PART 4PAYMENTS, RETURNS AND INFORMATION
CHAPTER 1PAYMENT OF TAX AND ASSOCIATED RETURNS
F78Real time returns
Real time returns of information about relevant payments67B
1
F127Subject to F129paragraph (1A), on or before making a relevant payment to an employee, a Real Time Information employer must deliver to HMRC the information specified in Schedule A1 in accordance with this regulation unless the employer is not required by regulation 66 (deductions working sheets) to maintain a deductions working sheet for any employees.
F1281A
But a Real Time Information employer—
a
which for the tax year 2014-15 meets Conditions A and B, or
b
which for the tax year 2015-16 meets Conditions A and C,
may instead for that tax year deliver to HMRC the information specified in Schedule A1 (real time returns) in respect of all relevant payments made to an employee in a tax month on or before making the last relevant payment in that month.
1B
Condition A is that, at 5th April 2014, the Real Time Information employer is one to whom HMRC has issued an employer’s PAYE reference.
1C
Condition B is that, at 6th April 2014, the Real Time Information employer employs no more than 9 employees.
1D
Condition C is that, at 6th April 2015, the Real Time Information employer employs no more than 9 employees.
2
The information must be included in a return.
3
Subject to paragraph (4), if relevant payments are made to more than one employee at the same time, the return under paragraph (2) must include the information required by Schedule A1 in respect of each employee to whom a relevant payment is made at that time.
4
If relevant payments are made to more than one employee at the same time but the employer operates more than one payroll, the employer must make a return in respect of each payroll.
5
The return is to be made using an approved method of electronic communications.
F986
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F987
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F96Employees in respect of whom employer is not required to maintain deductions working sheets67BA
1
This regulation applies if an employer makes a relevant payment to an employee in respect of whom the employer is not required by regulation 66 (deductions working sheets) to maintain a deductions working sheet.
2
The employer need not deliver the information required by regulation 67B(1) on or before making the payment.
3
The employer must deliver that information no later than the end of the period of 7 days starting with the day following the day on which the payment is made.
Employees paid in specified circumstances67BB
1
This regulation applies if an employer makes a payment to an employee and all of the circumstances in paragraph (2) apply.
2
The circumstances are that—
a
the payment includes an amount which is a relevant payment for work undertaken by the employee on—
i
the day the payment is made, or
ii
provided that the payment is made before the employee leaves the place of work at the end of the employee’s period of work, the day before the payment is made,
b
in respect of the work mentioned in sub-paragraph (a), it was not reasonably practicable for the employer to calculate the payment due before the completion of the work, and
c
it is not reasonably practicable for the employer to deliver the information required by regulation 67B(1) on making the payment.
3
The employer need not deliver the information required by regulation 67B(1) on or before making the payment.
4
The employer must deliver that information no later than the end of the period of 7 days starting with the day following the day on which the payment is made.
Regulations 67BA and 67BB: supplementary67BC
Where regulation 67BA or 67BB applies, the information required by regulation 67B(1) in respect of the relevant payment may be included in a return with the information for any other relevant payment.
Modification of the requirements of regulation 67B: notional payments67C
1
This regulation applies if an employer makes a relevant payment which is a notional payment (including a notional payment arising by virtue of a retrospective tax provision) to an employee.
F992
If the employer is unable to comply with the requirements in regulation 67B(1) to deliver the information required by that regulation on or before making the relevant payment, the employer must instead deliver the information as soon as reasonably practicable after the payment is made and in any event no later than 14 days after the end of the tax month in which the payment is made.
F95Notifications of relevant payments to and by providers of certain electronic payment methods67CA
1
A Real Time Information employer who makes a relevant payment using an approved method of electronic communications which falls to be included in a return under regulation 67B must—
a
generate a reference under paragraph (3) and include it in that return,
b
notify the service provider that the payment is a relevant payment, and
c
generate a sub-reference under paragraph (3) in respect of the relevant payment and notify the service provider of that sub-reference.
2
A service provider who receives a notification under paragraph (1)(b) must notify HMRC of the information it holds that is required for generating a reference under paragraph (3) in relation to the relevant payment.
3
A reference and sub-reference under this paragraph is to be generated using the method specified by the Commissioners for Her Majesty’s Revenue and Customs in a direction.
4
In paragraphs (1) and (2), “service provider” means the provider of the approved method of electronic communications using which the payment is made.
5
For the purposes of paragraphs (1) and (4), an “approved method of electronic communications” is any method of electronic communications which has been approved for the purposes of regulation 199 (large employers required to make specified payments electronically).
6
A direction under paragraph (3) may also—
a
specify circumstances in which paragraphs (1) and (2) are not to apply, and
b
specify the form and manner of the notifications required by paragraphs (1)(b) and (c) and (2).
Exceptions to regulation 67B67D
1
This regulation applies to—
a
an individual who is a practising member of a religious society or order whose beliefs are incompatible with the use of electronic communications,
b
a partnership, if all the partners fall within sub-paragraph (a),
c
a company, if all the directors and the company secretary fall within sub-paragraph (a), F102...
d
a care and support employer F103, and
e
an employer to whom a direction has been given under paragraph (11) ,
F131but this is subject to paragraph (2B).
2
A Real Time Information employer to whom this regulation applies may proceed in accordance this regulation instead of regulation 67B.
F1002A
Before 6th April 2014, a Real Time Information employer to whom this regulation applies may proceed as if the employer were a non-Real Time Information employer and the provisions of these Regulations apply accordingly to such an employer.
F1302B
This regulation does not apply if a Real Time Information employer within paragraph (1) makes a return using an approved method of electronic communications.
3
F104On and after 6th April 2014, a Real Time Information employer must deliver to HMRC the information specified in Schedule A1 in respect of each employee to whom relevant payments are made in a tax F132quarter unless the employer is not required by regulation 66 (deductions working sheets) to maintain a deductions working sheet for any employees and, for the purposes of this regulation, references in Schedule A1 to a relevant payment shall be read as if they were references to all the relevant payments made to the employee in the tax F132quarter.
4
The information must be included in a return.
5
The return required under paragraph (4) must be delivered within 14 days after the end of the tax F133quarter the return relates to.
6
If relevant payments have been made to more than one employee in the tax F134quarter, the return under paragraph (4) must include the information required by Schedule A1 in respect of each employee to whom a relevant payment has been made.
F1057
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F1058
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
9
In paragraph (1)(c), “company” means a body corporate or unincorporated association but does not include a partnership.
10
In paragraph (1)(d), “a care and support employer” means an individual (“the employer”) who employs a person to provide domestic or personal services at or from the employer’s home where—
a
the services are provided to the employer or a member of the employer’s family,
b
the recipient of the services has a physical or mental disability, or is elderly or infirm, and
c
it is the employer who delivers the return (and not some other person on the employer’s behalf).
F10111
Where the Commissioners for Her Majesty’s Revenue and Customs are satisfied that—
a
it is not reasonably practicable for an employer to make a return using an approved method of electronic communication, and
b
it is the employer who delivers the return (and not some other person on the employer’s behalf)
they may make a direction specifying that the employer is not required to make a return using an approved method of electronic communication.
Returns under regulations 67B and 67D: amendments67E
1
2
This paragraph applies where the F137inaccuracy relates to the information given in the return in respect of an employee under paragraph 16 or 17 of Schedule A1 (real time returns).
3
This paragraph applies where the F137inaccuracy was the omission of details of a relevant payment to an employee.
4
This paragraph applies where the F138inaccuracy arises because, as a result of a retrospective tax provision, the total amount of the relevant payments made by an employer to an employee increases for any tax year in which the employer was a Real Time Information employer.
F1405
Where an employer becomes aware of an inaccuracy in a return submitted under regulation 67B or 67D, the employer must provide the correct information in the next return for the tax year in question.
6
But if the information has not been corrected before 20th April following the end of the tax year in question, the employer must make a return under this paragraph.
7
A return under paragraph (6)—
a
must include the following—
i
the information specified in paragraphs 2 to 4, 8 to F10613, 15 and 22A of Schedule A1,
F107ii
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
iii
the value of the adjustment to the information given under paragraphs 16 or 17 of Schedule A1 in the final return under regulation 67B or 67D containing information in respect of the employee in the tax year in question,
F108iv
the tax code used by the employer in respect of the employee in the tax year in question and,
v
if paragraph (8) applies, the information specified in paragraphs 36 to F10943 of Schedule A1,
b
must be made as soon as reasonably practicable after the F141employer becomes aware of the inaccuracy, and
c
must be made by an approved method of electronic communications.
8
This paragraph applies if—
a
the F139inaccuracy is within paragraph (3),
b
the relevant payment was the first relevant payment to the employee in the employment, and
c
the information specified in paragraphs 36 to F11043 of Schedule A1 has not otherwise been provided.
9
In the application of paragraphs (6) and (7) to cases within paragraph (3), if no information was given in any returns under regulation 67B or 67D in respect of the employee in the tax year, the value of the adjustments required must be calculated as if there was a final return containing information for the employee in the year and the figure requiring adjustment was zero.
10
Paragraph (7)(c) does not apply if the employer is one to whom regulation 67D applies.
F97Failure to make a return under regulation 67B or 67D67EA
1
This regulation applies where an employer does not make a return as required by regulation 67B (real time returns of information about relevant payments) or 67D (exceptions to regulation 67B).
2
The employer must provide the information in the next return made under regulation 67B or 67D for the tax year in question.
3
If the information has not been provided before 20th April following the end of the tax year in question, the employer must make a return under this paragraph.
4
A return under paragraph (3) must—
a
include the information specified in Schedule A1,
b
be made as soon as reasonably practicable after the discovery of the failure to make the return, and
c
be made using an approved method of electronic communications.
5
If a return under paragraph (3) is not made before 20th May following the end of the tax year in question section 98A of TMA 1970 (special penalties in case of certain returns) will apply to the return F159, but this paragraph does not apply to a return in respect of the tax year 2014-15 or a subsequent tax year.
Additional information about payments67F
1
A Real Time Information employer may send to HMRC a notification if—
a
for a tax period, the employer was not required to make any returns in accordance with regulation 67B or 67D because no relevant payments were made during the tax period, or
b
the employer has sent the final return under regulation 67B or 67D that the employer expects to make—
i
in the circumstances described in paragraph 5 of Schedule A1 (real time returns), or
ii
for the tax year.
2
A notification under paragraph (1)(b) must—
F161a
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
be sent within 14 days of the end of final tax period of the tax year.
F111c
if the notification is under paragraph (1)(b)(i), include the date on which the PAYE scheme ceased
3
A notification under this regulation must—
a
state—
i
the tax year to which it relates,
ii
the employer’s HMRC office number,
iii
the employer’s PAYE reference, and
iv
the employer’s accounts office reference, and
b
be sent using an approved method of electronic communications unless the employer is one to whom regulation 67D applies.
Payment and recovery of tax by employer
Payments to and recoveries from HMRC for each tax period by Real Time Information employers67G
1
For each tax period, a Real Time Information employer must pay to, or may recover from, HMRC the amount arrived at under the formula in paragraph (4).
2
If the amount arrived at under the formula in paragraph (4) is a positive amount, the employer must pay the excess to HMRC.
3
If the amount arrived at under the formula in paragraph (4) is a negative amount, the employer may recover that amount either—
a
by deducting it from the amount which the employer is liable to pay under paragraph (2) for a later period in the tax year, or
b
from the Commissioners for Her Majesty’s Revenue and Customs.
F1473A
Where a return for a tax period contains a correction under regulation 67E(5) (returns under regulations 67B and 67D: amendments)) and paragraph (3) of this regulation applies, the negative amount is treated as having been paid to HMRC—
a
17 days after the end of the tax period in respect of which that return is delivered, where payment is made using an approved method of electronic communications, or
b
14 days after the end of the tax period in respect of which that return is delivered, in any other case.
4
The formula in this paragraph is , where—
A is the sum total of the relevant amounts for each of the employer’s employees, and
B is amount A for the previous tax period in the tax year, if any.
5
For the purposes of paragraph (4), a “relevant amount” is the amount shown under paragraph 17 of Schedule A1 (real time returns) for an employee in the most recent return made in the tax year by the employer under regulation 67B (real time returns of information about relevant payments) or 67D (exceptions to regulation 67B) which contains information about that employee.
F1125A
If the employer makes a return under regulation 67EA(3) (failure to make a return under regulation 67B or 67D) a “relevant amount” for the purposes of paragraph (4) is the amount shown under paragraph 17 of Schedule A1 (real time returns) for an employee in that return for the tax year to which that return relates.
6
In paragraph (5) “the most recent return” means the return which, as at the end of the tax period, contains the most up to date information under paragraph 17 of Schedule A1 about the employee.
7
This regulation is subject to regulations 67H (payments to and recoveries from HMRC for each tax period by Real Time Information employers: returns under regulation 67E(6)), 71 (modification of regulations 67G and 68 in case of trade dispute) and 75B (certificates under regulation 75A: excess payments).
Payments to and recoveries from HMRC for each tax period by Real Time Information employers: returns under regulation 67E(6)67H
1
This regulation applies if, during any tax period, an employer makes a return under regulation 67E(6) (returns under regulations 67B and 67D: amendments) other than by virtue of regulation 67E(4).
F1132
If the return shows an adjustment under regulation 67E(7)(a)(iii) and the value of the adjustment is a positive amount, that amount is an amount due to be paid to HMRC for the final tax period of the tax year the return relates to.
3
F114If the return shows such an adjustment and the value of the adjustment is a negative amount, that amount is an amount due to be repaid to the employer for the final tax period of the tax year the return relates to and, the employer may recover that amount—
a
by setting it off against the amount the employer is liable to pay under regulation 67G for the tax period the return was made in, or
b
from the Commissioners for Her Majesty’s Revenue and Customs.
F1484
Where the value of the adjustment is a negative amount, that amount is treated as having been paid to HMRC—
a
17 days after the end of the final tax period of the tax year the return relates to, if payment is made using an approved method of electronic communications, or
b
14 days after the end of the final tax period of the tax year the return relates to, in any other case.
F160Penalties under Schedule 55 to the Finance Act 2009
Regs. 67I-67K and cross-heading inserted (with effect in accordance with reg. 1(2) of the amending S.I.) by The Income Tax (Pay As You Earn) (Amendment No. 3) Regulations 2014 (S.I. 2014/2396), regs. 1(1), 2
C3Penalty: failure to comply with regulation 67B or 67D67I
1
For the purposes of paragraph 6C of Schedule 55 to the Finance Act 2009 (amount of penalty: real time information for PAYE), a Real Time Information employer which fails to deliver a return falling within item 4 in the Table in paragraph 1 of that Schedule in accordance with—
a
regulation 67B (real time returns of information about relevant payments);
b
regulation 67BA (employees in respect of whom employer is not required to maintain a deductions working sheet);
c
regulation 67BB (employees paid in specific circumstances);
d
regulation 67C (modification of the requirements of regulation 67B: notional payments); or
e
regulation 67D (exceptions to regulation 67B)
as the case may be, is liable to a penalty of the amount set out in paragraph (2).
2
Where a Real Time Information employer fails to deliver such a return and the number of persons employed in the period to which the return relates is—
a
no more than 9, the penalty is £100;
b
at least 10 but no more than 49, the penalty is £200;
c
at least 50 but no more than 249, the penalty is £300; and
d
at least 250, the penalty is £400.
Penalty: initial period67J
For the purposes of paragraph 6C(3), (4) and (5) of Schedule 55 to the Finance Act 2009 (initial period), the duration of the initial period is thirty days.
Penalty: first failure to deliver a return in a tax year67K
1
Paragraph 6C(4) of Schedule 55 to the Finance Act 2009 (unpenalised default) does not apply to any failure to deliver a return falling within item 4 in the Table in paragraph 1 of that Schedule in accordance with regulation 67B, regulation 67BA, regulation 67BB, regulation 67C or regulation 67D, as the case may be,—
a
by a small existing Real Time Information employer or a new Real Time Information employer in the period 6th March 2015 to 5th April 2015; or
b
for any tax year for which a Real Time Information employer operates an annual PAYE Scheme.
2
For the purposes of paragraph (1)(a)—
a
an employer is a small existing Real Time Information employer if at 6th October 2014 that employer employed no more than 49 employees; and
b
an employer is a new Real Time Information employer if it is issued with an employer’s PAYE reference after 6th October 2014.
3
For the purposes of paragraph (1)(b), a Real Time Information employer operates an annual PAYE Scheme for a tax year if for that year—
a
all the employees are paid annually;
b
all the employees are paid on the same date; and
c
the Real Time Information employer is only required under regulation 69 (due date and receipts for payment of tax) to pay HMRC annually.
F75...
Reg. 68 cross-heading omitted (6.4.2012) by virtue of The Income Tax (Pay As You Earn) (Amendment) Regulations 2012 (S.I. 2012/822), regs. 1(1), 27(a)
F73Periodic payments to and recoveries from HMRC: non-Real Time Information employersI1168
1
This regulation applies to determine how much F81a non-Real Time Information employer must pay or can recover for a tax period.
2
If A exceeds B, the employer must pay the excess to the Inland Revenue.
3
But if B exceeds A, the employer may recover the excess either—
a
by deducting it from the amount which the employer is liable to pay under paragraph (2) for a later tax period in the tax year, or
b
from the Board of Inland Revenue.
4
In this Regulation—
A is—
- a
the total amount of tax which the employer was liable to deduct from relevant payments made by the employer in the tax period, plus
- b
the total amount of tax for which the employer was liable to account in respect of notional payments made F13or treated by virtue of a retrospective tax provision as made, by the employer in that period under regulation 62(5) (notional payments);
- a
B is the total amount which the employer was liable to repay in the tax period.
5
Paragraphs (2) and (3) are subject to regulation 71 (modification in case of trade disputes).
6
Paragraph (2) is also subject to regulation 78(11) (entitlement to set off excess payments).
F307
In the application of paragraph (4) to notional payments arising by reason of the coming into force of the Finance Act 2006, the reference to section 710(7A)(a) of ITEPA 2003 shall be modified as mentioned in section 94(5)(c) of the Finance Act 2006.
Due date and receipts for payment of taxI869
1
An employer must pay amounts due under regulation F8267G(2) F115, as adjusted by regulation 67H(2) where appropriate, or 68(2)—
a
within 17 days after the end of the tax period, where payment is made by an approved method of electronic communications, or
b
within 14 days after the end of the tax period, in any other case.
F1491A
In paragraph (1), the reference to amounts due under regulation 67G(2) includes any amount the employer was liable to deduct from employees during the tax period whether or not that amount was included in any return under regulation 67B (real time returns of information about relevant payments) or 67D (exceptions to regulation 67B).
2
3
F164
In paragraph (1) “the tax period”, in relation to an amount of retrospective employment income, means the tax period immediately following the relevant time.
F145Circumstances in which payment of a lesser amount is to be treated as payment in full for the purposes of paragraph 6(2) of Schedule 56 to the Finance Act 2009C269A
1
A payment that is less than the full amount due under regulation 67G(2) (payments to and recoveries from HMRC for each tax period), as adjusted by regulation 67H (payments due and recoveries from HMRC for each tax period: returns under regulation 67E(6)) where appropriate, will for the purposes of paragraph 6(2) of Schedule 56 to the Finance Act 2009 (amount of penalty: PAYE and CIS) be treated as payment of the full amount if the difference between the full amount and the amount paid is no more than £100 (“the tolerance”), but this is subject to paragraphs (2) and (3).
2
Paragraph (1) does not apply where—
a
the payment relates to a return which is correcting information given in a return filed in respect of a relevant payment made in an earlier tax month, and
b
the return is delivered after 19th April following the end of the tax year in question.
3
If the total sum paid by the employer to HMRC for the tax period includes not only the amount due under regulation 67G(2), as adjusted by regulation 67H where appropriate, but also one or more of—
a
any earnings-related contributions (as defined by regulation 1(2) of the SSC Regulations 2001),
b
any payment under regulation 7(1) of the Income Tax (Construction Industry Scheme) Regulations 2005, or
c
any repayment due under the Student Loans Regulations,
the tolerance is applied to the total sum paid to HMRC for the tax period to which the payments relate.
Quarterly tax periodsI1370
1
This regulation applies, so that the tax period is a tax quarter, if an employer—
a
has reasonable grounds for believing that the average monthly amount will be less than £1,500, and
b
chooses to pay tax quarterly.
F111A
But this regulation does not apply, so that the tax period remains a month, in respect of amounts of retrospective employment income.
2
“The average monthly amount” is the average, for tax months falling within the current tax year, of the amounts found by the formula—
F28(P + N + L + S) − (SP + CD)
3
In paragraph (2)—
P is the amount which would be payable to the Inland Revenue under regulation F8367G F116, as adjusted by regulation 67H(2) where appropriate, or 68 F29but disregarding any amount payable in respect of retrospective employment incomeF27...;
N is the amount which would be payable to the Inland Revenue under the SSCBA and the SSC Regulations disregarding—
- a
any amount of secondary Class 1 contributions in respect of which liability has been transferred to the employed earner by an election made jointly by the employed earner and the secondary contributor for the purposes of paragraph 3B(1) of Schedule 1 to the SSCBA (transfer of liability to be borne by earner)29; F18...
- aa
F1any amount payable under retrospective contributions regulations (see paragraph 1(2) of Schedule 4 to the SSC Regulations) in respect of retrospective earnings (within the meaning of those Regulations);
- c
F18...
- a
L is the amount which would be payable to the Inland Revenue under regulation F8454(1) or, in Northern Ireland, 49(1) of the Student Loans Regulations (payment of repayments deducted to the Inland Revenue) disregarding—
S is the amount which would be payable by the employer to the Inland Revenue under sections 559 and 559A of ICTA30 (deduction on account of tax etc from payments to certain sub-contractors) and regulation 8 of the Income Tax (Sub-contractors in the Construction Industry) Regulations 199331F23...;
F12...
SP is the amount which would be payable by the employer to employees by way of statutory sick pay, statutory maternity pay, F72ordinary statutory paternity pay, additional statutory paternity payF162, statutory shared parental pay and statutory adoption pay under the SSCBA; and
CD is—
- a
if the employer is a company, the amount which others would deduct from payments to it, in its position as a sub-contractor, under section 559 of ICTA (deduction on account of tax etc from payments to certain sub-contractors);
- b
in any other case, nil.
- a
Modification of F74regulations 67G and 68 in case of trade disputeI1571
1
This regulation modifies the amount payable or recoverable by an employer under F88regulations 67G and 68 in cases where regulation 64 (trade disputes) applies—
a
by providing for the amount which would otherwise be payable by the employer for a tax period to be reduced by an amount of repayments (“R”) that cannot be made to employees in the tax period, and
b
by providing—
i
for amounts which would otherwise be payable in later tax periods to be increased, or
ii
for amounts which would otherwise be recoverable in later tax periods to be reduced,
by a total of R.
2
This regulation applies for consecutive tax periods—
a
starting with the first tax period at the end of which there is an amount calculated as due to be repaid but which is required to be withheld by regulation 64(5) (tax to be withheld during strike action), and
b
ending with the next tax period at the end of which no amount is required to be withheld by that regulation.
3
Column 3 of Table 3 shows the amount payable under regulation F8567G(2) F117, as adjusted by regulation 67H(2) where appropriate, or, as the case may be, 68(2) in the cases set out in column 2 for the first and subsequent tax periods.
1. Tax period | 2. Case | 3. Amount payable |
|---|---|---|
First tax period | if B equals or exceeds A | nil |
First tax period | any other case | A − B, reduced by P (or by so much of P as reduces the amount payable to nil) |
Subsequent tax periods | if B equals or exceeds (A + Q) | nil |
Subsequent tax periods | any other case | (A + Q) − B, reduced by P (or by so much of P as reduces the amount payable to nil). |
4
The amount (if any) recoverable under regulation F8767G F118, as adjusted by regulation 67H(2) where appropriate, or, as the case may be, 68(3) must be reduced to the extent that it includes amounts—
a
for which reduction was made under paragraph (3) in an earlier tax period, or
b
which are otherwise being recovered.
5
In this regulation—
A is—
- a
the total amount of tax which the employer was liable to deduct from relevant payments made by the employer in the tax period, plus
- b
the total amount of tax for which the employer was liable to account in respect of notional payments made by the employer in that period under regulation 62(5) (notional payments);
- a
B is the total amount which the employer is liable to repay in the tax period, not including any amounts—
- a
for which a reduction was made under paragraph (3) in an earlier tax period; or
- b
which are being recovered under paragraph (4);
- a
P is the total of amounts calculated as due to be repaid in the tax period but required to be withheld during that tax period by regulation 64(5);
Q is the total of amounts—
- a
which, because of regulation 64(5)(b), are set off against tax due to be deducted in the tax period, and
- b
which also, under paragraph (3), have reduced the amount payable in an earlier tax period.
- a
Recovery from employee of tax not deducted by employerI672
1
This regulation applies if—
a
it appears to the Inland Revenue that the deductible amount exceeds the amount actually deducted, and
b
condition A or B is met.
2
In this regulation F17and regulations 72A and 72B—
“the deductible amount” is the amount which an employer was liable to deduct from relevant payments made to an employee in a tax period;
“the amount actually deducted” is the amount actually deducted by the employer from relevant payments made to that employee during that tax period;
“the excess” means the amount by which the deductible amount exceeds the amount actually deducted.
3
Condition A is that the employer satisfies the Inland Revenue—
a
that the employer took reasonable care to comply with these Regulations, and
b
that the failure to deduct the excess was due to an error made in good faith.
4
Condition B is that the Inland Revenue are of the opinion that the employee has received relevant payments knowing that the employer wilfully failed to deduct the amount of tax which should have been deducted from those payments.
5
The Inland Revenue may direct that the employer is not liable to pay the excess to the Inland Revenue.
F155A
Any direction under paragraph (5) must be made by notice (“the direction notice”), stating the date the notice was issued, to—
a
the employer and the employee if condition A is met;
b
the employee if condition B is met.
5B
A notice need not be issued to the employee under paragraph (5A)(a) if neither the Inland Revenue nor the employer are aware of the employee’s address or last known address.
6
If a direction is made, the excess must not be added under regulation 185(5) or 188(3)(a) (adjustments to total net tax deducted for self-assessments and other assessments) in relation to the employee.
7
If condition B is met, tax payable by an employee as a result of a direction carries interest, as if it were unpaid tax due from an employer, in accordance with F150section 101 of the Finance Act 2009.
F1518
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F32Employer’s request for a direction and appeal against refusal72A
1
In relation to condition A in regulation 72(3), the employer may by notice to the Inland Revenue (“the notice of request”) request that the Inland Revenue make a direction under regulation 72(5).
2
The notice of request must—
a
state—
i
how the employer took reasonable care to comply with these Regulations; and
ii
how the error resulting in the failure to deduct the excess occurred;
b
specify the relevant payments to which the request relates;
c
specify the employee or employees to whom those relevant payments were made; and
d
state the excess in relation to each employee.
3
The Inland Revenue may refuse the employer’s request under paragraph (1) by notice to the employer (“the refusal notice”) stating—
a
the grounds for the refusal, and
b
the date on which the refusal notice was issued.
4
The employer may appeal against the refusal notice—
a
by notice to the Inland Revenue,
b
within 30 days of the issue of the refusal notice,
c
specifying the grounds of the appeal.
5
For the purpose of paragraph (4) the grounds of appeal are that—
a
the employer did take reasonable care to comply with these Regulations, and
b
the failure to deduct the excess was due to an error made in good faith.
6
If on appeal under paragraph (4) F40that is notified to the tribunal it appears to the F34tribunal that the refusal notice should not have been issued F9the tribunal may direct that the Inland Revenue make a direction under regulation 72(5) in an amount the F33tribunal determines is the excess for one or more tax periods falling within the relevant tax year.
Employee’s appeal against a direction notice where condition A is met72B
1
An employee may appeal against a direction notice under regulation 72(5A)(a)—
a
by notice to the Inland Revenue,
b
within 30 days of the issue of the direction notice,
c
specifying the grounds of the appeal
2
For the purpose of paragraph (1) the grounds of appeal are that—
a
the employer did not act in good faith,
b
the employer did not take reasonable care, or
c
the excess is incorrect.
3
On an appeal under paragraph (1) F38that is notified to the tribunal, the tribunal may—
a
if it appears F35... that the direction notice should not have been made, set aside the direction notice; or
b
if it appears F35... that the excess specified in the direction notice is incorrect, increase or reduce the excess specified in the notice accordingly.
Employee’s appeal against a direction notice where condition B is met72C
1
An employee may appeal against a direction notice under regulation 72(5A)(b)—
a
by notice to the Inland Revenue,
b
within 30 days of the issue of the direction notice,
c
specifying the grounds of the appeal.
2
For the purpose of paragraph (1) the grounds of appeal are that—
a
the employee did not receive the payments knowing that the employer wilfully failed to deduct the amount of tax which should have been deducted from those payments, or
b
the excess is incorrect.
3
On an appeal under paragraph (1) F3that is notified to the tribunal, the tribunal may—
a
if it appears F41... that the direction notice should not have been made, set aside the direction notice; or
b
if it appears F41... that the excess specified in the direction notice is incorrect, increase or reduce the excess specified in the notice accordingly.
Appeals: supplementary provisions72D
1
This regulation applies to appeals under regulations 72A(4), 72B, F6172C, 72G and 81A.
F102
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F103
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4
F8This paragraph applies if in respect of the same error by an employer in relation to condition A in regulation 72(3)—
a
more than one employee is appealing under regulation 72B; or
b
there is an appeal by an employer under regulation 72A(4) and by an employee under regulation 72B
F24...
F215
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F216
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F217
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F228
Where paragraph (4) applies or the appeal is material to the liability to tax of the employer and the employee, all the persons concerned are entitled to be parties to the appeal.
F269
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F66Conditions where regulation 72F applies72E
1
Regulation 72F applies where—
a
F142one or more employees have received a relevant payment;
b
it appears to HMRC that an amount intended to represent tax on the payment—
F143i
is likely to have been self-assessed by one or more of the employees, or
ii
has not been self-assessed, but has been paid under section 59A TMA (payments on account of income tax), section 559A of ICTA (treatment of sums deducted under s.559 (sub-contractors)) or section 62 of the Finance Act 2004 (treatment of sums deducted (sub-contractors));
c
any of conditions A, B and C is met;
d
a trigger event has occurred; and
e
a trigger event did not occur before 6th April 2008.
2
Condition A is that it appears to HMRC that the amount which the employer was liable to deduct—
a
from the relevant payment; or
b
in the case of a notional payment, from other relevant payments,
exceeds the amount actually deducted.
3
Condition B is that it appears to HMRC that the amount for which the employer was required to account under regulation 62(5) (notional payments) in respect of the relevant payment exceeds the amount actually accounted for.
4
Condition C is that—
a
tax on the relevant payment was included in a determination under regulation 80 (determination of unpaid tax and appeal against determination); and
b
the full amount of the determination is not paid within 30 days from the date on which the determination became final and conclusive.
5
The following are trigger events—
a
HMRC serve notice of a determination under regulation 80 that includes tax on the relevant payment;
b
HMRC receive a return under section 8 of TMA (personal return) which includes a self-assessment which includes tax on the relevant payment as tax treated as deducted;
c
HMRC receive—
i
an amended return under section 9ZA of TMA (amendment of personal or trustee return by taxpayer), or
ii
a claim under section 33 of TMA (error or mistake),
which includes tax on the relevant payment as tax treated as deducted;
d
HMRC receive a letter of offer.
6
In paragraph (5)—
“letter of offer” means an offer in writing by the employer to agree an amount in settlement of the employer’s liability to pay an amount that includes tax on the relevant payment;
“tax treated as deducted” has the meaning given by regulation 185(6).
7
For the purposes of this regulation tax is self-assessed if—
a
it is included in a return under section 8 of TMA which includes a self-assessment; and
b
ignoring any relevant credit, the tax is or would be assessed as payable by way of income tax.
8
In paragraph (7), “relevant credit” means—
a
a payment made under section 59A of TMA (payments on account of income tax) or 59B (payment of income tax and capital gains tax); or
b
tax deducted at source or tax treated as deducted (within the meaning given by regulation 185(6)).
Recovery from employee of tax that has been self-assessed etc.72F
1
Where this regulation applies, HMRC may direct that the employer is not liable to pay an amount of tax to them.
2
The direction may be in respect of one or more amounts that appear to HMRC to fall within regulation 72E(1)(b)(i) and (ii).
3
A direction must be made by notice to both the employer and the employee, stating—
a
the date the notice was issued;
F144b
the—
i
amount (or amounts) within regulation 72E(1)(b) to which it relates, or
ii
employment in respect of which the relevant payment within regulation 72E(1)(a) was received and in respect of which the amount within regulation 72E(1)(b)(i) is likely to have been self-assessed, and
c
which of conditions A, B and C in regulation 72E have been met.
4
A direction may be combined with one or more other directions relating to the same employer and may be made by issuing one notice to the employer, but each employee must be issued with a separate notice.
5
A notice need not be issued to the employee if neither HMRC nor the employer are aware of the employee’s address or last known address.
6
The amount specified in a notice to the employee must not be added under regulation 185(5) or 188(3)(a) (adjustments to total net tax deducted for self-assessments and other assessments) in relation to the employee.
Employee’s appeal against a direction notice72G
1
An employee may appeal against a direction notice under regulation 72F—
a
by notice to HMRC,
b
within 30 days of the issue of the direction notice,
c
specifying the grounds of the appeal.
2
For the purposes of paragraph (1) the grounds of appeal are that—
a
the employee did not receive a relevant payment;
b
the amount specified in the notice is incorrect, because all or part of it did not fall within regulation 72E(1)(b)(i) or (ii);
c
no trigger event within regulation 72E(5) occurred; or
d
a trigger event within regulation 72E(5) occurred before 6th April 2008.
3
On an appeal under paragraph (1) F52that is notified to the tribunal, the tribunal may—
a
if it appears F63... that the direction should not have been made, set aside the direction; or
b
if it appears F63... that the amount specified in the notice is incorrect, increase or reduce the amount accordingly.
Annual returns of relevant payments and tax
F79Application of regulations 73 to 7572H
Regulations 73 to 75 apply to—
a
non-Real Time Information employers,
b
Real Time Information employers in relation to tax years in which they were, for the whole of the tax year, non-Real Time Information employers, and
c
Real Time Information employers to whom HMRC has given a notice requiring a return under regulation 73 in respect of a tax year.
Annual return of relevant payments liable to deduction of tax (Forms P35 and P14)I1073
1
Before 20th May following the end of a tax year, an employer must deliver to the Inland Revenue a return containing the following information.
2
The information is—
a
the tax year to which the return relates,
b
the total amount of the relevant payments made by the employer during the tax year to all employees in respect of whom the employer was required at any time during that year to prepare or maintain deductions working sheets, and
c
the total net tax deducted in relation to those payments.
3
The return must be supported by the following information in respect of each of the employees mentioned in paragraph (2)(b).
4
The supporting information is—
a
the employee’s name,
b
the employee’s address, if known,
c
either—
i
the employee’s national insurance number, or
ii
if that number is not known, the employee’s date of birth, if known, and sex,
d
the employee’s code,
e
the tax year to which the return relates,
f
the total amount of the relevant payments made by the employer to the employee during that tax year, and
g
the total net tax deducted in relation to those payments.
5
Paragraphs (2)(c) and (4)(g) are subject to regulation 64(7) (trade disputes).
6
If an employee was taken into employment after the beginning of the tax year, the employer must also provide the total amounts of—
a
any amounts required by regulation 43(9), 52(11), 53(3) or 61(3) to be treated as relevant payments made by the employer to the employee during the tax year,
b
any amounts treated as tax deducted by the employer by any of those regulations,
c
the sum of the figures given under sub-paragraph (a) of this paragraph and paragraph (4)(f),
d
the sum of the figures given under sub-paragraph (b) of this paragraph and paragraph (4)(g).
7
The return must include—
a
a statement and declaration containing a list of all deductions working sheets which the employer was required to prepare or maintain at any time during that tax year; and
b
a certificate showing—
i
the total net tax deducted or the total net tax repaid in the case of each employee, and
ii
the total net tax deducted or repaid in respect of all the employees,
during that tax year.
8
The statement and declaration and the certificate must be—
a
signed by the employer, or
b
if the employer is a body corporate, signed either by the secretary or by a director.
9
Paragraph (8) is subject to regulation 211(5) (authentication in approved manner if return sent electronically).
10
Section 98A of TMA39 (special penalties in case of certain returns) applies to paragraph (1).
F36Amended returns of relevant payments and tax (Forms P14 and P35(RL))73A
1
This regulation applies where, as a result of a retrospective tax provision, the total amount of the relevant payments made by an employer to employees increases for any closed tax year.
2
Where this regulation applies, before 20th May following the end of the tax year in which the enactment containing the retrospective tax provision is passed, the employer must deliver to HMRC a return containing the following information.
3
The information is—
a
the tax year to which the return relates,
b
the revised total amounts of the relevant payments made, or treated as made, during the tax year to all employees in respect of whom the employer was required, or has subsequently become required, to prepare or maintain deductions working sheets for any time during that year,
c
the total net tax deducted in respect of those payments.
4
The return must be supported by the same information in respect of each of the employees mentioned in paragraph (3)(b) as is required by regulation 73(3) to support a return under that regulation.
5
The return must include—
a
a statement and declaration containing a list of all deductions working sheets which the employer was required to prepare or maintain at any time during that year, and
b
a certificate showing —
i
the total original net tax deducted or repaid in the case of each employee,
ii
the revised total net tax deducted or repaid in the case of each employee;
iii
the total original net tax deducted or repaid in respect of all the employees,
iv
the revised total net tax deducted or repaid in respect of all the employees, and
v
the difference between the figures given in paragraphs (iii) and (iv) above.
6
The statement and declaration and the certificate must be—
a
signed by the employer, or
b
if the employer is a body corporate, signed either by the secretary or by a director.
7
Section 98A of TMA (special penalties in case of certain returns) applies to a return under paragraph (2).
Annual return of relevant payments not liable to deduction of tax (Form P38A)I774
1
Before 20th May following the end of a tax year, an employer must deliver a return to the Inland Revenue in respect of every relevant employee.
2
The return must contain the following information—
a
the employee’s name,
b
the employee’s address, if known,
c
the employee’s national insurance number, if known,
d
the employee’s job title or description,
e
the tax year to which the return relates,
f
the dates during which the employee was employed in the tax year, and
g
the total amount of the relevant payments made by the employer to the employee during the tax year.
3
A “relevant employee” is one—
a
to whom relevant payments exceeding the PAYE threshold were made at any time during the tax year,
b
who was employed for more than a week, or
c
who was paid more than £100 during the tax year.
4
But the following are not relevant employees—
a
an employee included on a return under regulation 73 (Forms P35 and P14),
b
an employee who has indicated that statement A or statement B F39applies on Form P46 (see regulation 46), and to whom the employer has not made relevant payments exceeding the PAYE threshold at any time during that tax year.
Additional return in case of trade disputeI1475
1
An employer must immediately deliver an additional return to the Inland Revenue on each occasion that—
a
the employer has not made any repayment of tax withheld under regulation 64(5) (trade disputes) within 42 days after the end of the employee’s strike action, and
b
a return has been made under regulation 73 which, in accordance with regulation 64(7)(b), treats that tax as if it were repaid.
2
The return must contain the following information—
a
the tax year to which it relates,
b
such information as the Board of Inland Revenue may require for identifying each of the employees in question, and
c
the amount of tax not repaid to each of those employees.
3
The return must be accompanied by a statement containing the following information—
a
a list of all employees in respect of whom the additional return is made,
b
the amount of tax not repaid to each of those employees,
c
the total tax not repaid by the employer to those employees for that tax year.
Failure to account for deductible tax
F80Power of HMRC to issue a notice and certificate in cases where regulation 67B or 67D returns are not made, etc75A
1
This regulation applies if, 17 days or more after the end of a tax period, condition A or B or C is met.
2
Condition A is that a Real Time Information employer—
a
has not paid to HMRC any tax for that tax period,
b
has not made any returns under regulation 67B (real time returns of information about relevant payments) or 67D (exceptions to regulation 67B) in respect of the tax period, and
c
has not sent HMRC a notification under regulation 67F(1)(a) (additional information about payments),
and HMRC are not satisfied that no relevant payments have been made in the tax period.
3
Condition B is that—
a
a Real Time Information employer has paid an amount of tax for that tax period, whether or not the amount is the amount due under regulation 67G (payments to and recoveries from HMRC for each tax period by Real Time Information employers) F119as adjusted by regulation 67H(2) where appropriate, but
b
HMRC are not satisfied, after seeking the employer’s explanation, that the amount due under regulation 67G F120, as adjusted by regulation 67H(2) where appropriate is the amount which would have been due had any tax returned under regulation 67B or 67D as deducted from each of the employer’s employees during the period been the amount that the employer was liable to deduct.
4
Condition C is that a Real Time Information employer has not paid to HMRC the amount of tax due under regulation 67G F121, as adjusted by regulation 67H(2) where appropriate,.
5
HMRC, on consideration of the matters specified in paragraph (6), may—
a
specify to the best of their judgment, the amount of tax, or a combined amount, they consider the employer is liable to pay, and
b
serve notice on the employer requiring payment of that amount within 7 days of the issue of the notice (“the notice period”).
6
The matters specified in this paragraph are—
a
the employer’s record of past payments, whether of tax or combined amounts,
b
any returns made by the employer under regulation 67B or 67D in respect of the tax period,
c
any returns made by the employer under regulation 67B or 67D in respect of earlier tax periods,
d
any returns made by the employer under regulation 67E(6),
e
any returns made by the employer under regulation 73 (annual return of relevant payments liable to deduction of tax (Forms P35 and P14)) in relation to previous tax years.
7
If the notice extends to two or more consecutive tax periods in a tax year, this regulation has effect as if they were the latest period specified in the notice.
8
If, during the notice period, the employer—
a
claims that the amount paid in respect of the tax period specified in the notice represents the full amount of tax the employer was liable to deduct from each of the employer’s employees during the period, but
b
does not satisfy HMRC that this is the case,
the employer may require HMRC to inspect the employer’s PAYE records as if the employer had been required to produce those records under Schedule 36 to the Finance Act 2008 (information and inspection powers).
9
If there is an inspection by virtue of paragraph (8), the notice given by HMRC under paragraph (5) must be disregarded.
10
If the amount specified in the notice, or any part of it, is not paid during the notice period—
a
the amount unpaid is treated as an amount of tax or as including an amount of tax which the employer was liable to pay for that tax period under regulation 67G F122, where appropriate, and
b
HMRC may prepare a certificate showing how much of that amount remains unpaid.
11
Regulation 218 deals with the use of certificates as evidence that sums are due and unpaid.
Certificates under F123regulation 75A: excess payments75B
1
This regulation applies if, as a consequence of paying a certified amount of tax under regulation 75A in relation to the tax year, the total amount of tax paid to HMRC for the tax year under these Regulations by an employer exceeds the amount which would have been paid had it not been necessary for HMRC to prepare the certificate.
2
The employer is entitled to set off the excess tax against any amount which the employer is liable to pay under regulation 67G F124, as adjusted by regulation 67H(2) where appropriate, for any subsequent tax period or, if the tax year in question has ended, the excess of tax paid may be repaid.
Certificate if tax in regulation 73 return is unpaidI576
1
Paragraph (2) applies if an employer—
a
delivers a return under regulation 73 showing an amount of total net tax deducted by the employer for a tax year, and
b
does not pay that amount to the Inland Revenue before 20th April following the end of the tax year.
2
The Inland Revenue may prepare a certificate showing how much of that amount remains unpaid.
3
Regulation 218 deals with the use of certificates as evidence that sums are due and unpaid.
Return and certificate if tax may be unpaid F76: amounts due under regulation 68I377
1
This regulation applies if, 17 days or more after the end of a tax period, condition A or B is met.
2
Condition A is that—
a
an employer has not paid any tax under regulation 68 for that tax period, and
b
the Inland Revenue are unaware of the amount (if any) which the employer is liable to pay.
3
Condition B is that—
a
an employer has paid an amount of tax under regulation 68 for that period, but
b
the Inland Revenue are not satisfied that it is the full amount which the employer is liable to pay for that period.
4
The Inland Revenue may give notice to the employer requiring the employer within 14 days of the issue of the notice to deliver a return showing the amount of tax which the employer is liable to pay under regulation 68 in respect of the tax period.
5
If the notice extends to two or more consecutive tax periods in a tax year, this regulation has effect as if they were one tax period.
6
On receiving a return made by the employer under paragraph (4), the Inland Revenue may prepare a certificate showing the amount of tax which the employer is liable to pay for the tax period and how much (if any) of that amount remains unpaid.
7
Regulation 218 deals with the use of certificates as evidence that sums are due and unpaid.
Notice and certificate if tax may be unpaid F77: amounts due under regulation 68I478
1
This regulation applies if, 17 days or more after the end of a tax period, condition A or B is met.
2
Condition A is that—
a
an employer has not paid any tax under regulation 68 for that tax period, and
b
F60HMRC have reason to believe that the employer is liable to pay an amount of tax.
3
Condition B is that—
a
an employer has paid an amount of tax under regulation 68 for that tax period, but
b
F54HMRC are not satisfied, after seeking the employer’s explanation, that it is the full amount which the employer is liable to pay for that period.
4
F64HMRC, on consideration of the employer’s record of past payments F69whether of tax or of combined amounts, may—
a
specify, to the best of their judgment, the amount of tax F62or a combined amount which they consider the employer is liable to pay, and
b
serve notice on the employer requiring payment of that amount within 7 days of the issue of the notice (“the notice period”).
5
If the notice extends to two or more consecutive tax periods in a tax year, this regulation has effect as if they were the latest tax period specified in the notice.
7
8
If the amount F70... specified in the notice, or any part of it, is not paid during the notice period—
a
the amount unpaid is treated as an amount of tax F59or as including an amount of tax which the employer was liable to pay for that tax period under regulation 68, and
9
But paragraph (8) does not apply if during the notice period—
a
the employer pays the full amount of tax which the employer is liable to pay under regulation 68 for that tax period, or
b
the employer satisfies F42HMRC that no amount, or no further amount, is due for that tax period.
10
11
The employer is entitled to set off the excess F45tax against any amount which the employer is liable to pay under regulation 68 for any subsequent tax period in the tax year.
12
Paragraph (13) applies if the employer—
a
delivers the return required by regulation 73(1) after the end of the tax year, and
b
pays the total net tax which the employer is liable to pay.
13
Any excess of tax paid, and not otherwise recovered by set-off in accordance with this regulation, must be repaid.
14
Regulation 218 deals with the use of certificates as evidence that sums are due and unpaid.
Certificate after inspection of PAYE recordsI979
1
This regulation applies if there is an inspection of an employer’s PAYE records under F19Schedule 36 to the Finance Act 2008 (information and inspection powers).
2
The Inland Revenue may, by reference to the information obtained from the inspection, prepare a certificate showing—
a
the amount of tax which it appears that the employer is liable to pay for the tax years or tax periods covered by the inspection; and
b
any amount of that tax which remains unpaid.
3
Regulation 218 deals with the use of certificates as evidence that sums are due and unpaid.
Determination of unpaid tax and appeal against determinationI180
1
This regulation applies if it appears to F44HMRC that there may be tax payable for a tax year under regulation F9067G F125, as adjusted by regulation 67H(2) where appropriate, or 68 by an employer which has neither been—
a
paid to F44HMRC, nor
F891A
In paragraph (1), the reference to tax payable for a tax year under regulation 67G includes a reference to any amount the employer was liable to deduct from employees during the tax year whether or not that amount was included in any return under regulation 67B (real time returns of information about relevant payments) or 67D (exceptions to regulation 67B).
2
F49HMRC may determine the amount of that tax to the best of their judgment, and serve notice of their determination on the employer.
3
A determination under this regulation must not include tax in respect of which a direction under regulation 72(5) has been made; and directions under that regulation do not apply to tax determined under this regulation.
F483A
A determination under this regulation must not include tax in respect of which a direction under regulation 72F has been made.
4
A determination under this regulation may—
a
b
extend to the whole of that tax, or to such part of it as is payable in respect of—
i
a class or classes of employees specified in the notice of determination (without naming the individual employees), or
ii
one or more named employees specified in the notice.
5
A determination under this regulation is subject to Parts 4, 5 F71, 5AF7... and 6 of TMA (assessment, appeals, collection and recovery) as if—
a
the determination were an assessment, and
b
the amount of tax determined were income tax charged on the employer,
and those Parts of that Act apply accordingly with any necessary modifications.
F256
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Employee liability if tax unpaid after regulation 80 determinationI281
1
This regulation applies if—
a
any part of the tax determined under regulation 80 is not paid within 30 days from the date on which the determination became final and conclusive, and
b
condition A or B is met in relation to an employee.
2
Condition A is that the Inland Revenue are of the opinion that the employee in respect of whose relevant payments the determination was made has received those payments knowing that the employer has wilfully failed to deduct the amount of tax which should have been deducted from those payments.
3
Condition B is that the unpaid tax represents an amount for which the employer was required to account under regulation 62(5) (notional payments) in relation to a notional payment to the employee.
4
The Inland Revenue may direct that the employer is not liable to pay the amount of tax which appears to them should have been but was not—
a
deducted on making those relevant payments, or
b
accounted for under regulation 62(5).
F314A
If condition A or B is met, any direction under paragraph (4) must be made by notice (“the direction notice”) to the employee stating the date the notice was issued.
5
If a direction is made, the amount of tax must not be added under regulation 185(5) or 188(3)(a) (adjustments for self-assessments and other assessments) in relation to the employee.
6
Tax payable by an employee as a result of a direction carries interest, as if it were unpaid tax due from an employer, in accordance with F152section 101 of the Finance Act 2009.
F1537
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F4Employee’s appeal against direction notice81A
1
An employee may appeal against a direction notice under regulation 81(4A)—
a
by notice to the Inland Revenue,
b
within 30 days of the issue of the direction notice,
c
specifying the grounds of the appeal.
2
For the purpose of paragraph (1) the grounds of appeal are that—
a
in relation to condition A in regulation 81, the employee did not receive the payments knowing that the employer wilfully failed to deduct the amount of tax which should have been deducted from those payments,
b
in relation to condition B in regulation 81, the relevant payment was not a notional payment, or
c
the excess is incorrect.
3
On an appeal under paragraph (1) F20that is notified to the tribunal, the tribunal may—
a
if it appears F6... that the direction notice should not have been made, set aside the notice; or
b
if it appears F6... that the amount of tax specified in the direction notice is incorrect, increase or reduce the amount specified in the notice accordingly.
4
Regulation 72D applies to appeals under this regulation.
Interest
Interest on tax overdueF15482
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Interest on tax overpaidF15583
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Recovery
Recovery of tax and interestI12C184
1
In this regulation, “the unpaid amount” means any amount of tax or interest which—
b
an employee is liable to pay under regulation 72(7) or regulation 81(6).
2
Part 6 of TMA (collection and recovery) applies to the recovery of the unpaid amount F65or combined amount and any interest on it as if it were income tax charged on the employer or employee (as the case may be) but with the modification indicated in paragraph (3).
3
Summary proceedings for the recovery of the unpaid amount may be brought in England and Wales or Northern Ireland at any time before the end of the period which applies for the purposes of the regulation in question, as shown in Table 4.
1. Regulation | 2. Period |
|---|---|
Regulation 76(2) |
|
| |
Regulation 79(2)(b) | 12 months after the date of the certificate. |
Regulations 72(7) and 81(6) | 12 months after the date on which the unpaid amount became payable. |
4
Proceedings against an employer may be brought for the recovery of the unpaid amount F50or combined amount and any interest on it without distinguishing the amounts which the employer is liable to pay in respect of each employee and without specifying the employees in question.
5
6
But paragraphs (4) and (5) do not prevent the bringing of separate proceedings for the recovery of each of the amounts which the employer is liable to pay for any tax period in respect of each of the employees.
F146Continental shelf workers: provisions relating to certificates
Regs. 84A-84D and cross-heading inserted (6.4.2014) by The Income Tax (Pay As You Earn) (Amendment) Regulations 2014 (S.I. 2014/474), regs. 1, 2(2)
Application for certificate84A
1
An employer who meets the conditions in paragraph (2) may apply to HMRC for the issue of a UKCS continental shelf workers certificate.
2
The conditions are that—
a
the employer supplies or intends to supply a continental shelf worker for whom the oil field licensee is the relevant person;
b
the employer has or intends to have a contractual relationship under which the employer acts, directly or indirectly, as an agent of the oil field licensee in connection with these Regulations; and
c
the employer or an associated company has not had a certificate cancelled previously for a failure to comply with their obligations under regulation 84B.
3
An application under this regulation must be made in writing and must include—
a
the name and address of the employer and employer’s PAYE reference;
b
the name and address of a person in the United Kingdom who is authorised to accept service on behalf of the employer;
c
confirmation that the employer understands and intends to comply with their obligations contained in regulation 84B; and
d
the name, address, and employer’s PAYE reference of any associated company which is a current or former holder of a UKCS continental shelf workers certificate.
4
When the employer makes the first application under this regulation, the employer may also comply with the obligation under regulation 84B(e) by including those details (if known) in the application.
5
An application made under this regulation may be combined with an application made under regulation 114A of the SSC Regulations.
6
Upon receipt of an application under this regulation, an officer of Revenue and Customs may, if they are satisfied the conditions in paragraph (2) are met, issue a UKCS continental shelf workers certificate.
7
A UKCS continental shelf workers certificate must include—
a
the name of the UKCS continental shelf workers certificate holder;
b
the employer’s PAYE reference of the UKCS continental shelf workers certificate holder; and
c
the date on which the certificate is issued.
8
A UKCS continental shelf workers certificate may be issued to—
a
the person authorised to accept service on behalf of the employer;
b
the employer; or
c
both the person authorised to accept service on behalf of the employer and the employer.
9
A certificate may be combined with a certificate issued under regulation 114A of the SSC Regulations.
10
Where an employer ceases to meet the conditions in paragraph (2) or to comply with its obligations under regulation 84B, or regulation 114B of the SSC Regulations, an officer of Revenue and Customs may, by notice in writing to the person authorised to accept service on behalf of the employer, cancel the UKCS continental shelf workers certificate from the date specified in the notice of cancellation.
11
The date specified in paragraph (10) may not be earlier than 10 working days after the date of the notice.
12
A notice under paragraph (10) may be combined with a notice under regulation 114A of the SSC Regulations.
13
In this regulation “associated company” means any company within the meaning of section 449 of the Corporation Tax Act 2010.
UKCS continental shelf workers certificate holder: obligations84B
1
A UKCS continental shelf workers certificate holder must—
a
make such deductions, returns and repayments as are required of a relevant person;
b
keep written records of—
i
the name, date of birth, and national insurance number of the continental shelf workers supplied;
ii
the name, registered office and oil field licence number of the oil field licensee to whom each of the workers were supplied;
iii
the offshore installation to which each of the workers were supplied; and
iv
the dates between which the workers worked on the offshore installation;
c
keep the records required by sub-paragraph (b) for a period of 6 years from the end of the tax year to which they relate;
d
where an officer of Revenue and Customs requires them in writing to do so, provide copies of the records required by sub-paragraph (b) to HMRC within 30 days of the date of the request; and
e
before supplying the oil field licensee with continental shelf workers for the first time, inform HMRC in writing of the details of the oil field licensee including name, business address, and oil field licence number of the oil field licensee.
2
In this regulation “offshore installation” means a structure which is, is to be, or has been, put to a relevant use while in water but a structure is not an offshore installation if—
a
it has permanently ceased to be put to a relevant use,
b
it is not, and is not to be, put to any other relevant use, and
c
since permanently ceasing to be put to a relevant use, it has been put to a use which is not a relevant use.
3
In paragraph (2) a use is a relevant use if it is—
a
for the purposes of exploiting mineral resources,
b
for the purposes of exploration with a view to exploiting mineral resources,
c
for the storage of gas in or under the shore or the bed of any waters,
d
for the recovery of gas so stored,
e
for the conveyance of things by means of a pipe,
f
mainly for the provision of accommodation for individuals who work on or from a structure which is, is to be, or has been put to any of the above uses while in the water,
g
for the purposes of decommissioning any structure which has been used for or in connection with any of the relevant uses above.
4
For the purposes of paragraphs (3) and (4) a structure is put to use while in water if it is put to use while—
i
standing in any waters,
ii
stationed (by whatever means) in any waters, or
iii
standing on the foreshore or other land intermittently covered with water.
5
For the purposes of paragraphs (2), (3) and (4) a “structure” includes a ship or other vessel except where it is used wholly or mainly—
a
for the transport of supplies;
b
as a safety vessel;
c
for a combination of (a) and (b); or
d
for the laying of cables.
UKCS oil field licensee certificate84C
1
Where a UKCS continental shelf workers certificate holder has notified HMRC that the employer intends to supply continental shelf workers to an oil field licensee an officer of Revenue and Customs must issue a UKCS oil field licensee certificate to the oil field licensee.
2
The UKCS oil field licensee certificate must include—
a
the name of the oil field licensee;
b
the registered office of that oil field licensee;
c
the oil field licence number;
d
the name of the UKCS continental shelf workers certificate holder;
e
the date on which it is issued; and
f
a description of the continental shelf workers to whom it applies.
3
Where a UKCS oil field licensee certificate is in force the holder of that certificate is not liable to make deductions in respect of any continental shelf worker of a description set out in the certificate.
4
If a UKCS continental shelf workers certificate is cancelled by an officer of Revenue and Customs that officer must also, by notice in writing, cancel the UKCS oil field licensee certificate.
5
A notice under paragraph (4) must—
a
be sent on the same day as the notice cancelling the UKCS continental shelf workers certificate;
b
specify the date of cancellation of the UKCS oil field licensee certificate; and
c
notify the oil field licensee that it is liable to meet its obligations as a relevant person.
6
The date of cancellation of the UKCS oil field licensee certificate must be the same date as that specified in the UKCS continental shelf workers certificate cancellation notice.
7
In this regulation “UKCS oil field licensee certificate” means a certificate issued under paragraph (1).
Interpretation of regulations 84A to 114C84D
In regulations 84A to 84C—
“oil field licensee” means the holder of a licence under Part 1 of the Petroleum Act 1998 in respect of the area in which the duties of the continental shelf worker’s employment are performed;
“UKCS continental shelf workers certificate” means a certificate issued under regulation 84A.
Regs. 67B-67H and cross-headings inserted (6.4.2012) by The Income Tax (Pay As You Earn) (Amendment) Regulations 2012 (S.I. 2012/822), regs. 1(1), 27(b) (with regs. 54-57)