Tax Bulletin 069/04 provided guidance for employers regarding tips, gratuities and service charges. That bulletin included guidance on the National Insurance contributions treatment of tips, gratuities and service charges. Following further consideration that guidance has been revised. This note sets out the changes.
A revised booklet (E24) ‘Tips, Gratuities, Service Charges and Troncs: A guide to Income tax, National Insurance contributions, National Minimum Wages issues and VAT (PDF 78K) has been included on the Employer’s website since February 2005. The E24 booklet is aimed at providing guidance covering the payment of tips gratuities and service charges that are paid in the catering and service industries.
This article provides additional explanation covering the changes in the way we view the National Insurance contributions position. It may be helpful to read this note in conjunction with the revised E24 booklet. In this guidance and the E24 booklet, where the word ‘tips’ is used it is intended to refer to payments of tips, gratuities and voluntary service charges.
HM Revenue and Customs has changed the way it interprets the exemption from National Insurance contributions, which is contained at paragraph 5 of Part 10 of Schedule 3 to the Social Security (Contributions) Regulations 2001.
HMRC’s original view was that the secondary contributor (employer) could be said to ‘allocate the payment, directly or indirectly to the earner’ in a wide range of circumstances. But we now believe the phrase should be interpreted in a more restricted fashion so that it only applies to a narrower set of circumstances. Broadly, we now believe that, to allocate the payment the employer must directly (or indirectly through another person) determine which employees receive payments and how much each should receive.
We have also looked again at how payments which form part of the employer’s contractual arrangements affect liability for National Insurance contributions. And at how payments which count for National Minimum Wage purposes affect liability for National Insurance contributions.
The following notes look at all these issues. They refer back to the guidance in the revised booklet E24. They deal with the NMW position first, then the employer’s contractual arrangements, then guidance relating to the term ‘allocate’.
Booklet E24 (2005) explains that any payments that count for NMW purposes cannot be accepted as being tips.
The Special Commissioners in the Channel 5 TV Group Ltd v Peter Morehead case, SpC369 considered the meaning of gratuity or offering, which is the term used at paragraph 5 of Part 10 of Schedule 3 to the Social Security (Contributions) Regulations 2001. In paragraph 41 of that decision it said that a gratuity means “a voluntary payment given in return for services rendered where the amount of the payment depends on the donor and where there is no obligation on the part of the donor to make the payment”. It also stated that the word gratuity includes, but is not restricted to a tip.
In line with the decision in the case quoted above, HMRC’s view is that the payment of a tip involves the absence of any legal obligation to make the payment in question. Accordingly where the employer makes payments in order to comply with his statutory NMW obligations those payments, regardless of the source of the payments, are not voluntary payments. And in order to count for NMW purposes the payment must be paid by the employer through his payroll and reflected on the employer’s payslips to his employees.
Therefore any payment that the employer makes which counts for NMW purposes cannot be regarded as a gratuity. Accordingly any such payment cannot be disregarded from earnings for NICs purposes under the exemption at paragraph 5 of Part 10 of Schedule 3 to the Social Security (Contributions) Regulations 2001.
Booklet E24 (2005) explains that any payments made by the employer where he has a legal obligation to make the payment in question (such as a payment that is part of a contractual arrangement or undertaking) cannot be accepted as being a tip.
So where the employer promises guarantees or underwrites payment, he has a legal obligation to make the payment in question to the extent of the amount he promises, guarantees or underwrites. That remains so even where a third party actually meets the obligation, for example where a troncmaster distributes tronc money. Payments based on a contractual obligation to pay are not, of course, voluntary payments and so cannot be regarded as a gratuities. Accordingly any such payment cannot be disregarded from earnings for NICs purposes under the exemption at paragraph 5 of Part 10 of Schedule 3 to the Social Security (Contributions) Regulations 2001.
Booklet E24 (2005) explains that payments of tips by troncmasters will not attract liability for NICs so long as either one of two conditions are met, viz
HMRC’s view on how the second condition should be understood has changed we now think that in determining whether the employer was allocating the payments it is necessary to consider all aspects: firstly, which employees should receive payment and secondly, how much each should receive.
If the employer determines both these matters directly, or indirectly through another person, he will be allocating the payments and the second condition cannot be satisfied. If someone else, such as a troncmaster, genuinely determines these matters the second condition can be satisfied.
Broadly the same examples used in the original booklet E24 have been used in the revised E24 (2005). This has been done to provide continuity in the guidance provided. The notes below identify changes in the examples in the revised E24.
These examples illustrate how payments of tips collected and distributed by the employer fail both of the conditions for exemption. There has been no material change to the guidance in relation to these examples.
This example illustrates a situation where the employer guarantees a minimum payment. Therefore the payment is based on an obligation to pay and is not a voluntary payment. To the extent of the employer’s contractual obligation those payments cannot be considered tips for the purposes of the exemption from NICs.
Any payments made in excess of the employer obligation are not part of his contractual obligation. But the payments remain liable for NICs because the employer is involved in collecting and distributing the tips as well as allocating them to his employees. So the payments cannot benefit from the NICs exemption.
There has been no material change to the outcome of this example. The revised example 8 in E24 (2005) does however clarify the basis for NICs liability where the payments being distributed by the employer meet his contractual obligations.
This example illustrates circumstances where the employer is not involved in allocating tips distributed through a tronc. Accordingly no National Insurance contributions are due.
The employer passes all tips paid by cheque, credit/debit card to a troncmaster. The employer has appointed the troncmaster, but she distributes the tips according to an allocation framework determined by a staff committee. The staff committee determines which employees should receive payment and how much each should receive independently of the employer.
The first condition for exemption for liability for NICs cannot be satisfied because the payments by cheque, credit/debit card were initially made to the employer. However, the second condition can be satisfied. The employer is not directly determining which employees should receive payment and how much each should receive. The staff committee is doing that. Although the employer has appointed the troncmaster it is the staff committee who determine the allocation of the tips. Also the employer cannot be said to be indirectly allocating the tips through the troncmaster.
There has been no material change to the outcome of this example. However the revised example 9 in E24 (2005) does illustrate the point that the employer can appoint the troncmaster and still not be involved in indirectly allocating tips paid through the tronc.
This example illustrates circumstances where the employer is involved in indirectly allocating tips distributed through a tronc. Accordingly National Insurance contributions will be due.
The circumstances are the same as example 9 except that the employer sets the policy for determining the allocation of the tips. In appointing the troncmaster and requiring her to carry out that policy, it is effectively the employer who is allocating the tips albeit indirectly through another person.
There has been no material change to the outcome of this example. However, the facts have been expanded to show the employer sets the policy that determines who receives payment and how much each employee should receive. This is in addition to appointing the troncmaster and operating his policy indirectly through that person.
The previous guidance indicated that, where the employer appoints the troncmaster, that was enough to hold that the employer was indirectly allocating the tipsHMRC now takes the view that, where the employer appoints the troncmaster, that might be indicative of the influence he is able to bring to bear. But it would be necessary to look beyond the appointment of the troncmaster for evidence to confirm it is the employer who effectively determines who should receive what by way of tips.
This example illustrates a situation where the employer influences the amount available for distribution. For example by retaining some of the tips he receives by cheque or credit/debit card to cover commissions or expenses before passing it to the tronc for allocation.
Previously, in these circumstances, the guidance stated that the employer was indirectly allocating the tips because he was interfering with the amount available to the tronc.
HMRC has now changed its view of this situation. It is clear the employer’s actions are not determining which employees should receive payment and how much each should receive. Providing someone acting independently of the employer determines how the tips are allocated, no NICs will be due on tips distributed through the tronc.
Accordingly the outcome of this example has changed although the facts remain the same.
This example illustrates how payments made through a tronc can also meet the employer’s legal obligations. Such as where there is a right to participate in the tronc included in the employment contract.
HMRC considers that, where the employee has a contractual entitlement to a share of the tronc as a whole, the whole of the payments the employee receives from the tronc will be liable for NICs. That is because the employer’s contractual obligation extends to the whole of the sums received from the tronc.
There has been no material change to the outcome of this example. The revised example12 in E24 (2005) does however clarify the basis on which HMRC considers NICs are payable.
Previously, in these circumstances, the guidance stated that the employer was indirectly allocating the tips because the provisions in the contract meant he was interfering with the distribution of them. HMRC has now changed its view of this situation. We now accept that by including a right to participate the employer is determining which employees should receive payment but that he is not determining how much each should receive.
However, if the employer has given an assurance that the employee can participate in the troncwe believe that it follows that the employee can expect a share of the tronc monies and that such a share would be determined in a reasonable manner. So, as the right to receive a fair share from the tronc is, implicit in the contractual right to participate the employer has a legal obligation to make good the share in question should it not be paid. Accordingly any such payment cannot be disregarded from earnings for NICs purposes under the exemption at paragraph 5 of Part 10 of Schedule 3 to the Social Security (Contributions) Regulations 2001.
This example illustrates how payments made by a third party, such as payments through a tronc, can meet the employer’s legal obligations but only to the extent of the employer’s legal obligations under the terms of the contract.
HMRC considers that, where the employee only has a contractual entitlement to a minimum amount from the tronc, and the agreement does not extend to a share of the tronc as a whole, any payments in addition to that minimum are non-contractual.
Accordingly, only the ‘minimum amount’ paid from the tronc will be liable for NICs. Whether any additional amount paid from the tronc is liable for NICs will depend on whether the employer is allocating the payments.
The outcome of this example has changed although the facts remain the same.
This example goes on to illustrate further some of the principles already dealt with in earlier examples, but in a different scenario.
There is a revised flowchart on page 9 of the E24 (2005) booklet. That provides a quick guide to how tips are dealt with for National Insurance. It takes account of HMRC’s revised interpretation of the term allocate and incorporates the considerations relating to NMW and contractual entitlements.
The Income Tax (Trading and Other Income) Act 2005 (ITTOIA) came into force on 6 April 2005. ITTOIA is the third Act produced by the Tax Law Rewrite project. It was preceded by the Capital Allowances Act 2001 and the Income Tax (Earnings and Pensions) Act 2003 (which rewrote Schedule E).
ITTOIA replaces, for income tax only, the remaining Schedules A, D and F with labels that are descriptive and therefore informative. It rewrites the law to make it clearer and easier to use. The structure is logical, with each of the main types of income in a Part of its own and with a separate Part for income that is exempt from income tax.
ITTOIA rewrites all of the main charges to income tax. But some Case VI charges, for example the tax avoidance provisions in Part 12 of ICTA 1988, will not be rewritten until the project’s next and final income tax Bill (scheduled for introduction to Parliament in late 2006, to take effect from 6 April 2007). In the meantime ITTOIA makes amendments to those charges to ensure that they apply directly, rather than through Schedule D.
In the main, ITTOIA does not change the effect of the law but it does correct some minor anomalies and incorporates a number of extra-statutory concessions and accepted practices into the legislation.
The Act has no direct application to corporation tax, but where provisions previously applied to both income tax and corporation tax those provisions have been amended so that they now apply to corporation tax only.
Detailed Explanatory Notes, including an annex listing the minor changes made to the law, accompany the Act. There are also Tables of Origin and Destination.
ITTOIA is divided into 10 Parts and 4 Schedules. Part 1 is the overview, Parts 2 to 5 cover the principal types of income and Parts 6 to 10 deal with exempt income, certain reliefs and special rules.
Part 2 rewrites the charge to tax on the profits of a trade, profession or vocation. It rewrites Schedule D Cases l and ll, Case V in relation to overseas trades and trade-related Case Vl charges.
This Part rewrites Schedule A, replacing it with a charge on a UK property business. It also rewrites Schedule D Case V in relation to overseas property businesses, Case Vl on wayleaves and rents from mines and quarries and Case Vl charges that are related to a property business.
ITTOIA unpacks Schedule D Cases III to VI and provides separate charges
for each identifiable type of income. This Part brings together charges on
“investment - type” income previously within these Cases, such
as interest, purchased life annuity payments and transactions in deposits.
The charges apply, where relevant, to both UK and overseas income. This Part
also contains the Schedule F replacement charge on dividends and other distributions
resident companies and a new charge on foreign dividends. It also rewrites the charge to tax on life insurance policies and contracts.
Part 5 charges other types of income formerly charged by Schedule D Cases III to VI. For example, there is a chapter for all non-trading income from intellectual property. This provides a single charge for royalties and other income from intellectual property together with charges on the disposal of know-how and the sale of patent rights. There is a charge for annual payments not otherwise charged to tax and a charge for income not otherwise charged which replaces the “sweep-up” element of Case VI. Income from settlements and beneficiaries’ income from estates in administration are also dealt with in this Part.
This Part rewrites the exemptions given to certain types of income such as income from investment plans (ISAs) and SAYE interest. The rules governing exemptions given to certain types of taxpayer, such as charities, will be rewritten in the next rewrite Bill. The only exception to this is the exemption of foreign income of consular officers and employees.
An odd combination at first glance, but although the types of income are different, the methods of giving relief are similar.
Wherever possible foreign income is charged with its UK equivalent in Parts 2 to 5 of ITTOIA. This Part provides the special rules, such as the remittance basis, that apply only to “relevant foreign income” (that is, income formerly charged under Schedule D Cases IV and V) and the relief available for income arising outside the UK which is unremittable to the UK.
The rules that apply to partnerships appear in this Part although ITTOIA uses “firm” when referring to the partners (because “partnership” is strictly the relationship between the partners).
This Part contains rules that apply to more than one Part of the Act. It includes commencement provisions and some definitions.
The four Schedules are: 1 Consequential amendments, 2 Transitionals and savings, 3 Repeals and revocations, 4 Abbreviations and defined expressions.
Where an employer
The employer is liable for payment of any Class 1 or Class 1A NICs but the tax liability is generally that of the employee. For tax purposes the employer’s responsibility is therefore limited to making an annual report on a form P11D/P9D to HMRC, copied to the employee.
Where it is discovered that an underpayment of tax has arisen as the result of an employer’s failure to return an item on a form P11D/P9D, it is a long established practice for HMRC to encourage employers to settle the tax on a grossed up basis, and include it in a contract settlement.
There are sound business reasons for employers to step in and volunteer settlement, for example:
The contract settlement approach also benefits HMRC as it is administratively less time consuming than the statutory route.
Note: Where an employer pays tax on behalf of an employee, the payment represents earnings as defined in S62 ITEPA 2003 (Hartland v Diggines 10TC247).
Section 3(1) of the Social Security Contributions and Benefits Act 1992 provides that “earnings” includes “any remuneration or profit derived from an employment”.
The decision in Regina v Department of Social Security, ex parte Overdrive Credit Card Ltd.  STC129 established that the discharge of an employee’s debt is to be regarded for NICs purposes as equivalent to a payment of cash. This means that where an employer pays tax which an employee is liable to pay it amounts to a payment of cash that attracts Class 1 NICs.
HMRC are clear that NICs are due on the value of any grossed up tax paid by the employer and the liability will generally arise at the point at which the tax is paid on the employee’s behalf. This is in addition to Class 1 or Class 1A NICs payable in connection with the benefit, pecuniary liability or expense payment.
Unfortunately, in recent years Employer Compliance teams have not always taken a consistent line in respect of the treatment of cases involving NICs liability on tax paid by the employer. This is now being addressed and from the date of this article common procedures will be applied in all cases where it is proposed to enter into a contract settlement to include ‘grossed up’ tax being paid on behalf of employees.
No action will be taken in respect of cases settled prior to this date.
At the point where the employer is invited to pay tax due on behalf of employees, Employer Compliance staff will
As stated above, the Class 1 NICs liability will generally arise in respect of employees for the pay period in which the tax is paid. Primary and secondary NICs should therefore strictly be calculated by adding the tax paid in respect of the employee to any other earnings of that employee in that pay period.
As this is likely to cause practical and administrative problems for the employer, particularly where computations have been agreed on estimated figures, employers may be allowed to account for NICs alongside tax as part of the contract settlement.
Of course employers can, if they prefer, account for NICs on the tax via the payroll in the normal manner. If this is the preferred course, then in order to accurately calculate the Class 1 NICs liability the employer must
It is to be noted that the NICs payable on the grossed up tax are in addition to any NICs payable in connection with the provision of the benefit/expense.
Section 247 TCGA 1992 allows roll-over relief in certain circumstances where a landlord disposes of land to an “authority exercising or having compulsory powers” and acquires replacement land. “Authority” is defined in Section 243(5) TCGA 1992 to mean a person or body of persons with compulsory purchase powers.
An existing Statement of Practice, SP13/93, was issued to make it clear that relief under Section 247 may be claimed by a landlord, if the conditions of the Section are met, where tenants exercise their statutory right to acquire the freehold reversion or an extension of their lease under the Leasehold Reform, Housing & Urban Development Act 1993, the tenant’s right to buy under the Housing Acts 1985 to 1996, or the right to purchase tenanted property under the Housing (Scotland) Act 1987. It replaced SP7/90 which applied the same treatment to cases under the Leasehold Reform Act 1967.
The statement of practice has now been extended to cover cases where a crofting community body exercises the right to acquire croft land under the provisions of Part 3 of the Land Reform (Scotland) Act 2003 and has been published on the HMRC website.
HMRC has a policy of selective prosecution involving the most serious cases across the whole range of the tax system. The Board sees this as an important part of its strategy to deter fraud and evasion. As part of the wider publicity for this strategy, details of prosecutions are occasionally published in Tax Bulletin.
David Anthony Greenwood
An accountant from Haslemere in Surrey is serving a 15-month prison sentence, having been found guilty of fraud at Guildford Crown Court recently.
David Anthony Greenwood, aged 49, a married father of two, was charged with 8 counts of defrauding the Inland Revenue. Investigations found that interest he was receiving from bank accounts in the Channel Islands amounting to £100,000 was not being shown on his Tax Returns.
Greenwood, a qualified chartered accountant and director of two companies, denied owning any offshore investments in Guernsey during an interview with an investigator from the Inland Revenue Special Compliance Office (SCO).
His Honour, Judge Bull residing, found that Greenwood of Farnham Lane, Haslemere, had obtained some £54,000 from the offence and commented that the defendant had clearly been dishonest and had gained a financial reward at the expense of the law abiding public who pay their tax. Together with the custodial sentence, he also granted a Confiscation Order for £54,010.09, and directed the defendant to pay costs of £25,000. Greenwood, who pleaded guilty at an earlier hearing, will face a further 19 months in custody if he fails to pay the Confiscation Order.
An HM Revenue & Customs spokesperson said:
“Greenwood had every opportunity to tell the truth about his bank accounts. Had he not lied to the investigator, then he would not have been subject to a criminal investigation. The honesty and integrity of accountants is imperative. We take a very serious view of individuals who hold a position of trust and then betray that trust.”
A former Inland Revenue employee, who is currently serving a 4-year jail sentence, was hit with a confiscation order for £114,244. 87 at Inner London Crown Court recently.
49-year old Errol Mark was jailed in September 2004 after being found guilty of cheating the Public Revenue of more than £185,000. Mark was sentenced alongside his co-defendant, Theodolph Cudjoe, for fraud, which was arranged around false tax repayments over a four-year period.
His Honour Judge Charles Gibson said:
“Errol Mark was the inside man. He was aware of the internal processes and computer systems. None of the fraudulent claims could have succeeded without him. I deem his benefit of the total fraud as 60%.”
Mark was ordered to pay this sum within the next 9 months. Failure to pay will result in a further 2 years prison sentence in addition to the 4 years already being served.
There have been no Extra Statutory Concessions for this period
SP1/05 Business by phone - Customs & Revenue Contact Centres 6/4/2005 (this has been superseded by SP1/11 (PDF 1.35MB))
SP13/93 Compulsary acquistion of freehold or extension of lease by tenant’s is amended
You can get the latest copies of SPs and ESCs by telephoning Chandra Chandramohan, on 020 7147 2363.
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