Income Tax (Earnings and Pensions) Act 2003

Chapter 12U.K. [F1Other amounts] treated as earnings

[F2Payments] U.K.

221Payments where employee absent because of sickness or disabilityU.K.

(1)This section applies if—

(a)an employee is absent from work because of sickness or disability, and

(b)a qualifying sickness payment is made in respect of the employee’s absence from work.

(2)But this section does not apply if the qualifying sickness payment constitutes earnings from the employment by virtue of any other provision.

(3)The qualifying sickness payment is to be treated as earnings from the employment in respect of the period of absence.

(4)If the qualifying sickness payment is made from funds to which the employer and the employer’s employees have made contributions, only the amount of the payment which it is just and reasonable to attribute to the employer’s contributions is treated as earnings under this section.

(5)In this section “qualifying sickness payment” means a payment which meets conditions A and B.

(6)Condition A is that the payment is made—

(a)to the employee or to a member of the employee’s family,

(b)to the order of such a person, or

(c)to the benefit of such a person.

(7)Condition B is that the payment is made—

(a)by reason of the employment, and

(b)as a result of arrangements entered into by the employer.

222Payments by employer on account of tax where deduction not possibleU.K.

(1)This section applies if—

(a)an employer is treated by virtue of sections 687, [F3687A,] 689 [F4, 689A] and 693 to 700 as having made a payment of income of an employee (“the notional payment”),

(b)the employer is required by virtue of section 710(4) to account to [F5an officer of Revenue and Customs] for an amount of income tax (“the due amount”) in respect of the notional payment, and

(c)the employee does not, before the end of the period of [F690 days] [F7after the end of the tax year in which the relevant date falls], make good the due amount to the employer.

(2)The due amount is to be treated as earnings from the employment for the tax year in which the [F8relevant date] falls.

(3)In this section “employer”, in relation to any provision of sections 687, [F9687A,] 689, 693 to 700 or 710, means the person taken to be the employer for the purposes of that provision.

It also includes a person who is treated as making a payment of PAYE income by virtue of section 689(2) (payments by person for whom employee works but who is not the employer) [F10or section 689A(3) (deemed payments of PAYE income of continental shelf workers by person other than employer)] .

[F11(4)In this section “the relevant date” means—

(a)if the employer is treated by virtue of any Act as making the notional payment before the date on which the Act is passed, that date, and

(b)in any other case, the date on which the employer is treated as making the notional payment.]

223Payments on account of director’s tax other than by the directorU.K.

(1)This section applies if in a tax year—

(a)a person (“P”) makes a payment to another person who is employed as the director of a company,

(b)the payment is of, or on account of, earnings from the director’s employment,

(c)PAYE regulations require P to deduct an amount of income tax (“the deductible tax”),

(d)P deducts none, or only some, of the deductible tax, and

(e)either or both of the following occur—

(i)P accounts to [F12the Commissioners for Her Majesty’s Revenue and Customs] for some or all of the deductible tax (whether or not P has actually deducted the amount accounted for);

(ii)one or more persons other than P (apart from the director) account to [F12the Commissioners for Her Majesty’s Revenue and Customs] for some or all of the deductible tax.

(2)For the purposes of this section it does not matter whether the director’s employment is held at the time when P makes the payment mentioned in subsection (1)(a) so long as it is held at some point in the tax year in which the payment is made.

(3)References in this section to employment as a director accordingly include prospective or past employment as a director.

(4)The deductible tax accounted for to [F12the Commissioners for Her Majesty’s Revenue and Customs] is to be treated as earnings of the director from the director’s employment for the tax year in which it is accounted for.

(5)But if—

(a)the deductible tax is accounted for after the director’s employment has ceased, and

(b)the employment ceased in a tax year before the one in which the deductible tax is accounted for,

the deductible tax is treated as earnings for the tax year in which the director’s employment ceased.

(6)The following rules apply to the calculation of the amount to be treated as earnings under this section—

(a)any amount accounted for after the death of the director is to be disregarded;

(b)if P deducts some of the deductible tax, the amount treated as earnings is reduced by the amount deducted;

(c)if the director makes good to P or to another person some or all of the deductible tax which P or the other person accounts for, the amount treated as earnings is reduced by the amount made good.

(7)This section does not apply if the director has no material interest in the company and either—

(a)the director is employed as a full-time working director of the company, or

(b)the company is—

(i)non-profit-making, or

(ii)[F13a charitable company] .

(8)In this section—

• “director” has the same meaning as in the benefits code (see section 67);

• “director’s employment”, in relation to a person who is employed as a director, means that employment;

• “full-time working director” has the same meaning as in the benefits code (see section 67);

• “material interest” has the same meaning as in the benefits code (see section 68);

• “non-profit-making”, in relation to a company, means that—

  (a)

  the company does not carry on a trade, and

  (b)

  its functions do not consist wholly or mainly in the holding of investments or other property.

F14224Payments to non-approved personal pension arrangementsU.K.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

225Payments for restrictive undertakingsU.K.

(1)This section applies where—

(a)an individual gives a restrictive undertaking in connection with the individual’s current, future or past employment, and

(b)a payment is made in respect of—

(i)the giving of the undertaking, or

(ii)the total or partial fulfilment of the undertaking.

(2)It does not matter to whom the payment is made.

(3)The payment is to be treated as earnings from the employment for the tax year in which it is made.

(4)Subsection (3) does not apply if the payment constitutes earnings from the employment by virtue of any other provision.

(5)A payment made after the death of the individual who gave the undertaking is treated for the purposes of this section as having been made immediately before the death.

[F15(6)This section applies only if—

(a)section 15 applies to any general earnings from the employment, and would apply even if the individual made a claim under section 809B of ITA 2007 (claim for remittance basis) for the tax year mentioned in subsection (3), or

(b)section 27 (UK-based earnings of non-UK resident employee) applies to any general earnings from the employment.]

(8)In this section “restrictive undertaking” means an undertaking which restricts the individual’s conduct or activities.

For this purpose it does not matter whether or not the undertaking is legally enforceable or is qualified.

226Valuable consideration given for restrictive undertakingsU.K.

(1)In a case where—

(a)an individual gives a restrictive undertaking in connection with the individual’s current, future or past employment, and

(b)valuable consideration that is not in the form of money is provided in respect of—

(i)the giving of the undertaking, or

(ii)the total or partial fulfilment of the undertaking,

section 225 applies as it would if a payment of an amount equal to the value of the consideration had been made instead.

(2)For this purpose—

(a)merely assuming an obligation to make over or provide valuable property, rights or advantages is not valuable consideration, but

(b)wholly or partially discharging such an obligation is.

[F16Shares of employee shareholdersU.K.

226AAmount treated as earningsU.K.

(1)This section applies if shares having a market value of no less than £2000 are acquired by an employee in consideration of an employee shareholder agreement.

(2)An amount calculated in accordance with subsection (3) is to be treated as earnings from the employment, in respect of the acquisition of the shares, for the tax year in which they are acquired.

But this is subject to subsection (4).

(3)The amount is—

But if P exceeds MV, the amount is nil.

(4)If the shares are acquired pursuant to an employment-related securities option, subsection (2) does not apply.

(5)If subsection (2) applies, nothing else constitutes earnings under this Part from the employment in respect of the acquisition of the shares.

(6)For the purposes of this section and sections 226B to 226D—

• shares are “acquired” by an employee if the employee becomes beneficially entitled to them (and they are acquired at the time when the employee becomes so entitled);

• “employee shareholder agreement” means an agreement by virtue of which an employee is an employee shareholder (see section 205A(1)(a) to (d) of the Employment Rights Act 1996);

• “employee shareholder share” means a share acquired by an employee in consideration of an employee shareholder agreement;

• “employee” and “employer company”, in relation to an employee shareholder agreement, mean the individual and the company which enter into the agreement;

• “employment-related securities option” has the same meaning as in Chapter 5 of Part 7 (see section 471(5));

• “market value” has the same meaning as it has for the purposes of TCGA 1992 by virtue of Part 8 of that Act; and the market value of shares is their market value on the day on which they are acquired (but see also subsection (7)).

(7)For the purposes of subsection (1), the market value of the shares is to be determined ignoring—

(a)any election under section 431 (election for market value of restricted shares to be calculated as if not restricted), and

(b)section 437 (market value of convertible securities to be determined as if not convertible).

226BDeemed payment for employee shareholder sharesU.K.

(1)This section applies if shares having a market value of no less than £2000 are acquired by an employee in consideration of an employee shareholder agreement.

(2)Where all the shares acquired in consideration of the agreement are acquired on the same day, the employee is to be treated, for the purposes of this Act, as having made on that day a payment of £2000 for those shares.

(3)Where—

(a)shares are acquired by the employee in consideration of the agreement on more than one day, and

(b)of those shares, shares having a market value of not less than £2000 are acquired on the first of those days,

the employee is to be treated for the purposes of this Act as having made, on the first of those days, a payment of £2000 for the shares acquired on that day.

(4)If the market value of the shares acquired by the employee on the day mentioned in subsection (2) or (3)(b) exceeds £2000, the amount of the payment under subsection (2) or (3) which the employee is to be treated as having made for each of the shares is an amount equal to the appropriate proportion of the market value of that share.

(5)The “appropriate proportion” is the following—

(6)This section is subject to—

(a)section 226C (only one payment deemed to be made under agreements with associated companies), and

(b)section 226D (no deemed payment if shareholder or a connected person has a material interest in the company).

(7)Except as provided by this section, for the purposes of this Act the employee is to be treated as having given no consideration for shares acquired in consideration of the agreement.

(8)Section 226A(7) applies for the purposes of this section as it applies for the purposes of section 226A(1).

226COnly one payment deemed to be made under associated agreementsU.K.

(1)An employee who is treated as having made a payment under section 226B for shares acquired in consideration of an employee shareholder agreement (“the relevant agreement”) is not to be treated as having made a payment for any other qualifying shares.

(2)“Qualifying shares” means employee shareholder shares in—

(a)the employer company in relation to the relevant agreement, or

(b)an associated company of that company,

which are acquired by the employee in consideration of an agreement within subsection (3).

(3)An agreement is within this subsection if it is—

(a)another employee shareholder agreement with the same employer company, or

(b)an employee shareholder agreement with an associated company of that company.

(4)For the purposes of this section—

(a)a company is an “associated company” of another if—

(i)one of the two has control of the other, or

(ii)both are under the control of the same person or persons, and

(b)if a company controls another when an employee shareholder agreement is entered into with the employee, paragraph (a) applies as if that continued to be the case (in addition to any other circumstances) when any subsequent employee shareholder agreement is entered into with that employee.

(5)But subsection (4)(b) does not apply as between two companies if—

(a)one of the companies has been dissolved,

(b)the period of two years beginning with the date of the dissolution has passed, and

(c)the employee has not, at any time in that period, been engaged in any office or employment (including engagement under a contract for services) with any company which is an associated company of the dissolved company.

(6)In this section “control” is to be read in accordance with sections 450 and 451 of CTA 2010.

226DShareholder or connected person having material interest in companyU.K.

(1)No payment is treated as made under section 226B in respect of any shares if, on the date on which the shares are acquired—

(a)the employee has a material interest in the employer company or a relevant parent undertaking, or

(b)the employee is connected with an individual who has a material interest in the employer company or a relevant parent undertaking.

(2)No payment is treated as made under section 226B in respect of any shares if—

(a)at any time in the period of one year ending with the date on which the shares are acquired, the employee had a material interest in the employer company or a relevant parent undertaking, or

(b)on the date on which the shares are acquired, the employee is connected with an individual who, at any time in the period of one year ending with that date, had a material interest in the employer company or a relevant parent undertaking.

(3)Subsections (4) and (5) define “material interest” for the purposes of this section.

Those subsections must be read together with subsections (6) to (8).

(4)An individual (“A”) has a material interest in a company if at least 25% of the voting rights in the company are exercisable—

(a)by A,

(b)by persons connected with A, or

(c)by A and persons connected with A together.

(5)If a company is a close company, an individual (“A”) has a material interest in it if—

(a)A,

(b)persons connected with A, or

(c)A and persons connected with A together,

possess such rights as would, in the event of the winding up of the company or in any other circumstances, give an entitlement to receive at least 25% of the assets that would then be available for distribution among the participators.

(6)For the purposes of subsection (1), A is to be treated as having a material interest in a company at any time if either of the following conditions is met.

(7)The first condition is that—

(a)A,

(b)persons connected with A, or

(c)A and persons connected with A together,

have an entitlement to acquire such rights as would (together with any existing rights) give A a material interest in the company.

(8)The second condition is that there are arrangements in place between—

(a)the employer company or a relevant parent undertaking, and

(b)A, or persons connected with A, or A and persons connected with A together,

which enable A or those persons to acquire such rights as would (together with any existing rights) give A a material interest in the company.

(9)In this section—

• “arrangements” includes any agreement, understanding, scheme, transaction or series of transactions (whether or not legally enforceable);

• “close company” includes a company that would be a close company but for—

  (a)

  section 442(a) of CTA 2010 (exclusion of companies not resident in the United Kingdom), or

  (b)

  sections 446 and 447 of CTA 2010 (exclusion of certain quoted companies);

• “relevant parent undertaking” means any parent undertaking of the employer company and for this purpose “parent undertaking” is to be read in accordance with section 1162 of the Companies Act 2006.]