Income Tax Assessment Act 1997

Chapter 4 inserted by No 162 of 2001.

Part 4-5 inserted by No 162 of 2001.

Div 840 inserted by No 32 of 2008 , s 3 and Sch 1 item 2, applicable to fund payments made in relation to the first income year starting on or after the first 1 July after 23 June 2008 and later income years.

Subdiv 840-S heading substituted by No 75 of 2022, s 3 and Sch 4 item 7, applicable in relation to salary, wages, commission, bonuses and allowances paid on or after 1 July 2022. The heading formerly read:

Subdivision 840-S - Seasonal Labour Mobility Program withholding tax

Subdiv 840-S inserted by No 58 of 2012, s 3 and Sch 1 item 5, effective 21 June 2012.

S 840-905 amended by No 75 of 2022, s 3 and Sch 4 items 10 - 12, by substituting para (a), inserting para (b)(iii) and substituting note 1, applicable in relation to salary, wages, commission, bonuses and allowances paid on or after 1 July 2022. Para (a) and note 1 formerly read:

(a) that is salary, wages, commission, bonuses or allowances paid to you as an employee of an Approved Employer under the Seasonal Labour Mobility Program; and

Note 1:

The tax, which is called Seasonal Labour Mobility Program withholding tax, is imposed by the Income Tax (Seasonal Labour Mobility Program Withholding Tax) Act 2012 and the rate of the tax is set out in that Act.

S 840-905 amended by No 8 of 2022, s 3 and Sch 8 item 33, by substituting para (b), effective 1 April 2022 and applicable in relation to income derived on or after 1 July 2019. Para (b) formerly read:

(b) that you * derive at a time when:

(i) you are a foreign resident; and

(ii) you hold a Temporary Work (International Relations) Visa (subclass 403).

[ CCH Note: The Commissioner ' s Remedial Power to s 840-905(b) were repealed effective 1 April 2022. Commissioner ' s Remedial Power formerly read:

Commissioner ' s Remedial Power

Note: A Commissioner ' s Remedial Power modification is relevant to this part of the tax law.

Taxation Administration (Remedial Power - Seasonal Labour Mobility Program) Determination 2020 (F2020L01474) modifies the operation of s 840-905(b)(ii) of the Income Tax Assessment Act 1997 (ITAA 1997) and s 12-319A(b)(ii) of Sch 1 to the Taxation Administration Act 1953 (TAA 1953) to include foreign resident employees of Approved Employers under the Seasonal Labour Mobility Program ( " employees under the Program " ) who previously held a Temporary Work (International Relations) Visa (subclass 403) and have extended their stay in Australia using a different temporary visa (including a bridging visa) granted under the Migration Act 1958 .

The operation of the relevant provisions is modified as follows:

For the purposes of s 370-5 in Sch 1 to TAA 1953, s 840-905(b)(ii) of ITAA 1997 operates with the following modification:

• If you formerly held a Temporary Work (International Relations) Visa (subclass 403) and you hold a different temporary visa at a particular time, you are treated as if you hold a Temporary Work (International Relations) Visa (subclass 403) at that time.

For the purposes of s 370-5 in Sch 1 to TAA 1953, s 12-319A(b)(ii) of Sch 1 to TAA 1953 operates with the following modification:

• An employee, who formerly held a Temporary Work (International Relations) Visa (subclass 403) and who holds a different temporary visa at a particular time, is treated as if they hold a Temporary Work (International Relations) Visa (subclass 403) at that time.

The modification applies to salary, wages, commissions, bonuses or allowances paid on and after 24 March 2020. The modification ensures that employees under the Program continue to be taxed by application of a final withholding tax rate of 15%. It also ensures that this income is otherwise treated as non-assessable non-exempt income. As is currently the case for those holding a Temporary Work (International Relations) Visa (subclass 403), these employees under the Program will not have to lodge an income tax return unless they earn other Australian sourced income.

An entity must treat a modification as not applying to it or any other entity if the modification would produce a less favourable result for it. The Commissioner is empowered by s 370-5 of Sch 1 to TAA 1953 to make modifications, by legislative instrument, to ensure the law is administered to achieve its intended purpose or object.

S 840-905 amended by No 8 of 2019, s 3 and Sch 8 item 8, by substituting para (b)(ii), effective 1 April 2019 and applicable to income derived on or after 19 November 2016. No 8 of 2019, s 3 and Sch 8 item 11(1) contains the following application provision:

11 Continued application of the old law in relation to holders of a Special Program Visa (subclass 416)  
(1)
Despite the amendment of section 840-905 of the Income Tax Assessment Act 1997 made by item 8, that section, as in force immediately before the commencement of this item, continues to apply to income derived on or after 19 November 2016 by an individual who holds a Special Program Visa (subclass 416).

…

Para (b)(ii) formerly read:

(ii) you hold a Special Program Visa (subclass 416).

S 840-905 inserted by No 58 of 2012, s 3 and Sch 1 item 5, effective 21 June 2012.