Tax, super and pizza – the perfect combination

Pop quiz: Are pizza delivery drivers, who are required to use their own vehicle and are just paid per delivery, employees for the SGAA?

ATO Interpretative Decision 2014/28 says they are. It concludes they are common law employees as the vehicle is not an “overriding factor when considering the arrangement as a whole.”

This is a bit strange as “the whole” included they had an ABN, could work for other pizza deliverers, could refuse shifts, invoiced for their work and were paid on a per delivery basis (paid for results).

Even stranger is that in the case of Vabu Pty Limited v. Federal Commissioner of Taxation (1996) 96 ATC 4898; (1996) 33 ATR 537 courier drivers who supplied and maintained their own motor vehicles were held not to be employees at common law (incredibly later the High Court in Hollis v. Vabu Pty Ltd (2001) 207 CLR 21 said the same people were employees when looking at a different Act).

But the Commissioner states these pizza deliverers are held out to be part of the pizza business and courier companies just deliver, but the pizza company makes the product to be delivered as well.

But the real reason the Commissioner states pizza deliverers are employees is the decision in the Administrative Appeals Tribunal matter of Erini Hellen Panagis v. Secretary, Department of Social Security [1997] AATA 66.

Remember, AAT decisions are not binding so the Commissioner has to say his position is in accordance with this decision, not that his position is based on this decision.

This AAT decision also concerned pizza delivery drivers who provided their own motor vehicles and were responsible for paying all expenses associated with the delivery of the pizza. The Tribunal Member concluded this was just casual employment, and not and independent contractor.

Lesson: It is really hard to get the employee/ contractor question right. The Commissioner says up to 20% of all payroll audits find at least one mistake of this type.

Tip your pizza deliverer. They are about to get hit with PAYGW and SGC…

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About Ken Mansell

As a stay at home Dad most of the week this is my way of pretending I am still the tax counsel of ASX and SEC listed companies, working at big 4 firms, working at the Federal Treasury, on the Henry Review and at Parliament House for the previous government.
This entry was posted in Cases, Rulings, Super. Bookmark the permalink.

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