Security for tax at risk of being unpaid: requiring a PAYE/NIC security from more than one person
When we require security from an employer we can also require security from any of the people listed at SG21000. We can do this where the employer is a company or a Limited Liability Partnership.
You may require others to give security in addition to the employer when your risk assessment shows that the others have a history of PAYE/NICs non-compliance.
The others that you ask for security must be those who control the business and have the ability to influence the payment of the amounts the employer is required to pay HMRC. They will not be those people whose role in the business is purely administrative. The list of questions at SG24250 is a useful aid in deciding who to ask for security.
When you ask for security you will ask for one sum to be paid. The people you ask will be jointly and severally liable to give security. This means that all those persons that we ask to give security (PGS) are fully liable for the whole sum that we ask for. It is for them to decide among themselves who should give security and how they should give it.
When you ask for security to be given jointly and severally from a number of people you give each person a Notice of Requirement (NOR) for the same sum, see SG42100. Each person to whom you give an NOR commits an offence if they do not provide security, and each person is liable on conviction to a fine of up to £5,000.
The partners of ordinary partnerships are jointly liable for the debts of the partnership, so it is not necessary for us to also require security from each of the partners if the employer is a partnership.
Your risk assessment shows that Bennett 99 Ltd is the third company in succession run by Mark, Angela and Lorna. The previous two companies went into liquidation owing PAYE/NICs.
Lorna, the company secretary, has no control over the finances of Bennett 99 Ltd so she is not a person we can ask for security.
Mark is a director of Bennett 99 Ltd and Angela was a director of the failed companies, but has since been struck off. She is a shadow director who controls the finances of Bennett 99 Ltd.
The amount of security you require is £75,000 jointly and severally from Mark, Angela and Bennett 99 Ltd. You serve NORs on each asking for £75,000, to be given on the same date, to be held for 24 months. The covering letter you issue with the NORs names each of the other persons required to give the £75,000 security jointly and severally with the others.
If you do not get the £75,000 security, Mark, Angela and Bennett 99 Ltd can each be prosecuted and each can be liable on conviction to a fine of up to £5,000.