Div 7Contractor provisions

Division 7—Contractor provisions 31—Definitions contract includes an agreement, arrangement or undertaking, whether formal or informal and whether express or implied; relevant contract has the meaning given in section 32; re-supply of goods acquired from a person includes— (a) a supply to the person of goods in an altered form or condition; and (b) a supply to the person of goods in which the first‑mentioned goods have been incorporated; services includes results (whether goods or services) of work performed; supply includes supply by way of sale, exchange, lease, hire or hire‑purchase, and in relation to services includes the providing, granting or conferring of services. 32—What is a relevant contract? (1) In this Division, a relevant contract in relation to a financial year is a contract under which a person (the designated person) during that financial year, 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 another person for or in relation to the performance of work; or (c) gives out goods to a person for work to be performed by the person in respect of those goods and for re‑supply of the goods to the designated person or, where the designated person is a member of a group, to another member of that group. (2) However, a relevant contract does not include a contract of service or a contract under which a person (the designated person) during a financial year in the course of a business carried on by the designated person— (a) is supplied with 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 person; or (b) is supplied with services for or in relation to the performance of work where— (i) those services are of a kind not ordinarily required by the designated person and are performed by a person who ordinarily performs services of that kind to the public generally; or (ii) those services are of a kind ordinarily required by the designated person for less than 180 days in a financial year; or (iii) 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 that financial year and are not services— (A) provided by a person by whom similar services are provided to the designated person; or (B) for or in relation to the performance of work where any person who performs the work also performs similar work for the designated person, for periods that, in the aggregate, exceed 90 days in that financial year; or (iv) those services are supplied under a contract to which subparagraphs (i) to (iii) do not apply and the Commissioner is satisfied that those services are performed by a person who ordinarily performs services of that kind to the public generally in that financial year; or (c) is supplied by a person (the contractor) with services for or in relation to the performance of work under a contract to which paragraphs (a) and (b) do not apply where the work to which the services relate is performed— (i) 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 (ii) 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 (iii) 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; or (d) is supplied with— (i) services solely for or ancillary to the conveyance of goods by means of a vehicle provided by the person conveying them; or (ii) services solely for or in relation to the procurement of persons desiring to be insured by the designated person; or (iii) services for or in relation to the door‑to‑door sale of goods solely for domestic purposes on behalf of the designated person. (2a) Subsection (2)(a), (2)(b)(i), (2)(b)(iv) or (2)(d) does not apply to a contract under which services not referred to in that subsection are supplied in addition to services referred to in that subsection. (2b) Subsection (2)(b)(ii) or (iii) does not apply to— (a) a contract under which services not referred to in that subsection are supplied in addition to services referred to in that subsection; or (b) a contract under which services referred to in that subsection are provided for a period exceeding a period referred to in that subsection. (2c) Subsection (2)(c) does not apply to a contract under which work is performed in a manner other than a manner referred to in that subsection, in addition to work performed in a manner referred to in that subsection. (2d) Subsection (2) does not apply if the Commissioner determines that the contract under which the services are supplied was entered into with an intention either directly or indirectly of avoiding or evading the payment of tax by any person. (3) For the purposes of this section, an employment agency contract under which services are supplied by an employment agent, or a service provider is procured by an employment agent, is not a relevant contract. (4) For the purposes of this section, a relevant contract does not include a contract of service of a class excluded from the operation of this section by the regulations. 33—Persons taken to be employers (1) For the purposes of this Act, a person— (a) who during a financial year, under a relevant contract, supplies services to another person; or (b) who during a financial year, under a relevant contract, is supplied with services for or in relation to the performance of work; or (c) who during a financial year, under a relevant contract, gives out goods to another person, is taken to be an employer in respect of that financial year. (2) If a contract is a relevant contract under both section 32(1)(a) and (b)— (a) the person to whom, under the contract, the services of another person are supplied for or in relation to the performance of work is taken to be an employer; and (b) despite subsection (1)(a), the person who under the contract supplies the services is taken not to be an employer. 34—Persons taken to be employees For the purposes of this Act, a person who during a financial year— (a) performs work for or in relation to which services are supplied to another person under a relevant contract; or (b) being a natural person, under a relevant contract, re‑supplies goods to an employer, is taken to be an employee in respect of that financial year. 35—Amounts under relevant contracts taken to be wages (1) For the purposes of this Act, amounts paid or payable by an employer during a financial year for or in relation to the performance of work relating to a relevant contract or the re‑supply of goods by an employee under a relevant contract are taken to be wages paid or payable during that financial year. (2) If an amount referred to in subsection (1) is included in a larger amount paid or payable by an employer under a relevant contract during a financial year, that part of the larger amount which is not attributable to the performance of work relating to the relevant contract or the re‑supply of goods by an employee under the relevant contract is as determined by the Commissioner. (3) An amount paid or payable for or in relation to the performance of work under a relevant contract is taken to include— (a) any payment made by a person who is taken to be an employer under a relevant contract in relation to a person who is taken to be an employee under the relevant contract that would be a superannuation contribution if made in relation to a person in the capacity of an employee; and (b) the value of any share or option (not otherwise included as wages under this Act) provided or liable to be provided by a person who is taken to be an employer under a relevant contract in relation to a person who is taken to be an employee under the relevant contract that would be included as wages under Division 4 if provided to a person in the capacity of an employee. 36—Liability provisions If, in respect of a payment for or in relation to the performance of work that is taken to be wages under this Division, payroll tax is paid by a person taken under this Division to be an employer— (a) no other person is liable to payroll tax in respect of that payment; and (b) if another person is liable to make a payment for or in relation to that work, that person is not liable to payroll tax in respect of that payment unless it or the payment by the first‑mentioned person is made with an intention either directly or indirectly of avoiding or evading the payment of tax whether by the first‑mentioned person or another person.