Uber Australia Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 1124

Supreme Court New South Wales

Medium Neutral Citation: Uber Australia Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 1124 Hearing dates: 7, 8, 9, 22 and 29 August 2024 Date of orders: 6 September 2024 Decision date: 06 September 2024 Jurisdiction: Equity - Revenue List Before: Hammerschlag CJ in Eq Decision: See [187] Catchwords: TAXES AND DUTIES — Payroll tax — Liability — Contractors —Payroll Tax Act 2007 (NSW) ss 31, 32(1)(b), 32(2)(a), 32(2)(b), 32(2B), 35(1) — Taxation Administration Act 1996 (NSW) s 97 — Application to review a decision of the Chief Commissioner of State Revenue disallowing the plaintiff's objection to six payroll tax assessments issued by the Chief Commissioner — Application to remit premium component of interest imposed on the plaintiff by the Chief Commissioner — Plaintiff operates a rideshare system which puts riders who wish to be transported by motor vehicle with drivers offering the service of picking them up and driving them to their destination — Whether plaintiff's contractual arrangements with drivers is a relevant contract within s 32(1)(b) — Whether the plaintiff comes within any of the exclusions in s 32(2) — Whether amounts paid or payable by the plaintiff to drivers are amounts paid for or in relation to the performance of work under the relevant contract — HELD — The contractual arrangements are a relevant contract — The plaintiff does not come within any of the exclusions in s 32(2) — The amounts paid by the plaintiff to drivers were not paid for or in relation to the performance of work under the relevant contract and are not taken to be wages paid or payable by it — Consequently, payroll tax is not payable on those amounts — FURTHER HELD — if payroll tax was payable, premium interest component should be remitted in full Legislation Cited: Interpretation Act 1987 (NSW) Payroll Tax Act 1971 (NSW) Payroll Tax Act 2007 (NSW) Taxation Administration Act 1996 (NSW) Cases Cited: Accident Compensation Commission v Odco Pty Ltd (1990) 95 ALR 641; [1990] HCA 43 Bayton Cleaning Company Pty Ltd v Chief Commissioner of State Revenue (2019) 109 ATR 879; [2019] NSWSC 657 CFMEU v Personnel Contracting Pty Ltd (2022) 275 CLR 165; [2022] HCA 1 Chief Commissioner of State Revenue v Downer EDI Engineering Pty Ltd (2020) 103 NSWLR 772; [2020] NSWCA 126 Chief Commissioner of State Revenue v Incise Technologies Pty Ltd (2004) 56 ATR 82; [2004] NSWADTAP 19 Commissioner of State Revenue v Optical Superstore Pty Ltd [2019] VSCA 197 Commissioner of Taxation (Cth) v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520; [2000] HCA 35 Commissioner of Taxation v Energy Resources of Australia Ltd (1994) 54 FCR 25 Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579 Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; [1991] HCA 28 Deputy Commissioner v Dick (2007) 226 FLR 388; [2007] NSWCA 190 Downer EDI Engineering Pty Ltd v Chief Commissioner of State Revenue [2019] NSWSC 743 Inghams Enterprises Pty Ltd v Hannigan (2020) 379 ALR 196; [2020] NSWCA 82 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 Jones v Skinner (1835) 5 LJ Ch 90 King v Jones (1972) 128 CLR 221 Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 Loan Market Group Pty Ltd v Chief Commissioner of State Revenue [2024] NSWSC 390 Milstern Nominees Pty Ltd v Chief Commissioner of State Revenue (2015) 89 NSWLR 43; [2015] NSWSC 68 Minister of State for the Army v Dalziel (1944) 68 CLR 261 Navy Health Ltd v Deputy Commissioner of Taxation (2007) 163 FCR 1; [2007] FCA 931 Queensbury Industrial Society v Pickles (1865) LR 1 Exch 1; 14 WR 30 Re Khazaal (2012) 246 CLR 601; [2012] HCA 26 Smith's Snackfood Company Ltd v Chief Commissioner of State Revenue (NSW) (2013) 97 ATR 904; [2013] NSWCA 470 Southern Cross Group Services Pty Ltd v Chief Commissioner of State Revenue (2019) 110 ATR 16; [2019] NSWSC 666 Technical Products Pty Ltd v State Government Insurance Office (Qld) (1989) 167 CLR 45; [1989] HCA 24 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510; [2010] HCA 33 Workers Compensation Board of Queensland v Technical Products Pty Ltd (1988) 165 CLR 642; [1988] HCA 49 Texts Cited: Explanatory Memorandum, Pay-roll Tax (Amendment) Bill 1983 (Vic) Explanatory Memorandum, Pay-roll Tax (Amendment) Bill (No. 2) 1983 (Vic) Explanatory Memorandum, State Tax Laws Amendment (Budget and Other Measures) Bill 2013 (Vic) Explanatory Note, Payroll Tax Bill 2007 (NSW) Explanatory Note, State Revenue Legislation Further Amendment Bill 2014 (NSW) Halsbury's Laws of Australia, 405 – Taxation and Revenue, at par 39035 (online at 18 October 2021) Macquarie Dictionary, 4th ed (2006) GE Dal Pont, Law of Agency (4th ed, 2020, LexisNexis) Category: Principal judgment Parties: Uber Australia Pty Ltd (Plaintiff) Chief Commissioner of State Revenue (Defendant) Representation: Counsel: J Lockhart SC and C Burnett SC with B Mostafa and D Lewis (Plaintiff)