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Gabi Duta Pty Ltd v Chief Commissioner of State Revenue [2018] NSWCATAD 35

Date of judgement 12 February 2018 Proceeding No. 2017/00102449
Judge(s) AR Boxall, Senior Member
Court or Tribunal New South Wales Civil and Administrative Tribunal
Legislation cited Administrative Decisions Review Act 1997, sections 58 and 63

Payroll Tax Act 2007, sections 3, 10, 11, 32, 37, 38, 39 and 40, and Schedule 1

Taxation Administration Act 1996, sections 11, 22, 27, 29 and 100(3)
Catchwords TAX — payroll tax - Taxation Administration Act 1996- Payroll Tax Act 2007 - Administrative Decisions Review Act 1997
Cases cited Levitch Design Associates Pty Ltd atf Levco Unit Trust v Chief Commissioner of State Revenue [2014] NSWCATAD 215

UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852

Background

The issue concerned whether payments made by the Applicant to contractors during the payroll tax years in dispute were liable for payroll tax.

The Chief Commissioner contended that the payments were taxable wages based on two arguments. First, the Chief Commissioner relied on Division 8 of Part 3 of the Payroll Tax Act 2007 (“the Act”) and contended that the Applicant was an “employment agent”. In the alternative, the Chief Commissioner argued that the payments made to the contractors were made under relevant contracts, with no exceptions enlivened under Division 7 of Part 3 of the Act.

Issues

In relation to the first argument, the Chief Commissioner argued that the agreements, arrangements or undertakings under which the Applicant makes the services of agricultural workers available to its clients made it an employment agent within the meaning of s 37 of the Act. The Chief Commissioner relied on information provided by the Applicant during the audit process, including a questionnaire where the Applicant stated that the nature of the Applicant’s business was “labour hire service”.

The Chief Commissioner argued that the Applicant should therefore be taken to be an employer under s 38 of the Act. The persons who perform work for, or in relation to which services are supplied by the Applicant to its clients under employment agency agreements are taken to be employees of the Chief Commissioner under s 37(1) of the Act. In turn, under s 40 of the Act, the amounts paid to the Applicant in connection with any such employment should be taken to be wages paid or payable by the Applicant.

The Applicant argued that a significant portion of the amounts included by the Chief Commissioner in calculating the Applicant’s liability for payroll tax are payments made by the Applicant to sub-contractors in order to ensure that the services meet the Applicant’s contractual obligations to its customers.

Secondly, the Applicant argued that both wages and contractor payments are clearly referrable to contracts undertaken by the Applicant in either NSW or Victoria, and wages paid by the Applicant to contractors in Victoria should not be liable to payroll tax in NSW.

Decision

The Tribunal noted that the Applicant failed to provide certain information and records requested by the Chief Commissioner to support its claims. The Tribunal found that the Applicant had not discharged its onus of proof, and accepted the Chief Commissioner’s argument that the Applicant was an employment agent on the basis that the Applicant provided workers to work in its clients’ businesses. The workers worked on the clients’ farms as viticultural farm hands, picking grapes and pruning grapevines, and in some years chipping out weeds or working as general farm hands on cotton farms.

The Tribunal applied the principals established in the judgment of the Supreme Court in UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852. Accordingly, the Tribunal held that there was no need to consider the relevant contractor argument.

Order

Decision under review affirm.

Link to decision

Gabi Duta Pty Ltd v Chief Commissioner of State Revenue [2018] NSWCATAD 35

Last updated: 1 March 2018