Part 3Wages

Part 3—Wages Division 1—General concept of wages 13—What are wages? (1) For the purposes of this Act, wages mean wages, remuneration, salary, commission, bonuses or allowances paid or payable to an employee, including— (a) an amount paid or payable by way of remuneration to a person holding an office under the Crown or in the service of the Crown; and (b) an amount paid or payable under any prescribed classes of contracts to the extent to which that payment is attributable to labour; and (c) an amount paid or payable by a company by way of remuneration to or in relation to a director of that company; and (d) an amount paid or payable by way of commission to an insurance or time payment canvasser or collector; and (e) an amount or benefit that is included as or taken to be wages by any other provision of this Act. (2) For the purposes of this Act, wages, remuneration, salary, commission, bonuses or allowances are wages— (a) whether paid or payable at piece work rates or otherwise; and (b) whether paid or payable in cash or in kind. (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). (3) Wages do not include anything that is prescribed by the regulations not to be wages for the purposes of this Act. Division 2—Fringe benefits 14—Wages include fringe benefits (1) For the purposes of this Act, wages include a fringe benefit. (2) Subsection (1) does not apply to benefits that are exempt benefits for the purposes of the FBTA Act (other than deposits to the Superannuation Holding Accounts Special Account within the meaning of the Small Superannuation Accounts Act 1995 of the Commonwealth). 15—Value of wages comprising fringe benefits (1) For the purposes of this Act, the value of wages comprising a fringe benefit is to be determined in accordance with the formula— FBT rate is the rate of fringe benefits tax imposed by the FBTA Act that applies when the liability to payroll tax under this Act arises TV is the value that would be the taxable value of the benefit as a fringe benefit for the purposes of the FBTA Act. (2) In this Act, a reference to taxable wages that were paid or payable by an employer during a month is, in relation to taxable wages comprising fringe benefits— (a) a reference to the value of the fringe benefits paid or payable by the employer during the month; or (b) if an election by the employer is in force under section 16, a reference to an amount calculated in accordance with that section. (3) In this Act, a reference to taxable wages that were paid or payable by an employer during a year is, in relation to taxable wages comprising fringe benefits, a reference to an amount calculated by adding together the amounts under subsection (2)(a) or (b) (or subsection (2)(a) and (b)) as the case requires, for the months of that year. 16—Employer election regarding taxable value of fringe benefits (1) An employer who has paid or is liable to pay fringe benefits tax imposed by the FBTA Act in respect of a period of not less than 15 months before 30 June in any year may elect to include as the value of the fringe benefits paid or payable by the employer during the month concerned— (a) in a return lodged in relation to each of the first 11 months occurring after 30 June in that year—1/12th of the amount determined in accordance with subsection (2) or that part of that amount as, in accordance with section 10, comprises taxable wages for the year of tax (within the meaning of the FBTA Act) ending on 31 March preceding the commencement of the current financial year; and (b) in the return lodged in relation to the 12th month—the amount determined in accordance with subsection (2) or that part of that amount as, in accordance with section 10, comprises taxable wages for the year of tax (within the meaning of the FBTA Act) ending on 31 March preceding that month, less the total of the amounts of fringe benefits included in the returns for each of the preceding 11 months. (2) The amount determined in accordance with this subsection is to be determined in accordance with the formula— AFBA is the aggregate fringe benefits amount within the meaning of section 136 of the FBTA Act FBT rate is the rate of fringe benefits tax imposed by the FBTA Act that applies when the liability to payroll tax under this Act arises. (3) An election under subsection (1) takes effect when it is notified to the Commissioner in the form approved by the Commissioner. (4) After an employer has made an election under subsection (1), the employer must lodge returns containing amounts calculated in accordance with the election unless the Commissioner approves, by notice in writing given to the employer, the termination of the election and allows the employer to include the value referred to in section 15(2)(a). (5) If an employer ceases to be liable to pay payroll tax, the value of taxable wages comprising fringe benefits to be included in the employer's final return is (irrespective of whether or not the employer has made an election under subsection (1)) the value of the fringe benefits paid or payable by the employer for the period commencing on and including the preceding 1 July until the date on which the employer ceases to be liable to payroll tax, less the value of the fringe benefits paid or payable by the employer during that period on which payroll tax has been paid. Division 3—Superannuation contributions 17—Wages include superannuation contributions (1) For the purposes of this Act, wages include a superannuation contribution. (2) A superannuation contribution is a contribution 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 (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) the Superannuation Holding Accounts Special Account 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; or (d) involving— (i) the crediting of an account of an employee, or any other allocation to the benefit of an employee (other than the actual payment of a contribution), so as to increase the entitlement or contingent entitlement of the employee under any form of superannuation, provident or retirement fund or scheme; or (ii) the crediting or the debiting of any other account, or any other allocation or deduction, so as to increase the entitlement or contingent entitlement of an employee under any form of superannuation, provident or retirement fund or scheme. (3) The Treasurer may estimate the contingent liability of an employer for contributions that will be payable to or in respect of an employee who is a member of the old or new scheme of superannuation under the Superannuation Act 1988 or of any other unfunded or partly funded scheme of superannuation, and the Treasurer's estimate is to be treated as a contribution paid or payable by an employer in respect of an employee for the purposes of the definition of superannuation contribution in subsection (2). (4) For the purposes of this Act, wages that are comprised of the Treasurer's estimate of an employer's contingent liability for superannuation contributions will be taken to be payable as soon as the contingent liability accrues. (5) The Treasurer's estimate must be based on an actuary's assessment of the employer's cost of the accruing liability for the employee. (6) Setting aside any money or anything that is worth money as, or as part of, a superannuation fund, superannuation guarantee charge or any other form of superannuation, provident or retirement fund or scheme is taken to be paying a superannuation contribution. (7) Making a superannuation contribution of anything that is worth money is taken to be paying a superannuation contribution of the amount equal to its value, and its value is to be worked out in accordance with section 43 as if that section referred to the contribution instead of to wages. (8) For the purposes of this Act, where a superannuation contribution arises under this Act because of subsection (2)(d)— (a) subject to paragraphs (b) and (c), the amount of wages attributable to that superannuation contribution will be taken to be the value of the increase of the entitlement or contingent entitlement of the relevant employee; (b) if that superannuation contribution can be directly attributed to a payment or setting apart of money within the ambit of paragraphs (a), (b) or (c) of subsection (2), the value of the superannuation contribution under paragraph (d) of subsection (2) (and therefore the relevant amount of wages) will only be the amount (if any) by which the value of that contribution exceeds the amount of the payment or setting apart of money (as the case may be); (c) if that superannuation contribution can be directly attributed to an increase in the capital of the relevant fund or scheme or to the payment of interest, over and above any contribution that the employer is required to make, or would be required to make but for the increase in capital or the payment of interest, the value of the superannuation contribution (to the extent that it exceeds any contribution that the employer is required, or would be required, to make as mentioned above), will be taken to be nil; (d) if there is a crediting or a debiting of an account, or any other allocation or deduction, and a corresponding debiting or crediting, or deduction or allocation, then liability for payroll tax will only arise with respect to 1 crediting or debiting, or allocation or deduction, so as to avoid double taxation. (9) In this section— employee includes any person to whom, by virtue of a paragraph of the definition of wages in section 13(1), an amount paid or payable in the circumstances referred to in that paragraph constitutes wages; partly funded scheme of superannuation means a scheme of superannuation (including a provident or retirement fund or scheme) under which the employer's liability for superannuation contributions is partly satisfied by a payment within the meaning of paragraphs (a) to (d) of the definition of superannuation contribution; unfunded scheme of superannuation means a scheme of superannuation (including a provident or retirement fund or scheme) under which no payment within the meaning of paragraphs (a) to (d) of the definition of superannuation contribution is made by the employer in total or partial satisfaction of his, her or its liability for superannuation contributions.