Citation, commencement and application

1. —(1) These Regulations may be cited as the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) (Amendment) Regulations 2022.

(2) These Regulations come into force on 1st June 2022, subject to paragraphs (3) to (5).

(3)Regulation 11D of the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2012( 2 ) (inserted by regulation 7 of these Regulations) applies only in relation to transactions entered into, firm approaches made, and proposals that are made available for implementation, on or after 1st June 2022.

(4) So far as is applicable to a person who is not a promoter in relation to the arrangements or proposed arrangements, regulation 13A of the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2012(inserted by regulation 11 of these Regulations) applies only where a person is providing (or has provided) services to the client (within the meaning of that regulation) on or after 1st June 2022.

(5)Regulation 21C(1)(c) (inserted by regulation 20(a) of these Regulations) applies—

(a) in relation to a person who is or has been a promoter in relation to arrangements or proposed arrangements, regardless of when that is or was the case, and

(b) in relation to a person who is or has been otherwise involved in the supply of arrangements or proposed arrangements, only where that person is so involved on or after 1st June 2022.

(6) Expressions used in this regulation and Part 2 of the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2012 have the same meaning in this regulation as they have in that Part.

Amendment of the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2012

2. The National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2012 are amended as follows.

3. In regulation 2 (interpretation), in the definition of “reference number”, for “the reference number” substitute “a reference number” .

4. After regulation 5(1) (application of Part 2) insert—

“ (1A) This Part also applies to arrangements and proposals which HMRC reasonably suspect to be notifiable contribution arrangements or notifiable contribution proposals (as the case may be). ” .

5. In regulation 5(2) (provisions corresponding to Part 7 of the Finance Act 2004), in the table—

(a) after the row relating to section 310C insert—

(b) for the row relating to section 311 substitute—

(c) after the row relating to section 311 insert—

(d) for the row relating to section 312 substitute—

(e) after the row relating to section 312 insert—

(f) in the row relating to section 312B, omit “to promoter”;

(g) for the row relating to section 313 substitute—

6. In regulation 7 (meaning of promoter)—

(a) in paragraph (6) omit “notifiable contribution”;

(b) in paragraph (8) for “proposed contributionarrangements” substitute “proposed arrangements” .

7. After regulation 11C (duty of promoters to provide updated information), insert—

“ Notice of potential allocation of reference number: arrangements and proposals suspected of being notifiable

11D. —(1) This regulation applies where—

(a) HMRC have become aware that—

(i) a transaction forming part of arrangements has been entered into,

(ii) a firm approach has been made to a person in relation to a proposal for arrangements, with a view to making the proposal available for implementation, or

(iii) a proposal for arrangements is made available for implementation, and

(b) HMRC reasonably suspect that the arrangements are notifiable contribution arrangements, or that the proposal is a notifiable contribution proposal.

(2) HMRC may issue a notice to a person explaining that, unless the person is able to satisfy HMRC, before the end of the notice period, that the arrangements are not notifiable contribution arrangements or (as the case may be) the proposal is not a notifiable contribution proposal, HMRC may allocate a reference number to the arrangements or (in the case of a proposal) the proposed arrangements.

(3) But HMRC may not issue a notice under this regulation before the end of the period of 15 days beginning with the day on which they first become aware that the condition in sub-paragraph (a)(i), (ii) or (iii) of paragraph (1) is met.

(4) A notice under this regulation must be issued to any person who, on the day the notice is issued, HMRC reasonably suspect to be a promoter in relation to the arrangements or proposed arrangements.

(5) A notice under this regulation may be issued to any other person who HMRC reasonably suspect to be involved in the supply of the arrangements or proposed arrangements. ” .

8. For regulation 12 (arrangements to be given reference number), substitute—

“ Allocation of reference number to arrangements

12. —(1) This regulation applies in—

(a) a paragraph (2) case, or

(b) a paragraph (3) case.

(2) A “paragraph (2) case” is a case where a person complies, or purports to comply, with regulation 8(1) or (3), 10(1) or 11 in relation to any notifiable contribution proposal or notifiable contribution arrangements.

(3) A “paragraph (3) case” is a case where—

(a) notice in relation to arrangements or proposed arrangements has been issued in accordance with regulation 11D (notice of potential allocation of reference number),

(b) the notice period has expired, and

(c) the person to whom the notice was given has failed to satisfy HMRC, before the expiry of the notice period, that the arrangements are not notifiable contribution arrangements or (as the case may be) that the proposal is not a notifiable contribution proposal.

(4) “ The notice period ” means—

(a) the period of 30 days beginning with the day on which the notice under regulation 11D is issued, or

(b) such longer period as HMRC may direct.

(5) HMRC may allocate a reference number to the arrangements, or in the case of a proposal, the proposed arrangements, subject to paragraph (6).

(6) HMRC may not allocate a reference number to arrangements or proposed arrangements after the time limit for doing so.

(7) The time limit for allocating a reference number is—

(a) in a paragraph (2) case, the end of the period of 90 days beginning with the compliance, or purported compliance, with regulation 8(1) or (3), 10(1) or 11, as the case may be;

(b) in a paragraph (3) case, the end of the period of one year beginning with the day after the end of the notice period specified in paragraph (4).

(8) HMRC may at any time withdraw a reference number allocated to arrangements in a paragraph (3) case.

(9) The allocation of a reference number to arrangements or proposed arrangements is not to be regarded as constituting an indication by HMRC that the arrangements could as a matter of law result in the obtaining by any person of an advantage. ” .

9. After regulation 12, insert—

“ Duty of HMRC to notify persons of reference number

12A. —(1) If a reference number is allocated in a case within regulation 12(2), HMRC must notify the following of the number—

(a) the person who has complied, or purported to comply, with regulation 8(1) or (3), 10(1) or 11, and

(b) where the person has complied, or purported to comply, with regulation 8(1) or (3), any other person—

(i) who is a promoter in relation to the proposal (or arrangements implementing it) or the arrangements (or a proposal implemented by them), and

(ii) whose identity and address have been notified to HMRC by the person who complied, or purported to comply, with regulation 8(1) or (3).

(2) If a reference number is allocated in a case within regulation 12(3), HMRC must notify the following of the number—

(a) any person who HMRC reasonably suspect to be, or to have been, a promoter in relation to the arrangements or the proposed arrangements, and

(b) any other person who HMRC reasonably suspect to be, or to have been, involved in the supply of the arrangements or the proposed arrangements.

(3) The duty in paragraph (2) applies irrespective of whether the notice under regulation 11D as a result of which the reference number was allocated has been issued to the person concerned.

Right of appeal: regulation 12(3) case

12B. —(1) This regulation applies where HMRC have allocated a reference number to arrangements or proposed arrangements in a case within regulation 12(3).

(2) A person who has been notified of the reference number may appeal to the tribunal against its allocation.

(3) An appeal under this regulation may be brought only on the following grounds—

(a) that, in issuing the notice under regulation 11D as a result of which the reference number was allocated, HMRC did not act in accordance with that regulation;

(b) that, in allocating the reference number, HMRC did not act in accordance with regulation 12;

(c) that the arrangements are not in fact notifiable contribution arrangements or, in the case of proposed arrangements, that the proposal for the arrangements is not in fact a notifiable contribution proposal.

(4) Notice of appeal under this regulation must be given to the tribunal in writing before the end of the period of 30 days beginning with the day on which the person is notified of the number by HMRC.

(5) Notice may be given after that period if the tribunal give permission.

(6) The notice of appeal must specify the grounds of appeal.

(7) On an appeal under this regulation, the tribunal may affirm or cancel HMRC’s decision.

(8) If the tribunal cancel HMRC’s decision, HMRC must withdraw the reference number.

(9) Bringing an appeal under this regulation does not prevent—

(a) a power conferred by this Part from being exercised, or

(b) a duty imposed by this Part from continuing to apply.

Duty to provide further information requested by HMRC: regulation 12(3) case

12C. —(1) This regulation applies where HMRC have allocated a reference number to arrangements or proposed arrangements in a case within regulation 12(3).

(2) HMRC may require a relevant person to provide—

(a) specified information about the arrangements or proposed arrangements;

(b) documents relating to the arrangements or proposed arrangements.

(3) In paragraph (2), “ relevant person ” means—

(a) any person who HMRC reasonably suspect to be, or to have been, a promoter in relation to the arrangements or the proposed arrangements;

(b) any other person who HMRC reasonably suspect to be, or to have been, involved in the supply of the arrangements or the proposed arrangements.

(4) HMRC may require information or documents only if they have reasonable grounds for suspecting that the information or documents will assist them in considering the arrangements or proposed arrangements.

(5) Where HMRC impose a requirement on a person under paragraph (2), the person must comply with the requirement before the end of—

(a) the period of 10 working days beginning with the day on which HMRC imposed the requirement, or

(b) such longer period as HMRC may direct. ” .

10. In regulation 13 (duty of promoter to notify client of number)—

(a) in the heading, at the end insert “: regulation 12(2) case” ;

(b) in paragraph (2)—

(i) after “any reference number” insert “allocated in a case within regulation 12(2) or section 311(2)” ;

(ii) for “one reference number” substitute “one such reference number” .

11. After regulation 13, insert—

“ Duty to notify client of reference number: regulation 12(3) case

13A. —(1) This regulation applies where a person is providing (or has provided) services to another person (“ the client ”) in connection with arrangements or proposed arrangements.

(2) The person must, before the end of the period of 30 days beginning with the relevant date, provide the client with prescribed information relating to any reference number allocated in a case within regulation 12(3) or section 311(3) (or, if more than one, any one such reference number) that has been notified to the person (whether by HMRC or any other person) in relation to—

(a) the arrangements or proposed arrangements, or

(b) any arrangements substantially the same as the arrangements or the proposed arrangements (whether involving the same or different parties).

(3) In paragraph (2), “ the relevant date ” means the date on which the person has been notified of the reference number.

(4) HMRC may give notice that, in relation to arrangements or proposed arrangements specified in the notice, no person is under the duty imposed by paragraph (2) after the date specified in the notice. ” .

12. In regulation 14 (duty of client to notify parties of number)—

(a) in paragraph (1), after “prescribed information” insert “under regulation 13” ;

(b) in paragraph (1)(c) for “proposed notifiable arrangements, or notifiable arrangements, which are” substitute “any arrangements” ;

(c) after paragraph (1) insert—

“ (1A) This regulation also applies where a person (the “client”) to whom a person is providing (or has provided) services in connection with arrangements or proposed arrangements receives prescribed information under regulation 13A relating to the reference number allocated to—

(a) the arrangements,

(b) the proposed arrangements, or

(c) any arrangements substantially the same as the arrangements or proposed arrangements. ” ;

(d) in paragraph (2A)(b), for “contributionarrangements or proposed contributionarrangements” substitute “arrangements or proposed arrangements” ;

(e) in paragraph (3), for “notifiable contributionarrangements or a notifiable contribution proposal” substitute “arrangements or a proposal” .

13. In regulation 14A (duty of client to provide information to promoter)—

(a) in the heading omit “to promoter”;

(b) for paragraph (1) substitute—

“ (1) This regulation applies where a person (“ the client ”) has been provided with information under regulation 13(2) or regulation 13A(2) (prescribed information about reference number). ” ;

(c) in paragraph (2) for “promoter” substitute “person who provided the information” .

14. In regulation 15 (duty of parties to notifiable contribution arrangements to notify HMRC of number etc)—

(a) for the heading substitute “Duty of parties to notify HMRC of reference number etc” ;

(b) in paragraph (1) for “notifiable contributionarrangements” substitute “arrangements to which a reference number has been allocated” ;

(c) in paragraph (1)(a) omit “whether the reference number was allocated under regulation 12 or section 311,”;

(d) in paragraph (2) omit “notifiable contribution”.

15. In regulation 16 (duty to provide details of clients)—

(a) for paragraphs (1)(a) and (b) substitute—

“ (a) the promoter is subject to the requirement under regulation 13(2) to provide to the client prescribed information relating to the reference number allocated to—

(i) the arrangements, or

(ii) any arrangements substantially the same as the arrangements, or

(b) the promoter has failed to comply with regulation 8(1) or (3) in relation to the notifiable contribution arrangements (or the notifiable contribution proposal for them) but would be subject to that requirement if a reference number had been allocated to—

(i) the notifiable contribution arrangements, or

(ii) any arrangements substantially the same as the notifiable contribution arrangements. ” ;

(b) after paragraph (1) insert—

“ (1A) This regulation also applies where—

(a) a person (“ the provider ”) is providing (or has provided) services to another person (“ the client ”) in connection with arrangements or proposed arrangements, and

(b) the provider is subject to the requirement under regulation 13A(2) to provide to the client prescribed information relating to the reference number allocated to—

(i) the arrangements or proposed arrangements, or

(ii) any arrangements substantially the same as the arrangements or proposed arrangements. ” ;

(c) omit paragraph (2);

(d) in paragraph (3), after “the promoter” insert “or (as the case may be) provider” ;

(e) for paragraph (4) substitute—

“ (4) In paragraph (3) “ the relevant period ” means—

(a) in a case within paragraph (1), such period as is prescribed and is a period during which the promoter is or would be subject to the requirement mentioned in that paragraph;

(b) in a case within paragraph (1A), such period as is prescribed and is a period during which the provider is or would be subject to the requirement mentioned in that paragraph. ” ;

(f) after paragraph (5) insert—

“ (6) The provider need not comply with paragraph (3) in relation to any arrangements at any time after HMRC have given notice under regulation 13A(4) in relation to the arrangements. ” .

16. In regulation 16A (enquiry following disclosure of client details)—

(a) for paragraph (1)(a) substitute—

“ (a) a person (“the service provider”) is providing or has provided services to another person (“ the client ”) in connection with arrangements or proposed arrangements,

(aa) the service provider has provided HMRC with information in relation to the client under regulation 16, and ” ;

(b) in paragraph (2), in both places it occurs, for “promoter” substitute “service provider” ;

(c) in paragraph (3) for “promoter” substitute “service provider” .

17. In regulation 16B (duty of employer to notify HMRC of details of employees etc)—

(a) for paragraph (2) substitute—

“ (2) Condition A is that—

(a) a person who is a promoter in relation to notifiable contribution arrangements or a notifiable contribution proposal is providing (or has provided) services in connection with the arrangements or proposal to a person (“ the client ”); or

(b) a person is providing (or has provided) services in connection with arrangements or a proposal to a person (“ the client ”) ” ;

(b) in paragraph (3) after “regulation 13(2)” insert “or 13A(2)” ;

(c) in paragraph (4), in both places it occurs, omit “notifiable contribution”;

(d) in paragraph (4), in both places it occurs, substitute “arrangements” with “arrangement”;

(e) in paragraph (6)—

(i) in both places it occurs, omit “notifiable contribution”;

(ii) after “regulation 13(6)” insert “, 13A(4)” .

18. In regulation 21 (information to be provided in form and manner specified by HMRC), in paragraph (2)—

(a) after “11C,” insert “12C,” ;

(b) after “13(2),” insert “13A(2),” .

19. In regulation 21A (duty to provide additional information), in paragraphs (1) and (2), after “regulation 13(2)” insert “, 13A(2)” .

20. In regulation 21C (publication by HMRC)—

(a) for paragraph (1) substitute—

“ (1) HMRC may publish information about—

(a) any arrangements, or proposed arrangements, to which a reference number is allocated under regulation 12;

(b) where the reference number is allocated in a case within regulation 12(2), any person who is a promoter in relation to the arrangements or, in the case of proposed arrangements, the proposal;

(c) where the reference number is allocated in a case within regulation 12(3), any person who is or has been—

(i) a promoter in relation to the arrangements or proposed arrangements, or

(ii) otherwise involved in the supply of the arrangements or proposed arrangements. ” ;

(b) in paragraph (2)(a)—

(i) after “paragraph (1)(b)” insert “or (c)” ;

(ii) for “regulation 8, 10 or 11” substitute “any provision of this Part” ;

(c) for paragraph (2)(b) substitute—

“ (b) any ruling of a court or tribunal relating to—

(i) arrangements within paragraph (1)(a);

(ii) a person within paragraph (1)(b), in that person’s capacity as a promoter;

(iii) a person within paragraph (1)(c), in that person’s capacity as a promoter or a person otherwise involved in the supply of arrangements or proposed arrangements; ” ;

(d) in paragraph (2)(c) omit “notifiable contribution”;

(e) in paragraph (2)(d) omit “notifiable contribution”;

(f) in paragraph (2)(e), after “paragraph 1(b)” insert “or (c)” ;

(g) in paragraph (4) omit “notifiable contribution”;

(h) after paragraph (4) insert—

“ (4A) No information may be published under this regulation in respect of a person involved in the supply of arrangements or proposed arrangements where there are reasonable grounds for believing that the person’s involvement is limited to activities subject to legal professional privilege. ” ;

(i) in paragraph (5)—

(i) for “who is a promoter within paragraph (1)(b)” substitute “within paragraph (1)(b) or (c)” ;

(ii) at the end insert “or a person involved in the supply of arrangements or proposed arrangements.” ;

(j) in paragraph (6), for “a promoter within paragraph (1)(b)” substitute “a person within paragraph (1)(b) or (c)” ;

(k) after paragraph (6) insert—

“ (6A) Where a reference number is allocated in a case within regulation 12(3)—

(a) information that identifies a person within paragraph (1)(c) may not be published for the first time after the end of the period of one year beginning with the day on which the reference number is allocated;

(b) no information that identifies a person within paragraph (1)(c) may be published (or continue to be published) after the end of the period of one year beginning with the day on which it is first published.

(6B) In determining a period of one year for the purposes of paragraph (6A)(a) or (b), no account is to be taken of any period during which HMRC are prohibited from publishing the information because of proceedings before a court or tribunal. ” .

21. In regulation 21D (subsequent judicial rulings)—

(a) in paragraph (1)(a), in both places it occurs omit “notifiable contribution”;

(b) in paragraph (1)(b) for “contributionarrangements” substitute “arrangements” ;

(c) omit paragraph (7).

22. In regulation 22 (notification under Part 2)—

(a) in paragraph (1)(a)(i), for “or (ca)” substitute “, (ca) or (cc)” ;

(b) after paragraph (2)(cb) insert—

“ (cc) regulation 12C (duty to provide further information requested by HMRC: regulation 12(3) case), ” ;

(c) in paragraph (2)(d) after “reference number” insert “: regulation 12(2) case” ;

(d) after paragraph (2)(d) insert—

“ (da) regulation 13A(2) (duty to notify client of reference number: regulation 12(3) case), ” ;

(e) in paragraph (2)(ea) omit “to promoter”;

(f) in paragraph (2)(f) omit “of promoter”;

(g) in paragraph (2)(fa), for “(duty of promoter to provide further information)” substitute “(enquiry following disclosure of client details)” ;

(h) in paragraph (3)(b), at the beginning, insert “subject to paragraph 3B,” ;

(i) in paragraph (3), in the table, at the end insert—

(j) after paragraph (3) insert—

“ (3A) Paragraph 3B applies where—

(a) a person fails to comply with a provision mentioned in paragraph (2)(a), (b) or (c) in respect of arrangements or proposed arrangements, and

(b) a reference number is subsequently allocated to the arrangements or proposed arrangements in a case within regulation 12(3) (allocation of reference number to arrangements: paragraph (3) case).

(3B) Where this paragraph applies, the failure to comply is taken for the purposes of this regulation to have ceased on the day before the reference number is allocated, if it has not already ceased. ” ;

(k) after paragraph (4)(a) insert—

“ (aa) in the case of a penalty for a person’s failure to comply with regulation 12C, to the amount of any fees received, or likely to have been received by the person in connection with the arrangements, the proposed arrangements or the proposal; ” ;

(l) in paragraph (11) for “(duty of parties to notifiable contributionarrangements to notify HMRC of number, etc)” substitute “(duty of parties to notify HMRC of reference number etc)” ;

(m) in paragraph (14) for “a notifiable arrangements or proposed notifiable arrangements under Part 7” substitute “arrangements or a proposal within Part 7” .

23. In regulation 26 (the information regulations)—

(a) in paragraph (1)—

(i) for “notifiable contributionarrangements” substitute “arrangements” ; and

(ii) for “notifiable contribution proposals” substitute “proposed arrangements within Part 2” ;

(b) omit paragraph (4)(a);

(c) omit paragraph (5);

(d) omit paragraph (6A);

(e) in paragraph (8)—

(i) in substituted regulation 10(1), for “(duty of parties to notifiable contributionarrangements to notify HMRC of number, etc)” substitute “(duty of parties to notify HMRC of the reference number etc)” ;

(ii) in substituted regulation 10(1)(a)—

(aa) after “regulation 12” insert “or section 311” ;

(bb) in both places it occurs omit “notifiable contribution”;

(iii) in substituted regulation 10(3), in both places it occurs, omit “notifiable contribution”;

(iv) in substituted regulation 10(4), in both places it occurs, omit “notifiable contribution”;

(v) in substituted regulation 10(4)(a) omit “notifiable contribution”;

(f) after paragraph (9) insert—

“ (9A) In regulation 13(1)(ba) (prescribed information under section 313ZA: information and timing) for “section 311” substitute “section 311 or regulation 12 of the National Insurance Contributions (Application of Part 7 of the Finance Act 2004) Regulations 2012 (allocation of reference number to arrangements). ” ;

(g) omit paragraph (10);

(h) after paragraph 10A insert—

“ (10B) In regulation 13B (prescribed information under section 313ZC: information and timing)—

(a) in paragraph (2)(d) for “a tax advantage” substitute “an advantage” ;

(b) in paragraph (2)(e) for “a tax advantage” substitute “an advantage” ; ” ;

(i) omit paragraph (11).