S.I. No. 302/1989 - Social Welfare (Collection of Employment Contributions For Special Contributors) Regulations, 1989.

S.I. No. 302 of 1989.

SOCIAL WELFARE (COLLECTION OF EMPLOYMENT CONTRIBUTIONS FOR SPECIAL CONTRIBUTORS) REGULATIONS, 1989.

The Minister for Social Welfare, in exercise of the powers conferred on him by sections 2 , 3 , 6 , 7 , 10 , 13 , 15 , 16 and 115 of the Social Welfare (Consolidation) Act, 1981 (No. 1 of 1981), hereby makes the following Regulations:—

1 Citation.

1. These Regulations may be cited as the Social Welfare (Collection of Employment Contributions for Special Contributors) Regulations, 1989.

2 Interpretation.

2. In these Regulations—

"the Principal Act" means the Social Welfare (Consolidation) Act, 1981 ;

"the Act of 1967" means the Income Tax Act, 1967 (No. 6 of 1967);

"special contributor" means an employed contributor in receipt of reckonable earnings as defined in article 4 of these Regulations;

"income tax year" means a year of assessment within the meaning of the Act of 1967;

"employer" means—

( a ) any person paying reckonable earnings to a special contributor and includes a person residing outside the State who, or a body incorporated or formed outside the State which, pays reckonable earnings in respect of employment to a special contributor exercising that employment within the State, or

( b ) in the case of employment as a member of the crew of a fishing vessel where the special contributor is wholly remunerated by a share in the profits or the gross earnings of the working of the vessel—

(i) the bailee is the person treated as employer where the vessel is being purchased under a hire purchase agreement,

(ii) the lessee is the person treated as the employer where the vessel is being leased,

(iii) the owner of the vessel is the person treated as the employer in any other case;

"income tax month" means a month beginning on the 6th day of any of the months of April to March in any contribution year and ending on the 5th day of the following month;

"the Minister" means the Minister for Social Welfare.

3 Revocation of regulations.

3. The Social Welfare (Collection of Employment Contributions for Special Contributors) Regulations, 1979 ( S.I. No. 120 of 1979 ) are hereby revoked.

4 Determination of reckonable earnings.

4. (1) For the purposes of these Regulations "reckonable earnings" means—

( a ) salaries, wages and other similar remuneration derived from insurable employment or insurable (occupational injuries) employment to which the provisions of the Act of 1967 (other than Chapter IV of Part V) apply or would apply if the employed contributor in receipt of the remuneration were resident in the State but without regard to section 192 of that Act,

( b ) payments to persons attending or engaged in courses or schemes provided or approved under—

(i) section 4 of the Labour Services Act, 1987 (No. 15 of 1987), or

(ii) section 4 of the Agriculture (Research, Training and Advice) Act, 1988 (No. 18 of 1988),

( c ) payments to persons attending or engaged in courses or schemes provided or approved by CERT Limited.

(2) The amount of a special contributor's reckonable earnings for any contribution year shall be the amount of the remuneration which is paid to or for the benefit of that contributor in that contribution year.

(3) For the purposes of sub-article (2) of this article any sums deducted for any reason from any payment on account of a special contributor's remuneration which is or would, but for such deduction, be made in any contribution year shall be treated as paid to or for the benefit of the contributor in that contribution year.

5 Concurrent employment by two or more employers.

5. (1) For the purposes of section 10 (1) (d) of the Principal Act, a special contributor shall in a contribution year be regarded as being concurrently employed by two or more employers when—

( a ) at the commencement of such year, while in the employment of an employer, he is also employed by another employer or other employers, or

( b ) in the course of such year, while in the employment of an employer, he commences employment with another employer or with other employers.

(2) In this article "employer" shall, in addition to an employer as defined in article 2 of these Regulations, include a person paying reckonable earnings as defined in article 4 of the Social Welfare (Collection of Employment Contributions by the Collector-General) Regulations, 1989 ( S.I. No. 298 of 1989 ).

6 Recovery by employer of contributions due by employee.

6. (1) An employer shall, on making any payment of reckonable earnings to a special contributor, deduct from the earnings—

( a ) the amount of any employment contribution due by the contributor in respect of that payment of reckonable earnings, or

( b ) where the said amount cannot at the time of making such payment be ascertained, the amount reasonably believed by the employer to be so due.

(2) Where the amount deducted under sub-article (1) (b) of this article is greater than the amount due by the contributor the employer shall repay the difference to the contributor.

(3) Subject to sub-article (4) of this article, contributions payable by a special contributor shall not be recoverable from him by his employer otherwise than by deduction in accordance with sub-article (1) of this article.

(4) Where an employer on making any payment of reckonable earnings to a special contributor deducts therefrom an amount less than the amount of the employment contribution due by the contributor, the Minister, on being satisfied that the employer took reasonable care to comply with the provisions of these Regulations and that the under-deduction was due to an error made in good faith, may direct that the amount of the under-deduction shall be recovered by deduction from any subsequent payment of reckonable earnings to that contributor during the same contribution year.

7 Intermediate employers.

7. (1) Where a special contributor works under the general control and management of a person who is not his immediate employer, that person (referred to hereafter in this article as the principal employer) shall be deemed to be the employer for the purposes of the Principal Act, and the immediate employer shall furnish the principal employer with such particulars of the special contributor's reckonable earnings as may be necessary to enable the principal employer to comply with the provisions of these Regulations.

(2) Where the special contributor's reckonable earnings are actually paid to him by the immediate employer—

( a ) the immediate employer shall be notified by the principal employer of the amount of contributions to be deducted or repaid when the reckonable earnings are paid to the contributor, and shall deduct or repay the amount so notified to him accordingly, and

( b ) the principal employer shall make a corresponding deduction or addition on making to the immediate employer the payment out of which the said reckonable earnings will be paid.

8 Payment of employment contributions by employer.

8. An employer shall remit to the Department within nine days from the end of every income tax month the amount of the special contributor's contributions deductable on payment of reckonable earnings to each special contributor employed by him in that month, together with the appropriate amount by way of employer's contributions in respect of each such contributor in that month.

9 Returns by employers at end of contribution year.

9. An employer shall furnish to the Department within twenty-five days from the end of a contribution year or from the day in a contribution year in which he ceases to be an employer for the purpose of these Regulations—

( a ) a return, in a form provided or approved by the Minister, in respect of each special contributor employed during the course of that year showing—

(i) the total employment contributions payable by the contributor in the contribution year,

(ii) the total employment contributions which the employer was liable to remit for the contribution year,

(iii) the number of contribution weeks in the contribution year in which the contributor was in insurable employment,

(iv) the dates of commencement and cessation of employment occurring within the contribution year,

(v) particulars relating to—

(A) the rate of employment contribution applicable to the contributor at the commencement of the contribution year, or at the date of commencement of the employment (if later), and

(B) where any change in his rate of contribution occurred during the year, the rate of employment contribution applicable to the contributor at the end of the contribution year or at the cessation of employment (if earlier), and the number of contribution weeks during the year in which the contributor was in insurable employment to which that rate of employment contribution refers, and

(vi) the total reckonable earnings in the contribution year, and

( b ) a statement, in a form provided or approved by the Minister, showing the total employment contributions which the employer was liable to remit in respect of every contributor in the contribution year.

10 Issuing of certificate to employee at end of contribution year.

10. (1) Within nine days from the end of a contribution year an employer shall give to each special contributor in his employment on the last day of the contribution year a certificate showing in respect of the employment—

( a ) the total employment contributions deducted from the reckonable earnings of the contributor during the contribution year,

( b ) the total employment contributions which the employer was liable to remit for the contribution year,

( c ) the number of contribution weeks in the contribution year in which the contributor was in insurable employment,

( d ) the date of commencement of the employment where it occurred during the contribution year,

( e ) particulars relating to—

(i) the rate of employment contribution applicable to the contributor at the commencement of the contribution year, or at the date of commencement of the employment (if later), and

(ii) where any change in his rate of contribution occurred during the year, the rate of employment contribution applicable to the contributor at the end of the contribution year and the number of contribution weeks during the year in which the contributor was in insurable employment to which that rate of employment contribution refers, and

( f ) the total reckonable earnings in the contribution year.

(2) The certificate specified in sub-article (1) of this article shall be in such form as may be provided or approved by the Minister.

11 Issuing of certificate to employee on cessation of employment.

11. (1) An employer shall give to each special contributor on the cessation of employment a certificate showing in respect of the employment—

( a ) the total employment contributions which the employer was liable to remit for the contribution year up to and including the date of the cessation of employment,

( b ) the number of contribution weeks in the contribution year in which the contributor was in insurable employment, up to and including the date of the cessation of employment,

( c ) the date of commencement of the employment where it occurred during the contribution year,

( d ) the date of cessation of employment,

( e ) particulars relating to the rate of employment contribution applicable to the contributor at the date of the cessation of employment, and

( f ) the total reckonable earnings in the contribution year up to and including the date of the cessation of employment.

(2) The certificate specified in sub-article (1) of this article shall be in such form as may be provided or approved by the Minister.

12 Calculation of amount of employment contributions.

12. Employment contributions payable by or in respect of a special contributor shall be calculated to the nearest £0.01 and any amount of £0.005 or less shall be disregarded.

13 Return of sums paid in error by way of employment contributions.

13. The return by virtue of the provisions of section 16 of the Principal Act of sums paid to the Minister by way of employment contributions shall be made by the Minister.

14 Estimation of amount of employment contributions due.

14. (1) Where a deciding officer has reason to believe that the total amount of employment contributions which an employer was liable to remit in relation to any period was greater than the amount of contributions (if any) paid by the employer in respect of that period, the deciding officer may estimate the amount of employment contributions which should have been remitted by the employer in relation to that period and serve notice on the employer specifying—

( a ) the total amount of contributions so estimated,

( b ) the total amount of contributions (if any) remitted by the employer in relation to the period in question, and

( c ) the balance of contributions based on such estimate remaining unpaid.

(2) Where a notice is served under sub-article (1) of this article the following provisions shall apply—

( a ) the employer may, if he claims that the balance of contributions so remaining unpaid exceeds the balance which he was liable to remit, appeal against the decision of the deciding officer by giving notice in that behalf, in writing, to the Minister within the time specified in the Social Welfare (Insurance Appeals) Regulations, 1952 ( S.I. No. 376 of 1952 ), for the making of appeals, and

( b ) on the expiration of the time so specified if no such appeal is made, or on final determination by the appeals officer if an appeal is made, the balance of contributions (if any) remaining unpaid as specified in the notice or the amended balance of contributions as determined by the appeals officer, as the case may be, shall be recoverable by the Minister as unpaid employment contributions.

(3) Where a notice under sub-article (1) of this article is sent by post it shall be deemed to have been received by the person to whom it is addressed on the date on which it would be received in the ordinary course of post unless the contrary is proved.

15 Charging of interest on arrears of employment contributions.

15. (1) Where any amount, including an amount estimated under the provisions of article 14 of these Regulations, which an employer is liable to pay to the Minister in respect of an employment contribution is not so paid, simple interest on the amount shall be paid by the employer and such interest shall be calculated—

( a ) from the expiration of the time specified in article 8 of these Regulations for the payment of the amount, and

( b ) at the rate at which, for the time being, interest is chargeable on unpaid income tax under section 129 of the Act of 1967.

(2) Interest charged on employment contributions shall be collected and be recoverable by the Minister and paid into the Social Insurance Fund.

16 Employers' records.

16. (1) Employers shall record the following particulars in respect of each special contributor employed in a contribution year—

( a ) the amount of each payment of reckonable earnings,

( b ) the employment contribution payable by the contributor in respect of each payment of reckonable earnings,

( c ) the total contributions which the employer is liable to remit in respect of each payment of reckonable earnings,

( d ) the dates of commencement and cessation of employment occurring within the contribution year,

( e ) particulars relating to—

(i) the rate of employment contribution applicable to the contributor at the commencement of the contribution year, or at the date of commencement of the employment (if later), and

(ii) where any change in his rate of contribution occurred during the year, the date on which such change occurred, the rate of employment contribution applicable to the contributor at the end of the contribution year or at the date of cessation of employment (if earlier) and the number of contribution weeks during the year in which the contributor was in insurable employment to which that rate of employment contribution refers,

(f) each contribution week of insurable employment.

(2) The records specified in sub-article (1) of this article shall be in a form approved by the Minister and shall be retained by employers for a period of six years after the end of the contribution year to which they refer.

17 Notification of information regarding special contributors.

17. (1) The employer of a special contributor shall send to the Department notification of his name and address and the name and address of the special contributor within 14 days of the commencement of the employment.

(2) When a change occurs in a name or address which has been notified under this article the employer shall send a notification of the change to the Department within 14 days of the change.

(3) Where an employer ceases to employ a special contributor he shall notify the Department within 14 days of the cessation of employment of the name and address of the contributor, the date on which the employment ceased and the total amount of reckonable earnings paid to the contributor for the contribution year up to and including the date of cessation of employment.

18 Monthly returns by employers of share fishermen.

18. An employer, as defined in article 2 (b) of these Regulations, shall within nine days from the end of every income tax month, send to the Department a return, in a form provided or approved by the Minister, showing in respect of each special contributor employed by him during each contribution week ended in that income tax month—

( a ) the reckonable earnings of the special contributor for each contribution week;

( b ) the amount of employment contribution payable by the special contributor for each contribution week;

( c ) the amount of employment contribution which the employer was liable to remit to the Department for each contribution week;

( d ) the rate of employment contribution applicable to the special contributor for each contribution week;

( e ) the day or days of each contribution week on which the special contributor was employed.

19 Records to be kept by employers of share fishermen.

19. (1) An employer, as defined in article 2 (b) of these Regulations, shall record the following particulars in respect of each special contributor employed by him during each contribution week ended in every income tax month—

( a ) the reckonable earnings of the special contributor for each contribution week;

( b ) the amount of employment contribution payable by the special contributor for each contribution week;

( c ) the amount of employment contribution which the employer was liable to remit to the Department for each contribution week;

( d ) the rate of employment contribution applicable to the special contributor for each contribution week;

( e ) the day or days of each contribution week on which the special contributor was employed.

(2) The records specified in sub-article (1) of this article shall be in a form approved by the Minister and shall be retained by an employer for a period of six years after the end of the contribution year to which they refer.

20 Inspection of records by employee.

20. A special contributor shall be entitled to inspect the record specified in article 16 or 20 of these Regulations, as the case may be, in respect of him or to obtain a statement of such record from his employer once in every period of three months.

21 Furnishing of information to inspector.

21. (1) In this article "inspector" means a person appointed under section 114 of the Principle Act.

(2) An employer shall, on receipt by him from an inspector of a notice in writing addressed to him at the address at which he resides or carries on business and incorporating or having annexed to it a form of declaration, furnish on the said form of declaration such information as is demanded in the notice in respect of any special contributor who is or has been in his employment and shall sign and otherwise complete the declaration and deliver the same by hand or by registered post to the inspector, within the time specified by the inspector not being less than six days from the date of such notice.

(3) Where a notice under sub-article (2) of this article is sent by post it shall be deemed to have been received by the person to whom it is addressed on the date on which it would be received in the ordinary course of post unless the contrary is proved.

22 Outworkers.

22. (1) Subject to sub-articles (2) and (3) of this article, the period of employment of an outworker shall be the period between the date on which articles or materials are given out to the outworker for any of the purposes specified in paragraph 7 of Part I of the First Schedule to the Principle Act and the next subsequent date on which finished articles or materials are returned to the employer, excluding any day of duly notified incapacity for work, and for the purposes of payment of employment contibutions any payment made by the employer to the outworker for or on account of work done on the said articles or materials shall be deemed to have been made in respect of the said period of employment.

(2) Where part only of articles or materials given out to an outworker are returned to the employer any articles or materials retained by the outworker subsequent to the date of such return shall be deemed to have been given out on that date.

(3) In sub-article (1) of this article "duly notified incapacity for work" has the meaning assigned to it in article 3 of the Social Welfare (Contributions) Regulations, 1953 ( S.I. No. 5 of 1953 ).

23 Breach of regulations.

23. A person who contravenes or fails to comply with these Regulations shall be guilty of an offence and shall be liable at the discretion of the court—

( a ) on summary conviction of such offence to a fine not exceeding £1,000 or to imprisonment for a term not exceeding one year or to both such fine and such imprisonment, or

( b ) on conviction on indictment of such offence to a fine not exceeding £10,000 or to imprisonment for a term not exceeding three years or to both such fine and such imprisonment and, in the case of a continuing offence, to a further fine not exceeding £10,000 in respect of each day on which the offence is continued.

24 Time for payment of employment contributions.

24. For the purposes of section 115 (2) of the Principal Act the time within which any employment contribution shall be paid by an employer shall be nine days from the end of the income tax month during which the payment of reckonable earnings to which the contribution relates was made.

25 Application of regulations.

25. Articles 9, 10, 11, 16 and 17 of these Regulations shall not apply to an employer as defined in article 2 (b) of these Regulations.

GIVEN under the Official Seal of the Minister for Social Welfare

this 9th day of November, 1989.

MICHAEL WOODS,

Minister for Social Welfare.

The Minister for Finance hereby consents to the making of the foregoing Regulations.

GIVEN under the Official Seal of the Minister for Finance this

9th day of November, 1989.

ALBERT REYNOLDS,

Minister for Finance.

EXPLANATORY NOTE.

These regulations consolidate the existing provisions in relation to the collection of employment contributions in respect of employees who are not within the PAYE system and who are referred to in the Regulations as "special contributors" and extend the provisions to cover share fishermen who do not come within the PAYE system.

The Regulations prescribe the duties of employers regarding deducting, remitting and accounting for employment contributions, the keeping of records and supply of information regarding such employees. The Regulations also entitle a special contributor to inspect his record or to obtain a statement of the record from his employer.

The Regulations prescribe how the amount of a special contributor's reckonable earnings is to be determined and define the circumstances in which he is to be regarded as being concurrently employed by two or more employers.

Other matters dealt with in the Regulations include the time for payment of employment contributions, the estimation of amounts due and the charging of interest on arrears of employment contributions. Penalties for breaches of the Regulations are also provided for.