ESM8085 - Basic principles: what happens when there is a payment from a relevant engagement

Paragraph 2 Schedule 12 Finance Act 2000/Section 50 ITEPA 2003

Regulation 6(3) SI 2000 No.727

Where an intermediary has a relevant engagement to which the legislation applies, then if a worker receives, or is entitled to receive, directly or indirectly, a payment from the intermediary which is not employment income for tax nor earnings for Class 1 NICs, for example a dividend, tax and Class 1 NICs must be paid on a minimum amount of salary. This will either take the form of actual payments during the year or, in their absence, a notional payment deemed to have been paid to the worker by the intermediary on the last day of the tax year, or earlier in certain cases (see ESM8240)

This is referred to as “the deemed payment” in the tax legislation, and as “attributable earnings” in the NICs regulations.

Where the legislation applies it has the following effects:

• the client is not affected and continues to make gross payments as before
• the intermediary is treated as making a payment to the worker which is taxable as employment income and subject to Class 1 NICs. For NICs purposes, the intermediary is treated as the secondary contributor.
• the worker is treated as receiving a payment chargeable to income tax as employment income and subject to Class 1 NICs from the intermediary, see ESM8245. For NICs purposes, the worker is treated as an employed earner of the intermediary for the purposes of Parts I to V of the Social Security Contributions and Benefits Act 1992 (in Northern Ireland, the Social Security Contributions and Benefits (Northern Ireland) Act 1992).