S.I. No. 298/1989 - Social Welfare (Collection of Employment Contributions by The Collector-General) Regulations, 1989.

S.I. No. 298 of 1989.

SOCIAL WELFARE (COLLECTION OF EMPLOYMENT CONTRIBUTIONS BY THE COLLECTOR-GENERAL) 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 by the Collector-General) 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);

"the Regulations of 1960" means the Income Tax (Employments) Regulations, 1960 ( S.I. No. 28 of 1960 );

"the (No. 2) Regulations of 1960" means the Income Tax (Employments) (No. 2) Regulations, 1960 ( S.I. No. 166 of 1960 );

"casual employee" has the meaning assigned to it in Regulation 47 of the Regulations of 1960 (inserted by the (No. 2) Regulations of 1960);

"employee" means an employed contributor in receipt of reckonable earnings;

"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.

3 Revocation of regulations.

3. The Regulations specified in the Schedule to these Regulations are hereby revoked to the extent specified in column 3 of that Schedule.

4 Determination of reckonable earnings.

4. For the purposes of these Regulations, "reckonable earnings" means emoluments, derived from insurable employment or insurable (occupational injuries) employment, to which Chapter IV of Part V of the Act of 1967, applies but without regard to section 192 of that Act, (other than non-pecuniary emoluments), reduced by so much of the allowable contribution referred to in Regulations 59 and 60 of the Regulations of 1960 (inserted by the Income Tax (Employments) Regulations, 1972 ( S.I. No. 260 of 1972 )) as is deducted on payment of those emoluments.

5 Concurrent employment by two or more employers.

5. For the purposes of section 10 (1) (d) of the Principal Act, an employed 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.

6 Recovery by employer of contributions due by employee.

6. (1) An employer shall, on making any payment of reckonable earnings to an employed 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) A contribution payable by an employed contributor shall not be recoverable from him by his employer otherwise than by deduction in accordance with sub-article (1) of this article or under the provisions of Part IV of the Regulations of 1960, as applied to employment contributions.

7 Remittance of employment contributions by employer to the Collector-General.

7. (1) Employment contributions payable in respect of reckonable earnings shall be collected and be recoverable by the Collector-General and accounted for by him and paid into the Social Insurance Fund.

(2) Employment contributions payable in respect of reckonable earnings shall be remitted by the employer to the Collector-General.

8 Returns by employers at end of contribution year.

8. An employer shall furnish to the Collector- General 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 who is required to send a notification to the Revenue Commissioners under Regulation 8 (1) of the Regulations of 1960—

( a ) a return, in a form provided or approved by the Revenue Commissioners, in respect of each employee employed during the course of that year showing—

(i) the total employment contributions payable by the employee 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 employee was in insurable employment with the employer,

(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 employee 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 employee 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 employee 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, declaration and certificate, in such form as may be provided or approved by the Revenue Commissioners, showing the total employment contributions which the employer was liable to remit in respect of every employee in the contribution year.

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

9. (1) Within nine days from the end of a contribution year an employer shall give to each employee 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 employee 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 employee 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 employee 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 employee at the end of the contribution year and the number of contribution weeks during the year in which the employee 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 Revenue Commissioners.

10 Issuing of certificate to employee on cessation of employment.

10. (1) An employer shall give to each employee 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 employee 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 ) particulars relating to the rate of employment contribution applicable to the employee at the date of the cessation of employment, and

( e ) 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 Revenue Commissioners.

11 Calculation of amount of employment contributions.

11. Employment contributions payable by or in respect of an employee shall be calculated to the nearest £0.01 and any amount of £0.005 or less shall be disregarded.

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

12. The return by virtue of the provisions of section 16 of the Principal Act of sums paid to the Collector-General by way of employment contributions shall be made by the Collector-General or, where appropriate, by the Minister for Social Welfare.

13 Charging of interest on arrears of employment contributions.

13. (1) Where any amount which an employer is liable to pay to the Collector-General in respect of an employment contribution is not so paid, simple interest on the amount shall be paid by the employer to the Collector-General and such interest shall be calculated—

( a ) from the expiration of the period specified in the Regulations of 1960, as applied to employment contributions, 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 on employment contributions shall be collected and be recoverable by the Collector-General and accounted for by him and paid into the Social Insurance Fund.

14 Employers records.

14. (1) Employers shall record the following particulars in respect of each employee employed in a contribution year—

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

( b ) the employment contribution payable by the employee 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 employee 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 employee 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 employee 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 Revenue Commissioners and shall be retained by employers for a period of six years after the end of the contribution year to which they refer.

15 Inspection of records by employee.

15. An employee shall be entitled to inspect the record specified in article 14 of these Regulations in respect of him or to obtain a statement of such record from his employer once in every period of three months.

16 Inspection of employers' records by authorised officer.

16. (1) In this article "authorised officer" means an officer of the Revenue Commissioners authorised by them in writing for the purpose of this article.

(2) An employer or a person employed by the employer at the employer's premises shall, upon request made to him by an authorised officer at the employer's premises, produce to the authorised officer for inspection the records specified in article 14 of these Regulations.

(3) Where in pursuance of this article an authorised officer requests production of employer's records, he shall, on request, show his authorisation for the purposes of this article to the person concerned.

17 Furnishing of information to inspector.

17. (1) In this article "inspector" means a person appointed under section 114 of the Principal 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 employed 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 addresed on the date on which it would be received in the ordinary course of post unless the contrary is proved.

18 Casual employees.

18. Articles 8, 9, 10 and 14 of these Regulations shall not apply as respects casual employees,

19 Returns by employers for casual employees.

19. (1) An employer shall on every Saturday send to the Collector-General a return, in a form provided or approved by the Revenue Commissioners, showing in respect of each casual employee to whom he made any such payment of emoluments as is referred to in Regulation 8 of the Regulations of 1960 (inserted by the (No. 2) Regulations of 1960) at any time during the week ended on the previous Wednesday—

( a ) the amount of employment contribution payable by the employee in that week;

( b ) the amount of employment contribution which the employer was liable to remit to the Collector-General;

( c ) the rate of employment contribution applicable to the employee;

( d ) the day or days of that week on which the employee was employed.

(2) In this article "week" has the meaning assigned to it by Regulation 49 of the Regulations of 1960.

20 Outworkers.

20. (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 Principal 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 contributions 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 ).

21 Breach of regulations.

21. 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.

22 Assignment of prosecution function to Collector-General and time for payment of employment contributions.

22. (1) Notwithstanding section 20 (1) of the Social Welfare Act, 1988 (No. 7 of 1988), a prosecution for an offence under section 115 (2) of the Principal Act or under these Regulations may be brought at the suit of the Collector-General.

(2) (a) In this sub-article "relevant period" means the income tax month or such longer period (not exceeding a year) as the Collector-General may authorise in writing (unless the employer objects).

( b ) For the purposes of section 115 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 relevant period during which the payment of reckonable earnings to which the contribution relates was made.

SCHEDULE

Article 3

Regulations Revoked

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 within the PAYE system. The Regulations assign to the Collector- General the responsibility for the collection of employment contributions and prescribe the duties of employers regarding deducting, remitting and accounting for employment contributions, the keeping of records and the inspection of such records by authorised officers. The Regulations also entitle an employee to inspect his record or to obtain a statement of the record from his employer.

The Regulations prescribe how the amount of an insured person's reckonable earnings is to be determined and define the circumstances in which an employee is to be regarded as being concurrently employed by two or more employers.

Other matters dealt with in the regulations include the charging of interest on arrears of employment contributions, penalties for breaches of the regulations, the assignment of powers of prosecution to the Collector-General in relation to certain offences and the option for small-scale employers to remit social insurance contributions on an annual basis.