Policy paper

Revenue and Customs Brief 11 (2014): the Social Security (Categorisation of Earners) Regulations in relation to entertainers

Published 31 March 2014

Purpose of this brief

The Social Security (Categorisation of Earners) Regulations in relation to entertainers.Regulation 60 of the Social Security (Contributions) Regulations 2001 Invitation to specified entertainers to apply to have Class 1 employee’s NationaI Insurance contributions (NICs) treated as paid.

Who should read this?

Any individual engaged as an entertainer (i.e. actor, singer, musician or in any similar performing capacity) under standard Equity or Musicians’ Union contract(s) for any period(s) between 6 April 2003 and 5 April 2011.

Agents or accountants acting for any entertainer described above who potentially may fall into one of the categories further described.

Equity, Musicians Union officials or other representative bodies able to identify any individual or groups of entertainers who potentially satisfy the qualifying conditions described below. In these circumstances it would be appreciated if this briefing was brought to the attention of the entertainers concerned.

Background

The Social Security (Categorisation of Earners) Regulations 1978 made provision for treating entertainers who were not employed under a contract of service (an employee’s contract) as employees for NICs purposes. The Regulations were revised in 2003 to their present format and it was announced in Revenue and Customs Brief 35 (2013) that the regulations are to be revoked from 6 April 2014.

Revenue and Customs Brief 19 (2012) issued on 14 June 2012 set out HM Revenue and Custom’s (HMRC) position on the liability of entertainers following the decision of the Upper Tribunal (UT) to uphold the decision of the First Tier Tribunal (FTT) which dismissed an appeal in the case of ITV Services Ltd v Commissioners for HMRC. A further appeal by ITV Services Ltd to the Court of Appeal (COA) was also dismissed and the relevant details of this decision were reported in Revenue and Customs Brief 29/13 on 2 October 2013. Both of these decisions effectively widened the scope of the legislation as it stood following the decision of the FTT on 23 November 2010 to the extent that some contracts previously considered not to fall within the legislation now did so. For that reason HMRC set out its position on the retrospective application of the UT and COA decisions in the above briefings as follows:

‘Where HMRC had previously issued a written opinion to a party that Class 1 NICs were not due in respect of a particular contract (or identical contracts) because HMRC did not consider the relevant payments to be “by way of salary,” it would not seek recovery retrospectively of the unpaid NICs that were due and payable prior to 6 April 2011.’ This could potentially leave the individual entertainer with a shortfall in their NIC record through no fault of their own which HMRC is obliged to redress.

Legislation

Where a liability to pay Class 1 NICs arises, those NICs should be paid and recorded to the individual’s NI account. However, there are occasions, like those covered by this briefing, where despite their being a Class 1 liability, no NICs are recorded on an individual’s account for that employment. Where this is the case it may be possible to record the missing NICs as “Treated as Paid”.

Treating as paid is legislative and is provided for under the provisions of Regulation 60 of the Social Security (Contributions) Regulations 2001. This regulation allows for unpaid primary Class 1 NICs to be treated as paid, but only for the purpose of entitlement to contributory benefit.

Primary Class 1 NICs can be treated as paid provided the failure to pay was not:

• with the consent or connivance of the employee
• attributable to any negligence on the part of the employee

Treating NICs as paid under regulation 60 may only be considered when primary Class 1 NICs have not been paid to HMRC.

Regulation 60 therefore serves to protect the benefit entitlement of the individual where primary NICs have not been paid but the employee cannot be held responsible for that failure to pay.

Primary Class 1 NICs will therefore be treated as paid where we can establish that:

• there is a Class 1 NICs liability
• the primary Class 1 NICs have not been paid to HMRC
• the failure to pay was not due to the consent or connivance, or any negligence on the part of the employee

In the case of qualifying entertainers the above will apply and primary NICs for those engagements can be treated as paid.

Arrangements for applying to have Class 1 employee’s NICs treated as paid

Who can apply?

HMRC believes that the Regulation 60 provisions apply to a small number of entertainers who were engaged for periods between 6 April 2003 (when the current ‘entertainers’ regulations were introduced) and 5 April 2011 and, for the period(s) of the engagement(s), their engager did not pay employers and employees Class 1 NIC because HMRC had given a written opinion to their engager that there was no liability for Class1 NICs.

How do I know if I am eligible to have Class 1 employee’s NICs treated as paid?

Applications for treating Class 1 employee’s NICs as paid

How to apply

Entertainers who were engaged to provide their services between 6 April 2003 and 5 April 2011 and were aware or have been made aware that a written opinion was given by HMRC between these dates that no Class 1 NICs were due for that engagement are invited to apply by downloading an application form CA9184 (PDF 204K) as soon as possible.

When applying all sections of the form must be completed to enable us to check that your particular circumstances meet the criteria for entitlement to have employees’ Class 1 NICs treated as paid. The form will ask you to provide:

• the name of the party that engaged you (if this was not the producer)
• the start and end dates that work was undertaken for the engagement, the title of the entertainment production and the engager’s name (producer of the entertainment)
• information relating to the frequency of payment i.e. whether monies were received weekly/monthly etc
• the amount of payment you received gross of any agent’s or other fees for each tax year whilst employed by this engager
• details of any self employment undertaken during t he same period that you were engaged

A copy of the original written opinion from HMRC should also be included with the application where this is available.

Please address applications to:

Film and Production Unit, Floor 2
HM Revenue and Customs
Weardale House
Washington
Tyne and Wear
NE37 1LW

The above location applies to ALL applications whether from entertainers in the TV industry, Film Industry or musicians. The special arrangements which HMRC is making in order to undertake action in these cases is expected to last no more than 2 years so it is important to apply as soon as possible.

If your application is accepted you will be notified once your NI record has been amended.

Issued 31 March 2014