Change of HMRC view will apply from April 2013
On 4 April HMRC announced that it has changed its view of the law covering the National Insurance contributions (NICs) liability of sleeping and inactive limited partners. From 6 April 2013 all partners will be required to pay NICs.
Full details are in an HMRC statement Important information for all sleeping and limited partners and agents
Partners will be required to pay Class 2 and Class 4 NICs on the grounds that they are self-employed earners.
Sleeping partners and inactive limited partners are those who take no active part in running the business.
The consequences of this change of view are:
- Sleeping and inactive limited partners who are not already paying Class 2 NICs must advise HMRC of their self-employed status and arrange to pay NICs or seek exception/deferment, etc, according to their individual circumstances.
- Sleeping and inactive limited partners should account for Class 4 NICs liability, if any, for the 2013/14 tax year of assessment and for subsequent tax years.
- Some partners may have paid Class 2 and 4 NICs for past years. HMRC considers that they will not be entitled to a refund of Class 2 NICs or to any overpayment relief in respect of Class 4 NICs.
- Partners who have not paid Class 2 or Class 4 NICs for a past period will not be required to pay those contributions.
- There may be instances where some sleeping and inactive limited partners may wish to pay Class 2 and 4 NICs for years prior to 2013/14 in order to qualify for, or improve, contributory benefits.
The reasons for this new view are:
Class 2 NICs
HMRC says that sleeping and inactive limited partners are liable to pay Class 2 NICs because they are “gainfully employed” as self-employed earners for the purposes of s2(1)(b) of the Social Security Contributions and Benefits Act 1992 (SSCBA 1992) because:
“Employment” as defined in s122, SSCBA 1992 includes business and s1(1) of the Partnership Act 1890 provides that “Partnership is the relation which subsists between persons carrying on a business in common with a view of profit”; and
Section 2(1)(b), SSCBA imposes no requirement that partners have to be active in the business.
Class 4 NICs
HMRC says that sleeping and inactive limited partners are liable to pay Class 4 NICs because:
in order for there to be a partnership for the purposes of the Partnership Act 1890 the persons making up the partnership (whether general, sleeping or limited partners) will all be “carrying on a business in common with a view of profit”; and
Section 15, SSCBA 1992 imposes no requirement that partners have to be active in the business.
