Employment issues (tax)
The National insurance contributions (NICs) regime is complex and represents a significant 'tax' on employers, employees and the self employed. It is very easy not to pay the correct amount of contributions. If your business is in the Coventry area we, at Angels Solicitors LLP, can advise you on NICs and help you with any problems.
National insurance contributions (NICs) are essentially a tax on earned income. The NICs regime divides income into different classes: Class 1 contributions are payable on earnings from employment, while the profits of the self-employed are liable to Class 2 and 4 contributions.
National insurance is often overlooked yet it is the largest source of government revenue after income tax.
We highlight below the areas you need to consider and identify some of the potential problems. Please contact us for further specific advice.
Scope of NICs
Employees are liable to pay Class 1 NICs on their earnings. In addition a further secondary contribution is due from the employer.
For 2018/19 employee contributions are only due when earnings exceed a 'primary threshold' of £162 per week. The amount payable is 12% of the earnings above £162 up to earnings of £892 a week, the Upper Earnings Limit (UEL). In addition there is a further 2% charge on weekly earnings above the UEL. Secondary contributions are due from the employer of 13.8% of earnings above the 'secondary threshold' of £162 per week. There is no upper limit on the employer's payments. For 2017/18 the primary and secondary thresholds are £157 per week and the UEL is £866.
Employer NICs for the under 21s
Employer NICs for those under the age of 21 are reduced from the normal rate of 13.8% to 0%. For the 0% rate to apply the employee will need to be under 21 when the earnings are paid.
This exemption will not apply to earnings above the Upper Secondary Threshold (UST) in a pay period. The UST is set at the same amount as the UEL, which is the amount at which employees' NICs fall from 12% to 2%. The weekly UST is £892 a week for 2018/19 up from £866 a week in 2017/18. Employers will be liable to 13.8% NICs beyond this limit. The employee will still be liable to pay employee NICs.
NICs for apprentices under 25
Employer NICs are also reduced to 0% for apprentices under 25 who earn less than the upper secondary threshold (UST) which is £892 per week and £46,350 per annum for 2018/19 (up from £866 per week and £45,000 per annum for 2017/18). Employers are liable to 13.8% NICs on pay above the UST. Employee NICs are payable as normal.
An apprentice needs to:
- be working towards a government recognised apprenticeship in the UK which follows a government approved framework/standard
- have a written agreement, giving the government recognised apprentice framework or standard, with a start and expected completion date.
Employers need to identify relevant apprentices and generally assign them NICs category letter H to ensure the correct NICs are collected.
Employers need to ensure they amend the contributions letter when the apprenticeship ends or the employee turns 25.
Benefits in kind
Employers providing benefits such as company cars for employees have a further NICs liability under Class 1A. Contributions are payable on the amount charged to income tax as a taxable benefit.
Most benefits are subject to employer's NICs. The current rate of Class 1A is the same as the employer's secondary contribution rate of 13.8% for benefits provided.
NICs are due from the self-employed as follows:
- flat rate contribution (Class 2)
- variable amount based on the taxable profits of the business (Class 4).
From 6 April 2015 liability to pay Class 2 NICs arises at the end of each year, generally collected as part of the final self assessment payment.
The amount of Class 2 NICs due is calculated based on the number of weeks of self-employment in the year and calculated at a rate of £2.95 per week for 2018/19 (£2.85 per week for 2017/18).
Self employed individuals with profits below the Small Profits Threshold of £6,205 are not liable to Class 2 NICs but have the option to pay Class 2 NICs voluntarily at the end of the year so that they may protect their benefit rights.
For 2018/19 Class 4 is payable at 9% on profits between £8,424 and £46,350. In addition there is a further 2% on profits above £46,350. The thresholds are £8,164 and £45,000 for 2017/18.
Abolition of Class 2 NICs
In a change to the date originally announced, the government has confirmed that from 6 April 2019 Class 2 contributions will be abolished and Class 4 contributions reformed to include a new threshold (to be called the Small Profits Limit).
Access to contributory benefits for the self-employed is currently gained through Class 2 NICs. After abolition, those with profits between the Small Profits Limit and Lower Profits Limit will not be liable to pay Class 4 contributions but will be treated as if they have paid Class 4 contributions for the purposes of gaining access to contributory benefits. All those with profits at or above the Class 4 Small Profits Limit will gain access to the new State Pension, contributory Employment and Support Allowance and Bereavement Benefit.
Those with profits above the Lower Profits Limit will continue to pay Class 4 contributions.
Class 3 voluntary contributions
Flat rate voluntary contributions are payable under Class 3 of £14.65 per week for 2018/19. They give an entitlement to basic retirement pension and may be paid by someone not liable for other contributions in order to maintain a full NICs record.
From 6 April 2018 Class 3 contributions, which can be paid voluntarily to protect entitlement to the State Pension and Bereavement Benefit, will be expanded to give access to the standard rate of Maternity Allowance and contributory Employment and Support Allowance for the self-employed.
National Insurance - Employment Allowance
The Employment Allowance is available to many employers and can be offset against their employer Class 1 NICs liability. The amount of the Employment Allowance is £3,000 from 2016/17 onwards.
There are some exceptions for employer Class 1 liabilities including liabilities arising from:
- a person who is employed (wholly or partly) for purposes connected with the employer's personal, family or household affairs
- the carrying out of functions either wholly or mainly of a public nature (unless charitable status applies), for example NHS services and General Practitioner services
- employer contributions deemed to arise under IR35 for personal service companies.
From April 2015 the availability of the allowance was extended to those employing care and support workers. Please contact us if this may be relevant to you as there are specific conditions which must be satisfied.
There are also rules to limit the employment allowance to a total of £3,000 where there are 'connected' employers. For example, two companies are connected with each other if one company controls the other company.
The allowance is limited to the employer Class 1 NICs liability if that is less than the Employment Allowance.
The allowance is claimed as part of the normal payroll process. The employer's payment of PAYE and NICs is reduced each month to the extent it includes an employer Class 1 NICs liability until the Employment Allowance limit has been reached.
From 6 April 2016, companies where the director is the sole employee earning above the upper secondary threshold are no longer able to claim the Employment Allowance.
Time of payment of contributions
Class 1 contributions are payable at the same time as PAYE ie monthly. Class 1A contributions are not due until 19 July (22nd for cleared electronic payment) after the tax year in which the benefits were provided.
It is therefore important to distinguish between earnings and benefits.
Class 1 earnings will not always be the same as those for income tax. Earnings for NI purposes include:
- salaries and wages
- bonuses, commissions and fees
- holiday pay
- certain termination payments.
Problems may be encountered in relation to the treatment of:
- expense payments
Expense payments will generally be outside the scope of NI where they are specific payments in relation to identifiable business expenses. Round sum allowances give rise to a NI liability.
In general benefits are not liable to Class 1 NICs. There are however some important exceptions including:
- most vouchers
- stocks and shares
- other assets which can be readily converted into cash
- the payment of an employee's liability by an employer.
Directors are employees and must pay Class 1 NICs. However directorships can give rise to specific NICs problems. For example:
- directors may have more than one directorship
- fees and bonuses are subject to NICs when they are voted or paid whichever is the earlier
- directors' loan accounts where overdrawn can give rise to a NICs liability.
We can advise on the position in any specific circumstances.
Employed or self-employed
The NICs liability for an employee is higher than for a self-employed individual with profits of an equivalent amount. Hence there is an incentive to claim to be self-employed rather than employed.
Are you employed or self-employed? How can you tell? In practice it can be a complex area and there may be some situations where the answer is not clear.
In general terms the existence of the following factors would tend to suggest employment rather than self-employment:
- the 'employer' is obliged to offer work and the 'employee' is obliged to accept it
- a 'master/servant' relationship exists
- the job performed is an integral part of the business
- there is no financial risk for the 'employee'.
It is important to seek professional advice at an early stage and in any case prior to obtaining a written ruling from HMRC.
If HMRC discover that someone has been wrongly treated as self-employed, they will re-categorise them as employed and are likely to seek to recover arrears of contributions from the employer.
HMRC carry out compliance visits in an attempt to identify and collect arrears of NICs. They may ask to see the records supporting any payments made.
HMRC have the power to collect any additional NICs that may be due for both current and prior years. Any arrears may be subject to interest and penalties.
Please contact us for advice on NICs compliance and ways to minimise the effect of a HMRC visit.
How we can help
Whether you are an employer or employee, employed or self-employed, awareness of NICs matters is vital.
HMRC have wide enforcement powers and anti-avoidance legislation available to them. Consequently it is important to ensure that professional advice is sought so that all compliance matters are properly dealt with.
If your business is in the Coventry area we would be delighted to advise on any National Insurance compliance matters relevant to your own circumstances so please contact us at Angels Solicitors LLP.