Businesses will no longer be able to claim deductions for payments to their employees where they have not met their PAYG obligations.  This includes where the employer is required to withhold PAYG from gross payments, but fail to report or remit it to the ATO.

Employers will be required to make sure all reports relating to PAYG withholding amounts be made to the ATO.  Failure to do so will render the gross payments made to employees’ non-deductible.  This includes any ‘nil’ lodgements for Activity Statements as well as any non-payments of PAYG withholding.

Strict penalties already apply to businesses who fail to withhold certain amounts paid for royalties, foreign dividends and interest payments.  Not only are these businesses fined by the withholding amount, but additional failure to remit penalties will also apply.

The new legislation goes another step further by removing deductibility of the original payment for workers.

Originally announced as part of the federal budget, this Black Economy legislation is due to take effect from date of Royal Assent.  PAYG withholders will be required to ensure that all lodgements are made on time to avoid large penalties with denied tax deductions.

Additionally, the deduction for businesses on certain payments to contractors which have not met PAYG obligations will be denied.  There are some exceptions.  In situations where an employer has been audited by the ATO and deemed to be paying staff as independent contractors, no denial of deductions will occur if the employer has made a genuine mistake and thought the staff member was a contractor.  However, the employer may still be liable for penalties associated with non-compliance of other tax and withholding obligations.

 

Source: Treasury Laws Amendment (Black Economy Taskforce Measures No. 2) Bill 2018; Budged paper No 2, p 24 (VIA Wolters Kluwer)