The Social Security (Contributions) (Amendment No. 3) Regulations 2009

Amendment of Schedule 4

8.—(1) Schedule 4 is amended as follows.

(2) In paragraph 1(2) omit the definition of “HMRC”(1).

(3) In paragraph 15(7) (specified amount of earnings-related contributions payable by the employer) for “paragraph 26(1) and the provisions of paragraph 26” substitute “Schedule 36 to the Finance Act 2008 (information and inspection powers) and the provisions of paragraph 26A”.

(4) For paragraph 26 (inspection of employer’s records) substitute—

“Retention by employer of contribution and election records

26.— (1) An employer must keep and preserve all contribution records which are not required to be sent to HMRC by other provisions in these Regulations for not less than—

(a) three years after the end of the tax year to which they relate; or

(b) for documents or records relating to information about the amounts of Class 1A and Class 1B contributions, three years after the end of the year in which a contribution became payable.

(2) The duty under paragraph (1) may be discharged by preserving the contribution records in any form or by any means.

(3) Where an election has been made jointly by the secondary contributor and the employed earner for the purposes of paragraph 3B(1) of Schedule 1 to the Act(2), the records which the secondary contributor is obliged by paragraph 8 to maintain shall be retained by the secondary contributor throughout the period for which the election is in force and for six years after the end of that period.

(4) In this paragraph “contribution records” means wages sheets, deductions working sheets (other than deductions working sheets issued under regulation 35 of the PAYE Regulations(3) (simplified deduction schemes: records)) and other documents or records relating to—

(a) the calculation of payment of earnings to the employer’s employees or the amount of the earnings-related contributions payable for those earnings;

(b) the amount of any Class 1A contributions or Class 1B contributions payable by the employer; and

(c) any information about the amounts of Class 1A and Class 1B contributions.

(5) For the purposes of this paragraph “employer”—

(a) includes, in relation to a Class 1A contribution, the person liable to pay such a contribution in accordance with section 10ZA of the Act (liability of third party provider of benefits in kind); and

(b) means, in relation to a Class 1B contribution, the person liable to pay such a contribution in accordance with section 10A of the Act.

Certificate of employer’s liability to pay contributions after inspection of documents

26A.— (1) An officer of Revenue and Customs(4) may, by reference to the information obtained from an inspection of the documents and records produced under Schedule 36 to the Finance Act 2008 (information and inspection powers), and on the occasion of each inspection, prepare a certificate showing—

(a) the amount of earnings-related contributions which it appears that the employer is liable to pay to HMRC, excluding any amount deducted by the employer by virtue of the Compensation of Employers Regulations(5) for the years or tax periods covered by the inspection; or

(b) the amount of any Class 1B contributions which it appears that the employer is liable to pay to HMRC for the years covered by the inspection, or such an amount in addition to an amount referred to in paragraph (a);

together with any amount of earnings-related contributions or Class 1B contributions or a combination of those classes of contributions, which has not been paid to HMRC or, to the best of the officer’s knowledge and belief, to any other person to whom it might lawfully be paid.

(2) The production of a certificate mentioned in sub-paragraph (1) shall, unless the contrary is proved, be sufficient evidence that the employer is liable to pay to HMRC in respect of the years or, as the case may be, tax periods mentioned in the certificate, the amount shown in the certificate as unpaid; and any document purporting to be such a certificate shall be treated as such a certificate until the contrary is proved.

(3) The provisions of paragraph 16 shall apply with any necessary modifications to the amount shown in such a certificate.

(4) For the purposes of this paragraph “employer” has the meaning given by paragraph 26(5). ”.

(5) In sub-paragraph (6)(a) of paragraph 29B(6) (relevant contributions debts of managed service companies) for “paragraph 26 (inspection of employer’s records)” substitute “paragraph 26A (certificate of employer’s liability to pay contributions after inspection of documents)”.

(6) In sub-paragraph (7) of paragraph 29D (time limits for issue of transfer notices) for “paragraph 26” substitute “Schedule 36 to the Finance Act 2008”.

(7) After paragraph (4) of paragraph 29F insert—

“(5) For the purposes of sub-paragraph (3) “the reckonable date” has the meaning given by paragraph 17(3)(b)(i).”.

(1)

The definition of “HMRC” was inserted by S.I. 2007/1056.

(2)

Regulation 1(2) of S.I. 2001/1004 defines “the Act” as meaning the Social Security Contributions and Benefits Act 1992.

(3)

Regulation 1(2) of S.I. 2001/1004 defines “the PAYE Regulations” as meaning the Income Tax (Pay As You Earn) Regulations 2003; this definition was inserted by S.I. 2004/770.

(4)

Schedule 1 to the Interpretation Act 1978 (c. 30) defines “officer of Revenue and Customs” as having the meaning in section 2(1) of the Commissioners of Revenue and Customs Act 2005 (c. 11); this definition was inserted in the former Act by section 2(7) of the latter.

(5)

Paragraph 1 of Schedule 4 to S.I. 2001/1004 defines “Compensation of Employers Regulations” as meaning the Statutory Maternity Pay (Compensation of Employers) and Miscellaneous Amendments Regulations 1994 and the Statutory Sick Pay Percentage Threshold Order 1995.

(6)

Paragraphs 29A to 29L were inserted by S.I. 2007/2068.