The Education (Postgraduate Master’s Degree Loans) Regulations 2016

CHAPTER 4

Interpretation

51.  In this Chapter—

“approved method” means—

(a)

in relation to the delivery of a return in accordance with this Chapter, the internet services or the Electronic Data Interchange services provided through PAYE Online(1) or PAYE Online for Agents(2);

(b)

in relation to the making of a payment in accordance with this Chapter, the services known as Direct Debit, BACS Direct Credit (including telephone and internet banking), CHAPS, debit and credit card over the internet (‘BillPay’), Government Banking Service (formerly known as Paymaster), Bank Giro and payments made through the Post Office.

“combined amount” means an amount which includes deductions of postgraduate master’s degree loan repayments under this Chapter and one or more of the following—

(a)

tax due under the PAYE Regulations;

(b)

earnings-related contributions due under the Contributions Regulations; or

(c)

amounts due under the Income Tax (Construction Industry Scheme) Regulations 2005(3);

“the Contributions Regulations” means the Social Security (Contributions) Regulations 2001(4);

“deductions working sheet” means any form of record on or in which are to be kept matters required by the Contributions Regulations in connection with an employee’s earnings and deductions;

“earnings” means, subject to regulation 55 of these Regulations, such sums as—

(a)

constitute earnings for the purposes of section 3 of the Social Security Contributions and Benefits Act 1992(5) as calculated for the purposes of the Contributions Regulations as amended from time to time; and

(b)

are to be taken into account for the purposes of calculating secondary Class 1 contributions under section 9 of the Social Security Contributions and Benefits Act 1992(6);

“employee” means any person in receipt of earnings;

“employer” means any person paying earnings to an employee, and includes the Crown;

“Form P45”has the same meaning as in the PAYE Regulations;

“income tax month” means the period beginning on the 6th day of any calendar month and ending on the 5th day of the following calendar month;

“income tax period” means income tax quarter where regulation 64(3) has effect, but otherwise means income tax month;

“income tax quarter” means the period beginning on 6 April and ending on 5 July, or beginning on 6 July and ending on 5 October, or beginning on 6 October and ending on 5 January, or beginning on 6 January and ending on 5 April;

“the PAYE Regulations” means the Income Tax (Pay As You Earn) Regulations 2003(7);

“Real Time Information employer” means an employer for the purposes of regulation 41A of the 2009 Regulations.

Repayment of postgraduate master’s degree loans by employees

52.  Subject to the provisions contained in this Chapter, repayments by a borrower who is an employee must be made, accounted for and recovered in the same manner as income tax deducted from the earnings of an office or employment by virtue of Regulations under section 684 of the 2003 Act.

Commencement of employment with a Real Time Information employer

53.  An employee who commences employment with a Real Time Information employer must inform their employer whether the employee has any liability to repay any postgraduate master’s degree loan.

Amount of repayments

54.—(1) The repayment deducted must be 6% of any earnings paid to, or provided to or for the benefit of, the borrower in respect of the employment which exceed the threshold specified in paragraph (2).

(2) The threshold is—

(a) £21,000, where the earnings period specified in respect of those earnings is a tax year; or

(b) in any other case, the amount which bears the same relation to £21,000 as the number of days, weeks or months of the earnings period specified in respect of those earnings bears to the number of days, weeks or months in the tax year.

(3) Where a repayment calculated under paragraph (1) includes pence as well as pounds the pence are to be ignored.

(4) Alternatively, the repayment calculated under paragraph (1) may be calculated in accordance with the appropriate table prepared by the Authority.

(5) Where a table would otherwise be appropriate, but the earnings period is a multiple of the period in the table, then the table may be applied by—

(a) dividing the actual earnings by such figure (X) as will give the earnings earned for the period shown in the table;

(b) taking the appropriate repayment specified in the table; and

(c) multiplying the table repayment sum by figure X,

to produce the appropriate payment sum for the actual earnings period.

Calculation of earnings

55.—(1) In calculating earnings for the purposes of these Regulations, earnings paid to or for the benefit of an employee are aggregated or not aggregated as they are for the purposes of the Contributions Regulations.

(2) HMRC may, where it is satisfied as to the existence of any practice in respect of the payment of earnings which causes the incidence of repayments to be avoided or reduced by means of the payment of earnings to or for the benefit of an employee by different persons in respect of different employments, give directions for securing that such repayments are made as if the practice were not followed.

(3) HMRC may, where it is satisfied as to the existence of any practice in respect of the payment of earnings which causes the incidence of repayments to be avoided or reduced by means of irregular or unequal payments, give directions for securing that such repayments are made as if that practice were not followed.

Earnings periods

56.—(1) The amount of repayments, if any, which is deducted by the employer must, subject to paragraph (2), be calculated by reference to the amount of earnings paid to, or provided to or for the benefit of, the borrower in respect of the employment, in the earnings period specified or determined in respect of those earnings for the purposes of the Contributions Regulations.

(2) Where earnings in respect of two or more employments—

(a) fall to be aggregated for the purposes of the Contributions Regulations; and

(b) the earnings periods in respect of those earnings are, by virtue of the Contributions Regulations, of different lengths,

the earnings period specified in respect of the aggregated earnings will be the shorter or shortest of those earnings periods.

Multiple employers

57.—(1) Where—

(a) an employer has made an election under regulation 98(1) of the PAYE Regulations (Multiple PAYE schemes); and

(b) no improper purpose notice has been issued under regulation 99(1) of those Regulations (Multiple PAYE schemes: election made for improper purpose ineffective), or, if one has been issued, it has been withdrawn under regulation 99(5),

the employer is to be treated as having made an election for the purposes of those Regulations.

(2) Where earnings in respect of two or more employments fall to be aggregated under regulation 15(1)(a) of the Contributions Regulations, the amount to be deducted is apportioned between the employers in the same proportions as secondary Class 1 contributions are apportioned between them under that regulation.

Intermediate employers

58.—(1) This regulation applies where a direction has been given by HMRC under section 691 of the 2003 Act (PAYE: mobile UK workforce) and for the purposes of this regulation—

(a) “the principal employer” means the person specified as the relevant person in the direction; and

(b) “the immediate employer” means the person specified as the contractor in that direction.

(2) Where an employee works for a person who is not an immediate employer of the employee, that person (“the principal employer”) is deemed to be the employer for the purposes of these Regulations and the immediate employer must provide the principal employer with such particulars of the employee’s earnings as may be necessary to enable the principal employer to comply with these Regulations.

(3) If the employee’s earnings are paid to the employee by the immediate employer then—

(a) the principal employer must notify the immediate employer of the amount of repayments which are to be deducted when the earnings are paid to the employee, and the immediate employer must deduct the amount notified accordingly; and

(b) the principal employer may make a corresponding deduction on making the payment to the immediate employer of the sum from which the earnings in question are to be paid.

Notice to employers

59.—(1) Where HMRC has been given notice by the Authority under regulation 26(4)(b) that a borrower may be required to make repayments under this Chapter on and after a specified date, HMRC must give notice to any person who to its knowledge is an employer of the borrower requiring the employer to make deductions of repayments from earnings paid to the borrower in accordance with these Regulations.

(2) A notice under paragraph (1) must contain—

(a) the employee’s name;

(b) the employee’s National Insurance number; and

(c) the date on and after which the employer is required to make deductions.

(3) Where HMRC has been given notice by the Authority under regulation 26(4)(d) that it is no longer necessary for a borrower to make repayments after a particular date, HMRC must notify anyone who to its knowledge is an employer of that borrower requiring the employer not to make deductions from the borrower’s earnings on or after a particular date under this Chapter accordingly.

(4) A notice under paragraph (3) must contain—

(a) the employee’s name;

(b) the employee’s National Insurance number; and

(c) the date on and after which no deduction is required to be made.

(5) If HMRC is to give notices to an employer of two or more borrowers in accordance with paragraphs (1) or (3) or both, HMRC may give one notice in respect of all such borrowers containing, in respect of each of them, the particulars specified in paragraph (2) or (4) as the case requires.

Deductions of repayments

60.—(1) Every employer who has received—

(a) a notice under regulation 59(1);

(b) a Form P45 containing a statement under regulation 84 of these Regulations; or

(c) information under regulation 53 that the employee has any liability to repay any postgraduate master’s degree loan,

must, on making to that employee any payment of earnings on the first available pay date, which falls on or after the date referred to in paragraph (2) and at any time after that pay date, but before the date referred to in paragraph (3), deduct the appropriate repayment in accordance with these Regulations.

(2) The date is—

(a) where the employer has received notice from HMRC under regulation 59(1), the date specified in the notice as the date on and after which deductions must be made;

(b) where the employer has received a Form P45, the date on which that Form is first received; or

(c) where an employer has received information under regulation 53 that the employee has any liability to repay any postgraduate master’s degree loan, the date on which that information is received.

(3) The date referred to in this paragraph is the date specified in the notice given by HMRC under regulation 59(3) as the date on and after which deductions must not be made; and the employer must not make deductions on or after the first available pay day on or after this date.

(4) Where two or more payments of earnings are to be aggregated for the purposes of calculating the amount of a repayment requiring deduction, the employer may deduct that amount either wholly from one such payment or partly from one and partly from the other or any one or more of the others.

(5) Subject to paragraphs (6) and (7), if the employer does not deduct from any payment of earnings to an employee the full amount of a repayment which should have been deducted, the employer may deduct the remainder of the sum which should have been deducted from any subsequent payment or payments of earnings to that employee during the same tax year.

(6) An employer may not make a subsequent deduction in respect of any remainder not previously deducted after the date referred to in paragraph (3).

(7) The amount of any subsequent deduction referred to in paragraph (5) may be an amount in addition to but must not exceed the amount deductible from the payment under the other provisions of this Chapter.

(8) If the employer deducts any repayment from the earnings of an employee who is a borrower in accordance with these Regulations, the employer is not required to repay any amount to the employee only because that amount was not owed by the employee to the Authority as all or part of a postgraduate master’s degree loan.

Priority where other deductions required

61.—(1) Where any employer is required to deduct repayments from a payment under regulation 60 but the aggregate of the deduction and any deductions on account of income tax and National Insurance contributions exceeds the amount of the payment, the employer must make the deductions on account of income tax and National Insurance first and the amount of the repayment which is to be deducted must be the remaining balance.

(2) Where an employer is required to deduct repayments from a payment under regulation 60 and is also required to comply with one or more of any of the types of notice or order in paragraph (3), paragraph (4) applies.

(3) For the purposes of this paragraph, the notices and orders are—

(a) attachment of earnings orders made under the Attachment of Earnings Act 1971 (“the 1971 Act”)(8), the Community Charge (Administration and Enforcement) Regulations 1989(9) (“the Community Charge Regulations”), the Council Tax (Administration and Enforcement) Regulations 1992(10) (“the Council Tax Regulations”), the Judgments Enforcement (Northern Ireland) Order 1981(11), the Magistrates’ Courts Order (12);

(b) deductions of earnings orders made under the Child Support (Collection and Enforcement) Regulations 1992(13); or

(c) income support deduction notices made under regulation 20 of the Social Security (Payments on Account, Overpayments and Recovery) Regulations 1988(14) (“the Social Security Regulations”).

(4) An employer must deduct repayments as if they were amounts requiring deduction pursuant to an order under the 1971 Act which—

(a) was not made to secure the repayment of a judgement debt or payments under an administration order;

(b) was the most recent order under that Act not made for that purpose; and

(c) specifies a protected earnings rate equal to the protected earnings rate specified in the most recent attachment of earnings order, deduction of earnings order or income support deduction notice not made for that purpose which specifies such a rate, unless there is no such order or notice.

(5) Where in the circumstances described in paragraph (4) an employer is required to comply with an attachment of earnings order made under the Community Charge Regulations, the Council Tax Regulations or an income support deduction notice under regulation 20 of the Social Security Regulations before deducting a repayment under regulation 50, no repayment must be deducted by the employer.

(6) Where an employer is required to deduct repayments from a payment under regulation 60 and is also required to comply with one or more earnings arrestments, current maintenance arrestments or conjoined arrestment orders within the meaning of the Debtors (Scotland) Act 1987(15) (whether or not also required to comply with an attachment of earnings order, deduction of earnings order or income support deduction notice), no repayments under regulation 60 may be deducted.

(7) Where repayments to be deducted in accordance with paragraph (4) are reduced as a result of paragraph 4(c) and the total of the reduced payments includes pence as well as pounds the pence are to be ignored.

Deductions working sheet

62.—(1) The employer must record on the deductions working sheet for an employee the amount of any deduction from any payment of earnings under these Regulations.

(2) Where two or more payments of earnings are to be aggregated for the purposes of calculating the amount of repayments requiring deduction, the employer must record a single amount, being the total of the amount requiring deduction in respect of the aggregated payments, rather than recording separate amounts in respect of each such payment.

Certificate of repayments

63.—(1) Where the employer is required to give an employee a certificate in accordance with regulation 67 of the PAYE Regulations, or paragraph 9 of Schedule 4 to the Contributions Regulations (Form P60), the employer must record in the certificate the amount of repayments deducted by that employer in the tax year to which the certificate relates.

(2) Where the employer is not otherwise required to give an employee who is an employee on the last day of the tax year such a certificate but has deducted repayments in respect of a tax year, the employer must give the employee a certificate showing the amount of repayments deducted for that tax year.

Payment of repayments deducted to HMRC

64.—(1) Subject to paragraphs (2), (3) and (6), the employer must pay an amount equal to the smaller of the repayments—

(a) deducted by the employer under these Regulations during an income tax month (and, where required, reported under regulation 69 or 74); or

(b) which the employer was required to deduct under these Regulations during that income tax month,

to HMRC within 14 days of the end of that income tax month.

(2) The amount specified in paragraph (1) must be adjusted to take account of errors corrected under regulation 75(5).

(3) Where, under paragraph 11 of Schedule 4 to the Contributions Regulations, the employer is required to pay National Insurance contributions due in respect of earnings paid in an income tax quarter within 14 days of its end, then subject to paragraphs (3) and (6), the employer must pay an amount equal to the smaller of the repayments—

(a) deducted by the employer under these Regulations during an income tax quarter; or

(b) which the employer is required to deduct during that quarter,

to HMRC within 14 days of the end of that income tax quarter.

(4) Subject to paragraph (5), if the employer has paid to HMRC on account of repayments under this regulation an amount which the employer was not liable to pay, the amounts which the employer is required subsequently to pay in respect of other payments of earnings made by the employer during the same tax year must be reduced by the amount overpaid.

(5) If the overpayment referred to in paragraph (4) corresponds to an over-deduction from the earnings of one or more employees, an employer may only act in accordance with paragraph (4) if and to the extent that the employer has reimbursed the employee or employees for that over-deduction.

(6) Where an employer makes a payment in accordance with paragraph (1) or (3) by an approved method of electronic communications, payment must be made within 17 days of the end of the relevant income tax period.

Payments to and recoveries from HMRC for each income tax period by Real Time Information employers: returns under regulation 75(5)

65.—(1) This regulation applies if, during any income tax period, a Real Time Information employer makes a return under regulation 75(5) (returns under regulation 69 and 74: amendments).

(2) The amount specified in regulation 64 for the final income tax period in the year covered by the return is to be adjusted to take account of the information in the return.

(3) If the value of the adjustment required by paragraph (2) is a negative amount, the employer may recover that amount—

(a) by setting it off against the amount the employer is liable to pay under regulation 64(1) for the income tax period in which the return is made; or

(b) from the Commissioners for Her Majesty’s Revenue and Customs.

Notice of specified amount and certificate when repayments not deducted

66.—(1) This regulation applies where, after 17 days following the end of any income tax period, the employer has paid no amount in respect of postgraduate master’s degree loan repayments to HMRC under regulation 64 for that income tax period and there is reason to believe that the employer is liable to pay such repayments.

(2) Where this regulation applies, HMRC upon consideration of the employer’s record of past payments, whether of postgraduate master’s degree loan repayments or of combined amounts, may to the best of its judgment specify the amount in respect of postgraduate master’s degree loan repayments or of a combined amount which it considers the employer is liable to pay, and serve notice on the employer of that amount.

(3) In arriving at the amount under paragraph (2), HMRC may also take into account any returns made by the employer under these Regulations in the income tax period in which the return is made or earlier income tax periods.

(4) Where the employer has paid no amount under regulation 64 for the relevant income tax periods, HMRC may give a notice under paragraph (2) which extends to two or more consecutive income tax periods and these Regulations have effect as if those income tax periods were the latest income tax period specified in the notice.

(5) HMRC may give a notice under paragraph (2) even if an amount in respect of postgraduate master’s degree loan repayments has been paid to it by the employer under regulation 64 for any income tax period, if HMRC is not satisfied, having sought the employer’s explanation, that the amount paid is the full amount which the employer is liable to pay to it for that income tax period and this regulation applies to the amount specified.

(6) If the employer claims during the period allowed in a notice given under paragraph (2) that the payment made in respect of the income tax period specified is, or includes, the full amount of postgraduate master’s degree loan repayments which the employer is liable to pay to HMRC for that period, but does not satisfy HMRC of this, then—

(a) the employer may require HMRC to inspect the employer’s documents and records as if an officer of Revenue and Customs had called upon the employer to produce those documents and records in accordance with regulation 77; and

(b) regulation 77 applies to that inspection and the notice given by HMRC under paragraph (2) is to be disregarded.

(7) Subject to paragraph (8), if the specified amount, or any part of it, is unpaid on the expiration of the period of seven days allowed in the notice, the amount unpaid—

(a) is deemed to be an amount in respect of postgraduate master’s degree loan repayments or to include an amount in respect of postgraduate master’s degree loan repayments which the employer was liable to pay for that income tax period in accordance with regulation 64, and

(b) may be certified by HMRC.

(8) Paragraph (7) does not apply if during the period allowed in the notice—

(a) the full amount which the employer is liable to pay to HMRC for that income tax period is paid; or

(b) the employer satisfies HMRC that no amount, or no further amount, is due for that income tax period.

(9) The production of a certificate under paragraph (7) is sufficient evidence that the employer is liable to pay the amount shown in the certificate to HMRC.

(10) Any document purporting to be a certificate under paragraph (7) is deemed to be such a certificate until the contrary is proved.

(11) Despite any other provision of this regulation, if an employer pays any amount certified by HMRC under this regulation and that amount exceeds the amount which the employer would have been liable to pay in respect of that income tax period apart from this regulation, the employer is entitled to set off such excess payment against any amount which the employer is liable to pay to HMRC under regulation 64 for any subsequent income tax period.

Recovery of payments deducted through the income tax system

67.—(1) The provisions of the Taxes Acts and of any Regulations under section 684 of the 2003 Act relating to the recovery of tax apply to the recovery of any amount which the employer is liable to pay to HMRC under regulation 64, 66 or 77 as if that amount had been tax charged by way of an assessment on the employer as employment income under the 2003 Act.

(2) Without prejudice to paragraph (1), regulation 84 of the PAYE Regulations applies to the amount shown in a certificate under regulation 66(7) or 77(4) with the modification that summary proceedings for the recovery of the amount in respect of postgraduate master’s degree loan repayments or a combined amount, or such part of it as remains unpaid, together with any interest payable on such amount, may be brought at any time before the expiry of 12 months after the date of the certificate.

(3) In the application of any provisions referred to in paragraph (1) to any proceedings under this regulation which limit the amount which is recoverable in those proceedings, any other element of a combined amount which may by virtue of paragraphs (4) to (6) be included as part of the cause of action or matter of complaint in those proceedings is to be disregarded.

(4) Proceedings may be brought for the recovery of—

(a) the total amount which the employer is liable to pay to HMRC under regulation 64; or

(b) the total amount which the employer is liable to pay HMRC as a combined amount including any amount under regulation 64, without specifying the respective amounts of any component of a combined amount or distinguishing the amounts which the employer is liable to pay in respect of each employee and without specifying the employees in question.

(5) For the purposes of—

(a) proceedings under section 66 or 67 of the 1970 Act (including proceedings under either section as applied by the provisions of this regulation); and

(b) summary proceedings (including, in Scotland, proceedings in the sheriff court),

the total amount specified in paragraph (4) is, subject to the provisions of paragraphs (3) and (6), one cause of action or one matter of complaint.

(6) Nothing in paragraphs (4) or (5) prevents the bringing of separate proceedings for the recovery of each of the several amounts referred to in paragraph (4) which the employer is liable to pay to HMRC for any income tax period in respect of each of the employer’s employees.

Interest on unpaid repayments

68.—(1) Subject to paragraph (2), where an employer has not on or before the 14th day after the end of an income tax period paid an amount which the employer is liable to pay to HMRC under regulation 64 for that period, that amount will carry interest at the rate applicable under section 103 of the Finance Act 2009 for the purposes of section 101 of the Finance Act 2009 from that date until payment.

(2) Where payment is made by an approved method of electronic communications, the interest payable under paragraph (1) must be calculated as if the date in paragraph (1) was the 17th day after the end of the tax period.

(3) Interest payable under this regulation is recoverable as if it were an amount which the employer was liable to pay under regulation 64.

(4) An amount to which paragraph (1) applies carries interest from the day mentioned in that paragraph even if that date is a non-business day within the meaning of section 92 of the Bills of Exchange Act 1882.

(5) A certificate of HMRC that to the best of its knowledge and belief, any amount of interest payable under this regulation has not been paid to it by the employer, is sufficient evidence that the amount of interest shown on the certificate is unpaid and is due to the Crown.

(6) Any document purporting to be a certificate under paragraph (5) is deemed to be such a certificate until the contrary is proved.

(7) HMRC may prepare a certificate certifying the total amount of interest payable in respect of the whole of a combined amount without specifying to what component of the combined amount the interest relates and paragraphs (5) and (6) will apply to that certificate.

(8) Where an employer has paid interest on an amount under this regulation and it is found not to have been due to be paid, although the amount in respect of which it was paid was due to be paid, that interest must be repaid to the employer.

Real time returns of information about payments of earnings

69.—(1) On or before making a payment of earnings to an employee, an employer must deliver to HMRC the information specified in Schedule 3 (real time returns) in accordance with this regulation.

(2) The information must be included in a return.

(3) Subject to paragraph (4), if payments of earnings are made to more than one employee at the same time, the return under paragraph (2) must include information required by Schedule 3 in respect of each employee to whom a payment of earnings is made at that time.

(4) If payments of earnings 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.

Employees paid in specified circumstances

70.—(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 69(1) on making the payment.

(3) The employer need not deliver the information required by regulation 69(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.

(5) Where this regulation applies, the information required under regulation 69(1) in respect of the relevant payment may be included in a return with the information for any other relevant payment.

Benefits and expenses – returns under regulations 85 to 87 of the PAYE Regulations

71.—(1) This paragraph applies if an employer makes a payment of general earnings to an employee which, for the purposes of tax falls to be included in a return under—

(a) regulations 85 and 86 of the PAYE Regulations (employers: annual return of other earnings (Form P11D) – information which must be provided for each employee); or

(b) regulations 85 and 87 of the PAYE Regulations (employers: annual return of other earnings (Form P11D) – information which must also be provided for benefits code employees) or would do if the employee’s employment was subject to the benefits code for the purposes of regulation 85 of the PAYE Regulations.

(2) If the employer is unable to comply with the requirement in regulation 69(1) to deliver the information required by that regulation on or before making the 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 income tax month the payment is made in.

Modification of the requirements of regulation 69: notional payments

72.—(1) This regulation applies if an employer makes a payment of earnings to an employee which, for the purposes of tax, is a notional payment within the meaning given by section 710(2) of the 2003 Act.

(2) If the employer is unable to comply with the requirement in regulation 69(1) to deliver the information required by that regulation on or before making the 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—

(a) the time at which the employer delivers the information required by regulation 67B of the PAYE Regulations in respect of the payment;

(b) the time at which the employer makes a deduction from earnings in respect of the payment in accordance with regulation 60 (deductions of repayments); or

(c) 14 days after the end of the income tax month the payment is made in,

whichever is earliest.

Relationship between regulation 69 and aggregation of earnings

73.—(1) Where an employee’s earnings are aggregated, the employer or, as the case may be, employers must make such arrangements as are necessary to ensure that the information specified in paragraph (2) in respect of all the aggregated earnings is provided in the information given under regulation 69 relating to one of the employee’s employments only.

(2) The information specified in this paragraph is the information specified in paragraph 3 of Schedule 3 (real time returns).

Exceptions to regulation 69

74.—(1) This regulation applies to an employer who is—

(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 partners fall within sub-paragraph (a);

(c) a company, if all directors and the company secretary fall within sub-paragraph (a);

(d) a care and support employer ; or

(e) an employer to whom a direction has been given under regulation 67D (11) of the PAYE Regulations, but this is subject to paragraph (3).

(2) An employer to whom this regulation applies may proceed in accordance with this regulation instead of 69.

(3) This regulation does not apply if a Real Time Information employer within paragraph (1) makes a return using an approved method of electronic communications.

(4) The employer must deliver to HMRC the information specified in Schedule 3 in respect of each employee to whom payments of earnings are made in an income tax quarter.

(5) The information must be included in a return.

(6) The return required under paragraph (5) must be delivered within 14 days after the end of the income tax quarter the return relates to.

(7) If payments of earnings have been made to more than one employee in the income tax quarter, the return under paragraph (5) must include the information required by Schedule 3 in respect of each employee to whom the payment of earnings has been made.

(8) In paragraph (1)(c), “company” means a body corporate or unincorporated association but does not include a partnership.

(9) In paragraph (1)(d), “a care and support employer” means an individual (“A”) who employs a person to provide domestic or personal services at or from A’s home where—

(a) the services are provided to A or a member of the A’s family;

(b) the recipient of the services has a physical or mental disability, or is elderly or infirm; and

(c) it is A who delivers the return (and not some other person on A’s behalf).

Returns under regulations 69 and 74: amendments

75.—(1) This regulation applies where there is an inaccuracy in a return, whether careless or deliberate, made under regulation 69 (real time returns of information about payments of earnings) or 74 (exceptions to regulation 69) and paragraph (2) or (3) applies.

(2) This regulation applies where the inaccuracy relates to the information given in the return in respect of an employee under paragraph 3 of Schedule 3 (real time returns).

(3) This regulation applies where the inaccuracy was the omission of details of a payment of earnings to an employee.

(4) When the employer becomes aware of an inaccuracy in a return submitted under regulation 69 or 74, the employer must provide the correct information in the next return for the tax year in question.

(5) 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 regulation.

(6) A return under paragraph (5)—

(a) must include the following—

(i) the information specified in paragraph 1 of Schedule 3 (real time return);

(ii) the value of the adjustment to the information given under paragraph 3 of Schedule 3 in the final return under regulation 69 or 74 containing information in respect of the employee in the tax year in question; and

(iii) if paragraph (7) applies, the information specified in paragraph 5 of Schedule 3;

(b) must be made as soon as reasonably practicable after the employer becomes aware of the inaccuracy; and

(c) must be made by an approved method of electronic communications.

(7) This regulation applies if—

(a) the inaccuracy is within paragraph (3);

(b) the payment of earnings was the first payment of earnings to the employee in the employment; and

(c) the information specified in paragraph 5 of Schedule 3 has not otherwise been provided.

(8) In the application of paragraphs (5) and (6) to cases within paragraph (3), if no information was given in any returns under regulation 69 or 74 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.

(9) Paragraph (6)(c) does not apply if the employer is one to whom regulation 74 applies but in those circumstances the return must be in such form as HMRC may approve or prescribe.

Failure to make a return under regulation 69 or 74

76.—(1) This regulation applies where an employer does not make a return as required by regulation 69 (Real time returns of information about payments of earnings) or 74 (Exceptions to regulation 69).

(2) The employer must provide the information in the next return made under regulation 69 or 74 for the tax year in question.

(3) If the information has not been provided before 20 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)—

(a) must include the information specified in Schedule 3;

(b) must be made as soon as reasonably practicable after discovery of the failure to make the return; and

(c) must be made by an approved method of electronic communications.

Inspection of employers’ records

77.—(1) For the purposes of carrying out inspections of an employer’s records in relation to checking their compliance with this Chapter, Schedule 36 to the Finance Act 2008(16) (information and inspection powers) applies as it applies in relation to checking a person’s tax position (as defined in that Schedule) subject to the modifications in paragraph (2).

(2) The modifications are—

(a) any reference to any provision of the Taxes Acts is to be treated as a reference to this Chapter;

(b) the reference to information relating to the conduct of a pending appeal relating to tax is to be treated as a reference to information relating to the conduct of a pending appeal relating to compliance with this Chapter;

(c) paragraph 21 is omitted; and

(d) any reference to “statutory records” includes all documents and records relating to the repayments requiring deduction under this Chapter.

(3) Statutory records (as defined in Schedule 36) must be retained by the employer for not less than 3 years after the end of the tax year to which they relate.

(4) HMRC may, in relation to each inspection, prepare a certificate showing—

(a) the amount in respect of postgraduate master’s degree loan repayments which it appears from the documents and records produced that the employer is liable to pay HMRC for the years or income tax periods covered by the inspection; and

(b) any amount in respect of such postgraduate master’s degree loan repayments which has not been paid to HMRC.

(5) A certificate under paragraph (4) is sufficient evidence that the employer is liable to pay the amount shown in the certificate pursuant to paragraph (4)(b) to HMRC in respect of the years or income tax periods shown in the certificate.

(6) Any document purporting to be a certificate under paragraph (4) is deemed to be such a certificate until the contrary is proved.

Powers to obtain information

78.—(1) For the purposes of obtaining information in relation to checking an employer’s compliance with this Chapter, Schedule 36 to the Finance Act 2008 (information and inspection powers) applies as it applies in relation to checking a person’s tax position (as defined in that Schedule) subject to the modifications in paragraph (2).

(2) The modifications are—

(a) any reference to any provision of the Taxes Acts is to be treated as a reference to this Chapter;

(b) any reference to prejudice to the assessment or collection of tax is to be treated as a reference to prejudice to the assessment or collection of postgraduate master’s degree loan repayments;

(c) the reference to information relating to the conduct of a pending appeal relating to tax is to be treated as a reference to information relating to the conduct of a pending appeal relating to compliance with this Chapter;

(d) paragraphs 21, 35(4)(b), 36 and 37(2) are omitted; and

(e) a reference to “statutory records” includes all documents and records relating to the repayments requiring deduction under this Chapter.

Formal determination of repayments payable by employer

79.—(1) This regulation applies where it appears to HMRC that there may be repayments payable by an employer under regulation 64 which have not been paid to HMRC.

(2) Where this regulation applies, HMRC may determine the amount of those repayments to the best of its judgement and must serve notice of the determination on the employer.

(3) A determination under this regulation may—

(a) cover the repayments payable by the employer under regulation 64 for any one or more tax periods in a tax year; and

(b) extend to the whole of the repayments or such part of them as is payable in respect of a class or classes of employees specified in the notice of determination (without naming the individual employees) or of one or more specified, named employees.

(4) The provisions of Parts 4 (Assessment and Claims), 5 (Appeals and Other proceedings), 5A (Payment of Tax) and 6 (Collection and Recovery) of the 1970 Act apply to a determination under this regulation, with any necessary modification—

(a) as if the determination were an assessment for the purposes of that Act; and

(b) as if the amount of repayments determined was income tax charged on the employer.

Interest on unpaid repayments which have been formally determined

80.—(1) Where—

(a) an employer has not paid an amount of repayments to HMRC under regulation 64;

(b) HMRC makes a determination of the amount of such repayments under regulation 79; and

(c) repayments are payable pursuant to that determination,

those repayments carry interest at the applicable rate under section 103 of the Finance Act 2009 for the purposes of section 101 of the Finance Act 2009 from the 14th day after the end of the income tax period in which they are payable until payment.

(2) Interest payable under this regulation is recoverable as if it were an amount which the employer is liable to pay under regulation 64.

Death of employer

81.  If an employer dies, anything which that employer would have been liable to do under these Regulations must be done by the employer’s personal representative, or in the case of an employer who paid earnings on behalf of another, by the person succeeding that employer, or if not succeeded, by the person on whose behalf that employer paid earnings.

Succession to a business

82.—(1) This regulation applies where there has been a change in the employer from whom the employee receives earnings in respect of the employment in any trade, business concern or undertaking or in connection with any property, or from whom an employee receives an annuity other than a pension.

(2) Subject to paragraph (3), where this regulation applies in relation to any matter arising after the change of employer, the subsequent employer is liable to do anything that the previous employer would have been liable to do if there had been no change of employer.

(3) No subsequent employer is liable for the payment of repayments deducted from an employee’s earnings before the change of employer unless those repayments are also deductible from earnings paid to the employee after the change of employer.

Payment by cheque

83.  For the purposes of regulations 64 to 68, where—

(a) any payment to HMRC is made by cheque; and

(b) the cheque is paid on its first presentation to the banker on whom it is drawn,

the payment will be treated as paid on the day on which the cheque was received by HMRC and references in those regulations to “pay”, “paid”, “unpaid” and “overpaid” are to be interpreted on this basis.

Cessation of employment

84.  Where an employer completes a Form P45, the employer must state in it that the employee is a borrower if, on the date of the Form P45—

(a) the employer has received notice that the employee is a borrower as described in regulation 59(1);

(b) the employer has received a Form P46 stating that the employee has a postgraduate master’s degree loan which requires repayment; or

(c) the employer has received information under regulation 53 that the employee has any liability to repay any postgraduate master’s degree loan; and

(d) (where any of paragraph (a), (b), or (c) apply) the employer has not received a notice from HMRC under regulation 59(3) requiring the employer not to make deductions from the employee’s earnings on and after a date before the date on which the person ceased to be an employee.

Penalties

85.—(1) Where in the case of any employee an employer fraudulently or negligently—

(a) makes incorrect deductions; or

(b) makes or receives incorrect payments in a tax year,

in pursuance of this Chapter, the employer is liable to a penalty not exceeding £3000 for each employee for whom incorrect deductions or payments are made.

(2) A penalty under paragraph (1) must not be imposed before the end of the relevant tax year; and no more than one penalty per employee under that paragraph may be imposed in relation to any tax year.

(3) Schedule 56 to the Finance Act 2009 (penalty for failure to pay tax) applies in relation to the late payment from an employer to HMRC of postgraduate master’s degree loan repayments deducted from an employees’ earnings as if—

(a) in relation to all regulations in this Chapter other than regulation 79, payment from an employer to HMRC were a payment of tax falling within item 2 of the table in paragraph 1 of that Schedule;

(b) in relation to regulation 79, payments from an employer to HMRC were payments of tax falling within items 17, 23 or 24 of the table in paragraph 1 of that Schedule;

(c) references to the PAYE Regulations in item 2 of the table in paragraph 1 of that Schedule were references to this Chapter.

(4) Where a Real Time Information employer—

(a) carelessly or deliberately makes an incorrect return under regulations 69 or 74; and

(b) the return contains an inaccuracy which amounts to, or leads to–

(i) an understatement of liability under this Chapter to make payments to HMRC; or

(ii) false or inflated claim for the recovery of payments made to HMRC under this Chapter,

penalties as set out in Schedule 24 to the Finance Act 2007 (penalties for error) apply as they apply in connection with a return for the purposes of the PAYE Regulations.

Collection and recovery of penalties

86.  Section 69 of the 1970 Act (recovery of penalties etc) applies to penalties imposed under this Chapter as it applies to penalties imposed under that Act.

Application of the PAYE Regulations

87.  To the extent that the provisions of the PAYE Regulations apply by virtue of regulation 52 for the purposes of these Regulations, the PAYE Regulations apply as if in regulation 210 (penalties and appeals) an employer is not liable to a penalty if the employer has been liable to a penalty for failing to comply with regulation 205 of those Regulations or regulation 90N of the Contributions Regulations in relation to the same tax year.

(1)

PAYE Online can be accessed at https://www.gov.uk/paye-online.

(2)

PAYE Online for Agents can be accessed at https://www.gov.uk/guidance/payecis-for-agents-online-service.

(3)

S.I. 2005/2045.

(4)

S.I. 2001/1004. These Regulations have been amended but none are relevant.

(5)

1992 c.4. Section 3 was amended by the Social Security Contributions (Transfer of Functions, etc) Act 1999 (c.2) section 2 Schedule 3, and by the Social Security Act 1998 (c.14) sections 48 and 49.

(6)

Section 9 was amended by the Welfare Reform and Pensions Act 1999 (c.30) section 73 and Schedule 9, by the National Insurance Contributions Act 2002 (c.19) section 2, and by the Pensions Act 2007 (c.22) section 15 and Schedule 4.

(7)

S.I. 2003/2682 amended by S.I. 2005/2691, S.I.2006/777, S.I.2007/1077, S.I.2007/2069, S.I.2007/2296, S.I.2007/2969, S.I.2008/782 and S.I.2008/2601.

(8)

1971 c.32.

(9)

S.I. 1989/438 amended by S.I. 1992/219, S.I.1993/775 and S.I.1005/21.

(10)

S.I. 1992/613 amended by S.I. 1992/3008. There are other amending instruments but none are relevant.

(11)

S.I 1981/234.

(12)

S.I. 1981/552, to which there are amendments but none are relevant.

(13)

S.I. 1992/1989.

(14)

S.I. 1988/664, to which there are amendments but none are relevant.

(15)

1987 c.18.

(16)

2008 c.9.