National Insurance Contributions Bill

David Gauke Excerpts

Monday 8th September 2014 Commons Chamber

[The Financial Secretary to the Treasury (Mr David Gauke)]

I beg to move, That the Bill be now read a Second time.

This is the third national insurance contributions—NICs—Bill this Parliament. The Government have already taken action to reduce significantly the burden of NICs on earnings and employment through previous Bills. At Budget 2011, the Chancellor announced a £21 a week above-inflation increase to the employer’s NICs threshold. Last April, the employment allowance was introduced, which will benefit up to 1.25 million businesses and charities. Next April, the vast majority of under 21-year-olds in work will be lifted out of employer NICs, which will support 1.5 million jobs. All those measures have been strongly welcomed by business and have contributed to the current record levels of employment.

This Bill contains four measures: simplifying NICs paid by the self-employed; accelerating the payment to the Exchequer of NICs in dispute in avoidance cases, and providing for the issue of follower notices where the scheme or arrangements have been shown to fail in another party’s litigation; applying new information powers and penalties to promoters of avoidance schemes; and introducing a targeted anti-avoidance rule—TAAR—to prevent people from circumventing new legislation tackling avoidance involving employment intermediaries.

Let me explain each of those four measures in more detail, starting with the simplification of NICs paid by the self-employed, which is contained in clauses 1 and 2, and schedule 1. Hon. Members may recollect that at Budget 2014 the Chancellor announced that the Government intended to simplify the NICs collection process for the self-employed, who currently have to operate two different processes for two separate classes of NICs. This followed a 2012 recommendation by the Office of Tax Simplification and a consultation published in July 2013 entitled “Simplifying the National Insurance Processes for the Self Employed”, which sought views on proposals to simplify class 2 NICs.

The number of self-employed individuals in the UK is growing, with more people having multiple jobs and moving in and out of self-employment. Having two separate collection methods for class 2 and class 4 NICs causes confusion and extra work for both the self-employed and Her Majesty’s Revenue and Customs. The objective behind the measure is to modernise the way class 2 NICs are assessed and collected, making the system simpler and more straightforward, and reducing administrative burdens on the self-employed. Class 2 NICs are currently collected via a flat-rate charge of £2.75 per week, paid through six-monthly billing or by direct debit, while class 4 NICs are a percentage charge on profits—of 9% between the lower and upper profits limit and 2% above the upper profits limit—paid through self-assessment alongside income tax.

The aims of clauses 1 and 2, and schedule 1 are to change the way in which class 2 NICs are structured; change the means by which class 2 NICs are collected, by moving their collection into self-assessment, so that they can be collected alongside class 4 NICs and income tax; change the means by which class 2 NICs are enforced, with changes to associated appeal rights to mirror broadly those for class 4 NICs and income tax; and make consequential changes to legislation relating to maternity allowance to allow women to continue to become eligible for it post-reform.

Those changes are proposed to take effect for the 2015-16 tax year onwards, so that the collection of class 2 NICs under self-assessment will be from 6 April 2016. The changes are aimed at simplifying NICs for the self- employed and small businesses—sole traders, partnerships and unincorporated businesses—by enabling them to report their class 2 NICs liability and pay it through their self-assessment, thus reducing the administrative burden of the two current separate collection mechanisms. The six-monthly billing and direct debit systems will cease from April 2015 and July 2015 respectively.

During the consultation there was some concern that the reform would mean that the self-employed would no longer be able to spread the cost of paying class 2 NICs. I want to take this opportunity to reassure the self-employed that there is already the facility in self-assessment to make budget payments to spread the cost of tax and NICs through the year.

Hon. Members may be interested to know that one of the key changes that we made through this reform is that there will no longer be a need for customers with low profits who want to opt out of paying class 2 NICs to apply for a small earnings exception in advance—something that we know they find confusing and burdensome. Under this reform, customers with profits below the new small profits threshold, which will be equivalent to the current small earnings exception threshold, will not be liable to pay class 2 NICs, but will be able to choose to do so on a voluntary basis. That means that those with low profits who want to opt out of paying class 2 NICs will not need to do anything apart from confirm that when they are completing their self-assessment return, while those who still choose to pay in order to protect the benefits entitlement will be able to do so quickly and easily. Rather than a separate process, the decision will be built into the self-assessment return.

There is a small proportion of HMRC customers who pay class 2 NICs but who are not in self-assessment. Those individuals will continue to get a separate class 2 NICs payment request. They will receive that once a year instead of twice a year as they currently do. Hon. Members will be pleased to learn that the tax information impact note published by HMRC about this measure indicates a net administrative burden reduction to the self-employed of £74 million over five years as a result of these reforms.

I now wish to take the House through the provisions in the Bill that deal with accelerating the payment to the Exchequer of amounts of NICs in dispute in avoidance cases. That also includes providing for the issue of follower notices where there is a relevant case in which the scheme or arrangement has been shown to fail in another party’s litigation. Those provisions are in clauses 3 and 4 and schedule 2.

The provisions broadly follow, for NICs, new powers that are included in the Finance Act 2014—the hon. Member for Birmingham, Ladywood (Shabana Mahmood) and I debated this matter not that long ago—which allow HMRC to issue a notice to taxpayers who have used avoidance schemes that have failed before the courts in another party’s litigations. The provisions in the Bill and the Finance Act 2014 are estimated to raise £5 billion in tax and NICs for the Exchequer in the years ahead.

A follower notice sets out HMRC’s view that a judicial decision in another case is directly relevant and that those who receive the notice should settle their disputes. If the taxpayer does not settle in response to this notice, they will face a tax-geared penalty if they are unable to show that their case is materially different from the other party’s litigation or if they did not have reasonable grounds to continue the dispute.

An accelerated payment may be required from taxpayers in the following circumstances: where a follower notice has been issued and the taxpayer decides not to settle their dispute; where taxpayers are involved in schemes subject to disclosure under the disclosure of tax avoidance schemes—DOTAS—rules: and where taxpayers have used arrangements that HMRC decides to counteract under the general anti-abuse rule.

For both follower notices and accelerated payments, taxpayers will have 90 days to make representations. There is no formal right of appeal against the notices or payments, but taxpayers can appeal against any penalties. The measures are expected to lead to the issue of payment notices to around 43,000 taxpayers involved in avoidance schemes currently under dispute with HMRC over the period to the end of March 2016.

Now that I have outlined what the provisions in the Bill do, I want to address some of the points raised in debate on the Finance Bill and by some commentators. One point that has been made is that the measure effectively assumes that someone is guilty before they are proved innocent. The Government do not agree, as most people pay their tax up front and can apply for a refund afterwards, for example through pay-as-you-earn, VAT and tax on interest income, and the measure extends the existing practice of having disputed tax sit with the Exchequer. That is already the case when taxpayers seek tax refunds for disputed avoidance. The measure in no way alters the rights of appeal that people already have when disputing the tax or NICs they owe HMRC; it is only about where the money sits while the dispute continues.

Hon. Members might also be aware that the measure has been described as having retrospective effect. The Government do not agree. It is not retrospective and there is no change to the liability to make a contribution. It involves NICs that the individual and his or her employer would already have paid if they had not entered into the avoidance scheme. The taxpayer can continue to dispute the case and will be repaid with interest if they succeed.

It has also been suggested that taxpayers are likely to find it difficult to find the money to pay. The Government’s view is that we would expect a prudent taxpayer to anticipate that an avoidance scheme might not deliver savings and would be subject to challenge by HMRC and that such a taxpayer should have made some provision against that possibility. I can reassure the House, however, that when a taxpayer has genuine difficulties in paying some or all of the NICs, HMRC will use its usual collection tools, including appropriately structured payment arrangements, to assist taxpayers in paying the required amounts.

I have seen representations from businesses suggesting that they entered into such arrangements to reduce business costs and that the measures will now put unacceptable pressure on their business activity. The Government have put in place an attractive business tax regime and expect everyone to pay the taxes that are due. Avoidance involves trying to pass the burden on to the vast majority who have not tried to avoid tax and where business is concerned it involves attempts to gain an unfair competitive advantage against those who pay their taxes and do not try to avoid tax.

I want now to take the House to the provisions in the Bill that apply new information powers and penalties to the highest risk promoters of tax-avoidance schemes. The provisions are also contained in clauses 3 and 4 and schedule 2. The measure was announced for tax in Budget 2013 and the Government’s intention has been to extend it to NICs at the earliest opportunity. A consultation on the tax aspects, called “Raising the stakes on tax avoidance”, ran until 4 October 2013.

Hon. Members might also be aware that the Finance Act 2014 includes legislation that allows HMRC to issue conduct notices to promoters of tax-avoidance schemes and monitor promoters who breach a conduct notice. The Bill applies the tax legislation to NICs so that the legislation operates as one unified measure that covers tax and national insurance contributions. Monitored promoters will be subject to new information powers and penalties, which will also apply to intermediaries who continue to represent them after the monitoring commences. The monitored promoter will be named by HMRC and the naming details will include information on why the conduct notice was breached. It will be required to inform its clients that it is being monitored by HMRC. Clients of monitored promoters will also be subject to certain obligations that have a penalty for non-compliance and extended time limits for assessments.

The measure is part of the Government’s strategic response to avoidance. It will deter the use of avoidance schemes through influencing the behaviour of promoters, their intermediaries and clients and it is aimed at changing the behaviour of promoters of NICs and tax-avoidance schemes. Naming a monitored promoter should deter intermediaries from acting for them and clients and potential clients from using their products. I can confirm to the House that the measure is not expected to have any significant economic impact and that the cost to HMRC of dealing with the additional information and reporting it is expected to be negligible.

Now that I have outlined what those provisions do, I would again like to address several points that have been raised during Finance Bill debates and by some commentators. It has been suggested that the Bill is too wide and will catch innocent promoters, but the Government disagree. To be covered by the legislation, a person must be the promoter of avoidance schemes that give a tax advantage, or that avoid or reduce a NICs liability, and to have made a significant breach of a threshold condition. The vast majority of promoters will not be in that position.

Hon. Members may be aware that it has been suggested that this response to avoidance is disproportionate, but we disagree. The Government have made it absolutely clear that we are determined to crack down on tax avoidance. The vast majority of taxpayers pay the right tax and NICs at the right time, and should not have to subsidise those who participate in avoidance.

One part of the Government’s strategy is to tackle the behaviour of the supply side of the market—those highest-risk promoters who design and sell avoidance schemes. We want to ensure that promoters who avoid their obligations to HMRC and their clients are made to change their behaviour, and the Bill achieves that by imposing consequences for those who do not meet acceptable standards of behaviour. It requires monitored promoters to tell HMRC about their schemes and clients, and there will be significant fines if they do not comply.

Another argument that has been made against the measures is that they apply retrospectively. The House will not be surprised to learn that the Government disagree with that proposition. While the provisions involve looking back at a promoter’s past behaviour, they are designed to improve current and future behaviour. It is only if there is no improvement in the promoter’s compliance with their obligations that they are subject to significant information powers and penalties.

I shall now describe to the House the provisions relating to the new targeted anti-avoidance rule that will prevent people from circumventing new legislation that tackles avoidance involving employment intermediaries. The proposed TAAR is set out in clause 5. The National Insurance Contributions Act 2014 strengthened legislation in respect of offshore employment intermediaries. It was specifically intended to address the non-payment of employer’s national insurance in the oil and gas industry involving the placement outside the UK of the employer of oil and gas workers working on the UK continental shelf.

Hon. Members may be aware that the temporary labour market is quick to react to legislative change and to find new convoluted ways to reduce the amount of income tax and NICs that would otherwise be liable to be paid. Stakeholders have indicated to HMRC that intermediaries involved in the facilitation of false self-employment may set up avoidance vehicles with convoluted structures that are specifically designed to circumvent the 2014 Act. To dissuade such intermediaries, the Government propose that a TAAR is included in NICs legislation to deter such avoidance. That TAAR is similar to the tax TAAR established for the same purpose through the Finance Act 2014. The rule will focus on the motive for setting up arrangements—on whether it is to avoid NICs—and whether those arrangements result in less NICs being paid. To ensure that the tax and NICs TAARs operate as one, both will take effect from 6 April 2014.

Let me explain why we are bringing forward the TAAR now. The use of employment intermediaries as a way of avoiding tax has grown in recent years, and they are increasingly marketed and promoted as a way of avoiding employer’s NICs. The TAAR will dissuade some businesses from entering into convoluted arrangements to avoid NICs. The proposed measures will help to level the playing field for UK businesses and ensure that compliant UK businesses that facilitate the UK’s flexible labour market are not undercut by those trying to avoid tax.

The Government have already taken action significantly to reduce the burden of NICs on earnings and employment through previous Bills. At Budget 2011, the Chancellor announced a £21 a week above-inflation increase to the employer’s NICs threshold. Last April the employment allowance was introduced, which will benefit up to 1.25 million businesses, and next April the vast majority of under-21s will be lifted out of employer NICs, which will support 1.5 million jobs.

The Bill introduces further welcome measures and is both important and necessary. The modernisation of the way class 2 NICs are assessed and collected will make the system simpler and more straightforward and will reduce administrative burdens on the self-employed. The Bill also includes a package of measures aimed at activity that attempts to reduce the amount of NICs payable to the Exchequer. I commend the Bill to the House.