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Date of judgement | 15 September 2020 |
Proceeding No. | 2019/00165259 |
Judge(s) | Senior Member Isenberg |
Court or Tribunal | NSW Civil and Administrative Tribunal |
Payroll tax - relevant contract - employment agency contract - onus of taxpayer
B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187, (2008) 74 NSWLR 481
Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 657
Cornish Investments Pty Limited v Chief Commissioner of State Revenue (RD) [2013] NSWADTAP 25
HRC Hotel Services Pty Ltd v Chief Commissioner of State Revenue [2018] NSWSC 820
JP Property Services Pty Ltd v Chief Commissioner of State Revenue [2017] NSWSC 1391
Qualweld Australia Pty Ltd v Chief Commissioner of State Revenue [2014] NSWCATAD 227
RV Enterprises Pty Ltd as trustee of the R M O'Mara Family Trust v Chief Commissioner of State Revenue [2004] NSWADT 64
UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852
The Applicants conducted a business of representing models to the Applicants’ clients, or sourcing models for clients, for a commission on each transaction between a client and a model.
The Applicants sought a review of payroll tax assessments for the 2014, 2015, 2016 and 2017 financial years and for the period 1 July 2017 to 30 November 2017 (collectively referred to as the Relevant Period).
The key issue was whether the Applicants were “employment agents” for the purpose of Div. 8 Pt. 3 of the Payroll Tax Act 2007 (NSW) (the “Act”).
A secondary issue was whether the agreements between the Applicants and the models were “relevant contracts” within the meaning of Div. 7 Pt. 3 of the Act.
The Chief Commissioner made the following submissions in support of the contention that the Applicants were employment agents:
The Applicants argued against the proposition they were employment agents on the following grounds:
The Tribunal had regard to the Supreme Court decision in Bayton Cleaning and was not satisfied that the models, as service providers, are not effectively added to the workforce of the client for the conduct of the client’s business in circumstances where those models have agreed to provide services to the relevant client in accordance with agreements negotiated between the relevant model and the client and perform work in accordance with those agreements (at paras [58] & [59]).
Having regard to the Tribunal’s decision regarding Issue 1 and applying s.32(3) which provides that an employment agency contract is not a relevant contract, the Tribunal found that there are no relevant contracts (at para [63]).
Following its findings in relation to Issues 1 and 2, the Tribunal determined that:
The Tribunal held that the Applicants did not satisfy their onus of proving the Assessments were incorrect other than in relation to the Tribunal’s finding that some tax had been paid by clients and the Chief Commissioner’s concession regarding reasonable care.
https://www.caselaw.nsw.gov.au/decision/1748a64c6c6e50dff108c6e4