In message , at
12:35:10 on Sun, 12 Oct 2008, Owain
remarked:
And what evidence would a born-Brit have *apart* from a P45 from a
previous employer?

National Insurance Numbercard issued at age 16. Any payslips or P60
from a previous employer. Any correspondence from Inland Revenue. Any
correspondence from Benefits Agency. Most correspondence from JobCentre.

And these are proving they have a work permit (to use the dumbed down
description)? I suppose they show he once had a work permit. But perhaps
the P45 I was looking for fails that test too
--
Roland Perry

In message , at 11:10:21 on Sun, 12 Oct
2008, Roland Perry wibbled
In message , at
01:10:07 on Sun, 12 Oct 2008, Owain
remarked:
I'm aware of the emergency tax code regime, but doesn't the employer
need at least the employee's NI number first?

The employer would normally obtain this as part of the checking to
ensure the employee has the legal right to work in the UK.

And what evidence would a born-Brit have *apart* from a P45 from a
previous employer?

Long birth certificate or adoption certificate plus a P45 (or other
official document) giving a permanent NINO[1] would satisfy List 2
Combination 1 of the Section 8 checks of the Asylum & Immigration Act
1996 as last defined by SI 2004/755.

Passport showing the employee is a British Citizen will do on its own to
show the employee has the right to work in the UK (as per List 1).

Permanent NINO on its own is not acceptable documentation that the
holder of the NINO currently has the right to work legally in the UK
even if the 2 character prefix shows the holder was born in the UK.

[1] Permanent National Insurance Numbers end in A,B,C or D. NINOs ending
E-Z are not permanent NINOs & neither are those starting TN (which were
phased out as temporary numbers over 2 years ago but some employers
still seem to have not got the message IME).

--
Pedt

In message , at 10:55:19 on
Sun, 12 Oct 2008, Anthony R. Gold wibbled
On Sun, 12 Oct 2008 08:35:05 +0100, Pedt
wrote:

In message , at 18:50:17 on
Sat, 11 Oct 2008, Anthony R. Gold wibbled

you also have obligations both to make insurance payments and also
to withhold money from his pay for tax and insurance.

His pay will be deemed to be net of tax and NI.

Who will "deem" that and under what basis?

If an ET/EAT decide he was an employee for the whole period rather than
self employed they will usually determine that he was paid net for the
whole period.

HMRC will then chase, in that case, the employer for any tax and NI not
paid.

If the ET/EAT throw out employee status, then HMRC will pursue the self
employed person. If payments are not forthcoming then, unless the
employer has solid documentation that the SE person was responsible for
their own tax and NI, the employer will be pursued.

The contract of employment/service was formed with an agreement for gross
compensation pay, as I believe is universal.

Agreed.

The employee/contractor
initially said that he wished to be a self-employed contractor and receive
his entire gross compensation. Later he requested, perhaps in order to
gain access to an employment tribunal, to be treated as an employee with a
consequence that he thereupon became overpaid and under-withheld for the
previous 8 weeks.

No. Further employment would be PAYE if the employee wished and the
employer agreed. It cannot be applied retrospectively on the whim of the
self employed person wanting to become a retrospective PAYE employee nor
on the whim of employer wanting an SE to be a retrospective employee.

--
Pedt

If an ET/EAT decide he was an employee for the whole period rather
than self employed they will usually determine that he was paid net
for the whole period.

That's interesting; do you have any knowledge or evidence that HMRC get
information of this kind from tribunal cases, or accept tribunal decisions
rather than forming their own judgement?

HMRC will then chase, in that case, the employer for any tax and NI
not paid.

Yes, on the basis taht the amount actually paid was the net amount, and PAYE
is due on the grossed-up payment.

If the ET/EAT throw out employee status, then HMRC will pursue the
self employed person. If payments are not forthcoming then, unless the
employer has solid documentation that the SE person was responsible
for their own tax and NI, the employer will be pursued.

It's not really a question of documentation. Employment status depends on
the nature of the relationship, not what the parties describe it as, and no
agreement can change the primary liability for the tax. Of course it is
always wise for the "employer" to take an indemnity from the worker beore
agreeing to pay him without deductions, so that if HMRC claim from the
empoyer he can at least try to get it back from the worker.

The contract of employment/service was formed with an agreement for
gross compensation pay, as I believe is universal.

Agreed.

The employee/contractor
initially said that he wished to be a self-employed contractor and
receive his entire gross compensation. Later he requested, perhaps
in order to gain access to an employment tribunal, to be treated as
an employee with a consequence that he thereupon became overpaid and
under-withheld for the previous 8 weeks.

No. Further employment would be PAYE if the employee wished and the
employer agreed. It cannot be applied retrospectively on the whim of
the self employed person wanting to become a retrospective PAYE
employee nor on the whim of employer wanting an SE to be a
retrospective employee.

Neither is correct, in my view. Unless the nature of the relationship
changed, the worker is likely to have been one or the other throughout;
though if both agreed that the worker should become an employee, it's
unlikely taht a tribunal or HMRC would disagree for the period after that
date. But it remains possible that the worker is deemed to have been
employed thoughout.

The indicators of employed status are listed on the HMRC website. Mainly
they depend on the degree of control exercised by the putative employer.

Chris R

In message , at 11:15:10 on Sun, 12 Oct
2008, Roland Perry wibbled
In message , at 08:35:05 on
Sun, 12 Oct 2008, Pedt remarked:
you also have obligations both to make insurance payments and also
to withhold money from his pay for tax and insurance.

His pay will be deemed to be net of tax and NI.

That's a very good point. iirc You can't go back and make retrospective
deductions of NI under any circumstances,

Agreed.

but I can't see why the final payment can't be made taking into account
any back-tax due.

Only if the appropriate authorities have made a determination that they
are not self employed but an employee prior to the final payment and it
has been determined that he has been paid PAYE gross.

Employees and employers can't change employment status unilaterally when
it becomes advantageous for them to do so.

After all, even if the OP doesn't deduct that tax [1] then the next
employer will [2], so at the end of the day the employee is not out of
pocket either way.

[1] Could be zero, of course, but as others have said more likely to be
"emergency code".

There are three emergency codes currently if there is no recent P45.
603L is normal tax numbers where the cumulative tax free amount is
applied before tax is deducted when P46 box A is ticked, 603LX when box
B of a P46 is ticked where the tax free allowance is split into 52 equal
parts and BR where Box C of a P46 is ticked or no box is ticked or there
is no P46.

603L then they'll pay no tax until cumulative income exceeds the
cumulative tax threshold for that week; 603LX they'll pay tax on
everything above £117 for each individual week; BR they'll pay 20%
on everything.

NI then the lower limit is £105 and is independent of the tax code
applied.

[2] Or maybe the next employer will end up refunding the emergency-code
tax.

If a P6 tax notification results in a tax refund the current employer
offsets that against tax due to HMRC.

--
Pedt

In message
, at
21:10:06 on Wed, 8 Oct 2008, wibbled
I run a small business, and advertised a job (job centre plus), the
vacancy was for just a few hours as and when needed, max of 16 hours,
advertised as employed or self employed.
I preferred employed,

One point that has not surfaced in the ongoing discussions:-

Did you have Employer PAYE and Accounts Office References prior to the
advert?

If not, did you apply for such as an Employer when you appointed the
person who was going to be an employee until you agreed he was Self
Employed on his first day at work? If not, why not?

--
Pedt

On Sun, 12 Oct 2008 10:55:19 +0100, "Anthony R. Gold"
wrote:

On Sun, 12 Oct 2008 08:35:05 +0100, Pedt
wrote:

In message , at 18:50:17 on
Sat, 11 Oct 2008, Anthony R. Gold wibbled

you also have obligations both to make insurance payments and also
to withhold money from his pay for tax and insurance.

His pay will be deemed to be net of tax and NI.

Who will "deem" that and under what basis?

On the basis that salary/wages for employment are always paid Net to
the employee, on a PAYE basis.

The tax inspector who decides he was employed is the one who "deems"
that, but it would undoubtedly be upheld by the commissioners if
appealed.


--
Alex Heney, Global Villager
Nothing is foolproof because fools are so ingenious
To reply by email, my address is alexATheneyDOTplusDOTcom

On Oct 12, 9:10 pm, Pedt wrote:
In message
, at
21:10:06 on Wed, 8 Oct 2008, wibbled

I run a small business, and advertised a job (job centre plus), the
vacancy was for just a few hours as and when needed, max of 16 hours,
advertised as employed or self employed.
I preferred employed,

One point that has not surfaced in the ongoing discussions:-

Did you have Employer PAYE and Accounts Office References prior to the
advert?

No.

If not, did you apply for such as an Employer when you appointed the
person who was going to be an employee until you agreed he was Self
Employed on his first day at work? If not, why not?
No, he "stated" work the very next day.

I intended to made a phone call to my accountant, to discover exactly
what i would have needed (and with the guys NI number), i never made
that call as he had changed his mind.

The infor regarding the 16 hours came from my accountant, ill contact
him again and clarify the point.

This was the first person i had ever intended to employ.



--
Pedt

Owain posted

And asking for his VAT number

Self employed people don't need to be VAT registered unless they have a
much larger turnover than this person will.

or proof of Schedule D tax status.

Schedule D status? That went out with trolleybuses and London fogs.

--
Les