We are coming up to that time of year again when the P11Ds will be issued. Coming with that obligation is the question, “Who am I legally obliged to give it to?”
So, it is worthwhile covering the topic again.
It is Regulation 85 of the Income Tax PAYE Regulations 2003 that is the main legislative reference, which says that the employer is to return the P11D (or P9D) to HMRC “before 7 July following the end of the tax year”. In effect, this means that they must be with HMRC on or before 6 July, and this applies to all P11Ds and P9Ds relevant to the preceding tax year.
The same is not true when it is issued to employees. Regulation 94 of the same 2003 regulations says that a completed form must only be given to the employee if they were employed on the last day of the tax year. So, employers have a legal obligation to complete one for everyone and give to HMRC, but only those employed on 5 April are entitled to receive one as well.
So what happens if the employee was in your employment on 5 April but, by the time the P11Ds are issued, they have left? Look at Regulation 94 of the 2003 regulations:
• An employee that was employed on 5 April and has subsequently left is still entitled to a P11D by 6 July. Reg. 94 states that the employer’s obligation to provide the information is met if the P11D or P9D is sent or delivered to the employee’s last known address.
What about employees that have left midway through the year? Again, Regulation 94 gives the answer:
• There is no legal obligation for the employer to automatically send the P11D or P9D to the employee who left.
• However, the employee is entitled to make a written request within three years of the tax year. If it is requested, the employer must provide this within 30 days (or within 30 days of 6 July following the tax year in question, if this is later.
The “three years rule” is written in Regulation 97 of the 2003 regulations under “Retention of employer PAYE records”. This rule applies to all payroll records, not just P11D information, and says “an employer must keep and preserve records for not less than three years after the end of the tax year to which they relate…”
Of course, an employer may choose to send all P11Ds out, regardless of whether the employee is a leaver. It’s always nice to know the legislative standpoint though!