pay the tax within the time within which he is required by this Act to lodge the return of the wages in respect of which the tax is payable.

Assessments.

23.—(1.) Where the Commissioner finds in any case that tax or further tax is payable by any employer, the Commissioner may—

(a) assess the amount of wages paid or payable by the employer; and

(b) calculate the tax or further tax payable thereon.

(2.) Where—

(a) any employer makes default in furnishing any return;

(b) the Commissioner is not satisfied with the return made by any employer; or

(c) the Commissioner has reason to believe or suspect that any employer (though he may not have furnished any return) is liable to pay tax,

the Commissioner may cause an assessment to be made of the amount upon which, in his judgment, tax ought to be levied and that person shall be liable to pay tax thereon, excepting in so far as he establishes on objection that the assessment is excessive.

(3.) Any employer who becomes liable to pay tax by virtue of an assessment made under the last preceding sub-section shall also be liable to pay, by way of additional tax, double the amount of that tax or the amount of One pound, whichever is the greater:

Provided that the Commissioner may, in any particular case, for reasons which he thinks sufficient, remit the additional tax or any part thereof.

(4.) As soon as conveniently may be after an assessment is made under this section, the Commissioner shall cause notice in writing of the assessment and of the tax or further tax to be given to the employer liable to pay the tax or further tax.

(5.) The amount of tax or further tax specified in the notice shall be payable on or before the date specified in the notice together with any other amount which may be payable in accordance with any other provision of this Act.

(6.) The omission to give any such notice shall not invalidate the assessment and calculation made by the Commissioner.

Refunds.

24. Where the Commissioner finds in any case that tax has been overpaid he may refund to the employer who paid the tax the amount of tax found to be overpaid.

Employer leaving Australia.

25.—(1.) When the Commissioner has reason to believe that an employer may leave Australia before the tax or further tax becomes due and payable by him, the tax or further tax shall be due and payable on such date as the Commissioner fixes and notifies to the employer.

(2.) Subject to this section, every employer who is registered or required to be registered under this Act, who is about to leave Australia, shall apply to the Commissioner, at his office or at the office of a Deputy Commissioner, for a certificate that—

(a) tax is not payable by that employer; or

(b) all tax which is due by that employer has been paid or that arrangements satisfactory to the Commissioner have been made for the payment of that tax and of any further tax which may become due and payable by that employer,

and the Commissioner, Second Commissioner or Deputy Commissioner, upon being satisfied as to the facts, may issue a certificate accordingly.

(3.) Every certificate issued under the last preceding sub-section shall be presented by or on behalf of the person to whom it is issued to the office of the owner or charterer, or of the representative of the owner or charterer, of the ship or aircraft by which the person intends to leave Australia at the port at which passage by the ship or aircraft is to be booked, and unless and until such certificate is so presented an authority for that person to travel by that ship or aircraft shall not be issued by the owner or charterer or a representative or employee of the owner or charterer.

(4.) Any owner or charterer or the representative or employee of the owner or charterer of any ship or aircraft who issues in contravention of the provisions of the last preceding sub-section an authority to any person to travel by the ship or aircraft shall be guilty of an offence.

Penalty: The amount of tax, if any, which is, or may become, due and payable by the person to whom the authority to travel is issued and in addition a fine not less than Fifty pounds or more than Two hundred pounds.

(5.) The owner, charterer, or the representative of the owner or charterer, of every ship or aircraft which takes passengers on board at any port shall, on the first working day after the advertised date of departure of the ship or aircraft from the port in Australia at which the certificate mentioned in this section is required to be presented, lodge all certificates so presented at the office of the Deputy Commissioner of Taxation for the State in which that port is situated, together with a list showing the name and last-known address in Australia of every person (other than members of the crew and staff of the ship or aircraft) who sailed on the ship or aircraft.

(6.) Every owner or charterer of a ship or aircraft or his representative who fails to comply with the provisions of the last preceding sub-section shall be guilty of an offence.

Penalty: Not less than Ten pounds or more than One hundred pounds.

Time to pay—extensions and Instalments.

26. The Commissioner may, in such cases as he thinks fit—

(a) extend the time for payment of any tax or further tax by such period as he considers the circumstances warrant; or

(b) permit the payment of tax or further tax to be made by instalments within such time as he considers the circumstances warrant.

Penal tax.

27. If the tax or further tax is not paid before the expiration of the time specified in section twenty-two or twenty-three of this Act, or such further time as may be allowed by the Commissioner under section twenty-six of this Act, additional tax shall be payable at the rate of ten per centum per annum upon the amount of tax unpaid, to be computed from the expiration of the time specified in section twenty-two or twenty-three of this Act, or, where further time has been allowed by the Commissioner under section twenty-six of this Act, from the expiration of that further time:

Provided that, the Commissioner may, in any particular case, for reasons which in his discretion he thinks sufficient, remit the additional tax imposed or any part thereof.

Recovery of tax.

28.—(1.) Tax shall be deemed when it becomes due and payable to be a debt due to the King on behalf of the Commonwealth and payable to the Commissioner in the manner and at the place prescribed.

(2.) Any tax or further tax unpaid, including any additional tax, may be sued for and recovered in any court of competent jurisdiction by the Commissioner or a Deputy Commissioner suing in his official name.