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HMRC gets tougher on NI for landlords

23 July 2015
Income tax v NI contributions

NI contributions are in effect income tax by another name, and as you’d expect the rules are similar in many ways. But there are important differences and one of these has been HMRC’s treatment of property rental businesses. In the past it has treated rent as investment income, which is not liable to NI. But there have been further developments.

First signs of Class 2 trouble

We reported in 2014 ( yr.15, iss.2, pg.7 , see The next step ) that some tax inspectors were attempting to categorise rental income as earned income rather than investment income. However, this seemed to be limited to a relatively small number of cases, but the writing was on the wall. Now there’s been a further development.

Questionable guidance

HMRC has updated its NI guidance to tax inspectors indicating when they should treat rental profits as earned income on which Class 2 is due (see The next step ). It argues that Class 2 is payable where the level of activity by a landlord constitutes a business. It suggests this rule applies if significant time is spent providing services that go beyond the normal responsibilities of a landlord.

Retrospective only

It’s odd that HMRC should choose now to update its guidance on this matter because the rules relating to Class 2 NI changed on 5 April 2015 meaning that quite definitely it won’t apply to rental income from that date. You therefore only have to worry about years prior to 2015/16.

What if you get a Class 2 NI demand?

If you’re concerned after reading HMRC’s latest guidance, our advice is still to do nothing unless the Taxman contacts you. Even then we recommend you resist any demand for Class 2 contributions by referring to the case of Rashid v Garcia. The tribunal ruled that the letting of several properties did not give rise to a Class 2 liability despite above normal management activity by the landlord.

Tip 1. If you’re nervous or just don’t have the time to argue with HMRC you might decide to pay the relatively small amount of Class 2 contributions (£145 per year) just to get HMRC off your back. The good news is that if eventually HMRC comes to its senses and changes its mind you can reclaim the contributions you paid. Note. Unlike tax there’s no time limit on NI claims.

Tip 2. In the right circumstances it can work to your advantage to pay Class 2 contributions because they count as credits towards your state pension entitlement.

Class 2 pension credits

If you have no other income on which you’re liable to NI contributions, and don’t have sufficient years of NI credits (35) for a full state pension, Class 2 contributions are a cheap way to pay for them. Each year’s credit under the new rules is worth around £220 per annum in extra pension.

If HMRC demands Class 2 NI contributions on your rental business income, counter this by quoting the ruling in the Rashid case which states they aren’t payable in any circumstances. In any event a change in the rules mean that it cannot apply for 2015/16 and later years.

 

 
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