EMPLOYMENT TAXES

1. EMPLOYMENT TAXES Anne Gregory-Jones: haysmacintyre Partner0207 969 5520email: agregory-jones@haysmacintyre.com

2. Employment Tax • P11D and Dispensations • PAYE Settlement Agreements • Salary Sacrifice • Employment Status • Termination and Compromise Agreements

3. P11D issues and Dispensation

4. P11D Issues Responsibilities: • Report to HMRC fully and accurately • Maintain the appropriate records • Meet statutory deadlines for submission of forms and payments • Provide copy forms to employees and ex-employees if they request one.

5. P11D Issues Where do you Start? • Do you need to complete P11D’s • Do you give your staff any benefits? • Do you reimburse business expenses or provide those services to your employees?

6. P11Ds Who needs a P11D • Employers must report to HMRC expenses payments, benefits and facilities provided to directors and employees who earn at a rate of £8,500 or more per year • Employee information is reported on forms P11D or a form P9D is used for directors or employees who earn at a rate of less than £8,500 per year. • Employers declaration and Class 1A NIC return is form P11D(b) • Statutory deadlines 6 July (forms) and 19 July (Class 1A payment)

7. P11D Issues What is reportable on a P11D

8. P11D Issues Reportable items: a) Assets transferred b) Payments made on behalf of employee# c) Vouchers and credit cards • Accommodation • Mileage allowance in excess of exempt assets • Cars and fuel • Vans • Interest free loans • Private medical • Relocation expenses • Services supplied • Assets used by employee • Others • Expense payments made to employee

9. P11D Issues Expenses & Benefits • Key area in employer compliance is expense control and benefit management • Ensure robust policies are in place • Information must be readily available to those preparing P11Ds • Helps to have a consistent approach • Tax and NIC treatment of certain costs can vary – some costs will need to be processed through payroll

10. P11D Issues Expenses Policy • What should it cover? • Who, what, when, where and why • Every organisation will have different needs • Revise it as your activities, needs or other changes require • Make it readily available to staff, including revised versions

11. P11D issues Expense Claims • Well designed claim form helps • Enough detail to satisfy your needs and those of HMRC • Reason for expense • Entertaining – staff or business? • Cumulative mileage record for private car drivers - Claim authorisation must be independent • Paid through expenses or payroll

12. Employee P11D reporting Dispensations • P11D Reporting dispensation will remove the need to report business expenses. • If you have one check what it covers, or if not • Consider applying for one • Agreement in force until revoked by HMRC • HMRC are likely to review every five years

13. P11D Dispensation Typical items: • Business travel • Subsistence and accommodation payments whilst travelling on business • Business entertaining • Professional subscriptions • Business calls – home or mobile

14. PAYE SETTLEMENT AGREEMENT‘PSA’

15. PAYE Settlement Agreement (PSA) • Mechanism for paying some liabilities on behalf of employees • Types of expenses covered • Annual Agreement • Differences between tax and National insurance

16. PAYE Settlement Agreement • Apply for your agreement before the beginning of the tax year if possible • Calculations will be due on date given in agreement, usually 31 July or 31 August following tax year and • Payment is due by 19 October or 22 October if paying electronically

17. Salary Sacrifice

18. Salary Sacrifice How the Scheme Works • Employee and Employer agree to vary the employer’s contract of employment • Employee sacrifice/exchanges a portion of salary in return for a benefit which is either exempt from tax or tax efficient • The result is that the employee suffers less tax and/or NIC and the employer makes Class 1 NIC savings

19. Salary Sacrifice For a salary sacrifice to be effective two conditions must be met - The potential future remuneration must be given up before it is treated as received for tax or NIC purposes - the true construction of the revised contractual arrangement between employer and employee must be that the employee is entitled to lower cash remuneration and a benefit

20. Salary Sacrifice • Tax and legal advice required • An agreement must be put in place to vary the contractual terms – does not necessarily have to be in writing but it is advisable to do so for the avoidance of doubt and to defend any HMRC challenge

21. Salary Sacrifice Effects Employee Needs to Consider • Lower salary • State pension and benefits • Mortgage applications • Employer pension • Inadvisable to sacrifice below LEL for NIC • Cannot sacrifice below NMW

22. Salary Sacrifice Typical Benefits • Childcare Vouchers • Bike to Work Scheme • Mobile Phones • Work Related Training • Workplace Parking • Low Emission Cars • Employee Pension Contributions

23. Salary Sacrifice Employee Pension Contributions • Tax relief on employee contributions but suffer Class 1 NIC • Employer Contributions suffer no Class 1 NIC • Using salary sacrifice it is possible to convert employee contributions into employer contributions

24. Salary Sacrifice Example Saving • 25 employees • Average salary £25,000 • 5% employee pension contribution • Class 1 NIC employer and employee at 25.8% • Annual NIC Savings £8,062

25. Salary Sacrifice Pension Auto-Enrolment • The government is intending to introduce new legislation to make it compulsory for employers to enrol eligible workers into a qualifying workplace pension scheme and make contributions to that scheme • Employers can choose which scheme to use provided it meets certain criteria or they can use the NEST scheme

26. Pensions Auto-Enrolment Due to be implemented between 1 October 2012 and October 2016 • 350-499 employees 1 Jan 2014 • 250-349 1 Feb 2014 • 240-249 1 April 2014 • 150-239 1 May 2014 • 90-149 1 June 2014 • 50-89 1 July 2014 • Less than 50 Varying dates from March 2014

27. Contributions • Minimum contribution 8% of qualifying earnings between £5,035 & £33,540 (QE) of which employer must pay a minimum of 3% • Minimum contribution levels phased in between Oct 2012 and Oct 2017 • Oct 2012 to Sept 2016 – total minimum of 2% of QE with at least 1% from the employer • Oct 2015 to Sept 2017 total minimum of 5% of QE with at least 2% from the employer • From Oct 2017 total minimum of 8% of CE with at least 3% from the employer

28. Eligible Worker • Is 22 years or older, but • Under State Pension Age (SPA): • Works or ordinarily works in Great Britain, and • Earns more than the income tax personal allowance (£7,475 in 2011/12)

29. Opting Out • Employees will be able to opt out of their employer’s scheme if they chose not to participate • Employees who give notice during the formal opt -out period will be put back in the position they would have been in if they had not become members in the first place • This may include a refund of any contributions taken following automatic enrolment

30. Salary Sacrifice for Auto-enrolment • It will be beneficial to use this scheme for employees who are auto-enrolled • Using a Smart salary sacrifice scheme can help with administration • Smart salary sacrifice schemes are similar to the auto enrolment opt out, the employee will be in the scheme unless they opt out

32. Employment Status

33. Employment Tax - Status What is the status of the individual? • Your Employee – Permanent • Your Employee – Temporary/Casual • Worker – Agency • Freelancer, Self Employed • Volunteer • Voluntary Worker • Intern

34. Employment Status Overview • Grey area • Part of HMRC employer compliance • Review • Fact based

35. Employment Status The tests • Developed through tax and employment law cases • Qualitative not quantitative • Interpretation

36. Employment Status Consequences • Employers liability • PAYE and NIC for 4 years • Interest + penalties • Offset only in certain circumstances

37. Employment Status Your obligations • To determine employment status – employed or self employed? • Where employed pay through payroll • Where self-employed • Evidence self employed status • Consider whether caught by NIC • Categorisation of earners • Periodic review of status as thing change

38. Employment status Indicators • Mutuality of obligation • Integration • Control • Equipment • Financial risk • Number of other clients • Substitution rights

39. Employment status Indicator tool • Developed for the construction industry • Demonstrates due diligence • Evidence • Potentially provides inconclusive results

40. Hallmarks of Employees • Obliged to turn up for work • Integrated into the employers organisation • Controlled by the employer • Provided with equipment • Paid a set rate, bears no financial risk • Cannot send someone else to perform the work • May have other jobs

41. Hallmarks of Self employed Status • Individual not obliged to accept work and hirer not obliged to offer it • Should not be integrated into the organisation (see next slide) • Should not be under the control of the hirer • Should provide their own equipment • Should be subject to some financial risk • Helpful if they have other clients • Substitution key indicator – sending someone else to perform the service is indisputable evidence of self employed status

42. Intention of the Parties • Tax case Ian Mitchell v HMRC • Appeal against decision and determinations for NIC and PAYE • Taxpayer won • Finely balanced case • Intention of the parties swung decision in taxpayer’s favour • Put a contract in place!

43. Volunteer 1 • For the purposes of volunteering policies the Cabinet Office defines volunteering and volunteering opportunities as any non-compulsory activity which involves spending time, unpaid, doing something which is of benefit to others (excluding relatives), society or the environment."

44. Volunteer 2 • Volunteers do not have any contract of employment or contract to perform work or provide services. They are not workers and therefore are not covered by the National Minimum Wage Act 1998. This means they do not qualify for the national minimum wage (NMW)

45. Voluntary Worker 2 • The difference between the volunteer and voluntary worker is that voluntary workers have the hallmarks of workers, there is an expectation that they will perform the work ++

46. Intern • For the purposes of a charity an intern is a voluntary worker

47. Volunteers, Voluntary Workers and Interns – What’s the Issue? • Retain voluntary worker status • Do not compromise that by paying the individuals or providing them with any form of reward • Reimbursement of expenses incurred in the course of the volunteering is fine • Travel to and from the place of volunteering and travel in the course of the volunteering

48. Termination

49. Termination packages • resignation • redundancy • compromise agreement • tribunal/damages

50. Termination packages • redundancy • section 139 Employment Rights Act 1996 • HMRC – “reduction in need for employees” • compulsory or voluntary