beta This part of GOV.UK is being rebuilt – find out what beta means

HMRC internal manual

Compliance Operational Guidance

Supporting guidance: employer compliance: guidance by subject:settlement: payrolled and non-payrolled benefits

Settlement procedures

When you have established inaccuracies relating to benefits in kind, how you settle these liabilities and calculate penalties will depend on whether or not the employer has

  • registered to payroll benefits, see COG904295
  • provided a specified benefit to a specified employee or group of employees under chapter 3A.

For payrolled benefits

If the employer has registered to payroll benefits and the inaccuracy relates to a specified benefit for a specified employee or group of employees, the benefit is treated as a payment of PAYE income. You should consider Schedule 24 penalties for incorrect returns for both the tax and national insurance (NICs) liabilities.

Note: The employer can carry forward the amount of the taxable benefit to the following tax year (year 2) in certain circumstances, see Payrolling, tax employees’ benefits and expenses through your payroll on gov.uk.

In these circumstances the PAYE tax should be included in the Full Payments Submission (FPS) for year 2 and any recovery of the PAYE tax, for example regulation 80, will be in respect of year 2.

Example

In 2016-17 the employer had an agreement with their employee that they would make good the actual cost of private fuel to avoid a fuel benefit tax charge on a company car.

They might not know how much fuel has been purchased by the end of the tax year because either:

  • they are waiting for the bill for the fuel from their supplier or
  • their employee may not have been in a position to calculate their private miles by 5 April.

The employee has until 1 June 2017 to make good all or part of that cost. If they fail to do so, the employer should

  • work out the fuel benefit charge
  • add the fuel benefit charge as a taxable amount to the next wages payment on or after 1 June 2017
  • calculate and account for the additional PAYE tax due on their FPS.

If you need to raise a regulation 80 for this liability, this will be for the 2017/18 tax year.

For Tax Purposes

The tax is settled either by

  • the employer submitting a corrective FPS or Earlier Year Update (EYU) or
  • a regulation 80 determination (see note above regarding carry forward of liability to year 2).

For NIC purposes

You should seek recovery from the employer for all employees including directors.

For non-payrolled benefits

If the inaccuracy relates to

  • an employer not registered for payrolling benefits
  • an employer registered for payrolling benefits and the expenses or benefits are

  • not specified

            - not provided to specified employees or group of employees

    then they should report the benefits on the P11D.

For tax purposes

If the employee is a director you should see COG930060.

For employees (or where the limits outlined in COG930060 are not met) you should

  • explain to the employer that any liability is strictly that of the employees, but
  • invite the employer to volunteer to settle on their behalf.

There are sound business reasons for HMRC to invite payment and for employers to volunteer settlement, for example:

  • It avoids the probable employee dissatisfaction arising from receiving S9A enquiries when their belief was ‘my employer deals with my tax’.
  • In extreme cases, it avoids the loss of employees, leaving to work elsewhere as a result of that dissatisfaction.
  • While the amount of the tax is ‘grossed up’ to reflect (and only to reflect) the fact that by paying the employees’ tax the employer is giving them a further benefit, nobody is charged interest for the late payment of the tax.
  • Except in the most serious cases - see COG914080 - penalties are not imposed on the employer in connection with the P11D error/failure or against the employee in connection with SA returns.
  • The grossed up tax can be deducted in calculating the employer’s profits for tax purposes.

From HMRC point of view, the department is spared the cost of possibly uneconomic S9A enquiries.

Where the employer agrees to meet the liability see COG908060.

Where the employer refuses to meet the liability see COG908070.

For NIC Purposes

You should seek recovery from the employer for all employees including directors.

Where the employer pays tax on a grossed up basis you must also consider and calculate Class 1 NICs payable on the grossed up tax on the ‘current’ year basis, taking into account the NIC category and likely liability of each of the affected employees if known.

Note: Recovery action should not be delayed pending any S9A enquiry.  Normal time limits apply to the recovery of tax on benefits paid on behalf of the employee by the employer COG915215.

Retired Former Employees

PAYE does not apply to the provision of these benefits so the former employer has to report the non-cash benefit to HMRC - see EIM15200. If the former employer has not made a return of non-cash benefits to HMRC a penalty under S98 TMA70 is due.

Where you identify that benefits have been made available to former employees but have not been returned you may take action to recover the underpayment of tax in the same manner as you would for current employees.

The advantages to the employer in agreeing a voluntary settlement may be less obvious when there are no ongoing employment issues. In such circumstances you should remind the employer that a potential penalty offence has been committed by failing to return the non-cash benefits to HMRC.

Note: Non-cash benefits provided to former employees do not attract Class 1A NICs but Class 1 NICs are payable on any grossed up tax depending on the circumstances of the individual or individuals - see NIM08410 for guidance on calculating Class 1 NICs for former employees.